Breaking up may be hard to do, but for married expats it can be fraught with danger. Often there is a choice of where to divorce and where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is crucial.
The Eurostar divorce
England and Wales is perhaps most favourable to the financially weaker spouse. In expat circles this is often the wife for example if she moved abroad when her husband’s work took them there. It is favourable because in England and Wales maintenance is open-ended, meaning it must continue to be paid until the payor dies or their financial circumstances change. In Scotland, in most cases there is a three-year maximum term for maintenance and in most other EU states you have to show the court why you need the ongoing money. Clearly if this is the case the financially stronger party should use a foreign lawyer and the financially weaker party should get on the first plane back to England. The way the system works is that the place where you petition for divorce first gets jurisdiction over the case.
Prenup, we want prenup!
Financially weaker spouses should remember that prenuptial agreements, which are designed to protect pre-martial wealth, are not legally binding in England and Wales. Though they are not binding, a judge may take it on board when making a decision. In a very short marriage, the judge may well allow the prenup to stand, but in a longer marriage where the passage of time means the contents of the prenup are out of date, the chances are the judge will discount it.
Devil’s in the detail
In family cases, disclosure is crucial. English law requires a full and frank disclosure of a person’s financial position. If they lie, they could be convicted of contempt. In the well-publicised case of Young v Young the court’s patience finally snapped and the husband was sentenced to six months’ imprisonment for non-disclosure. In contrast, in Italy individuals give disclosure merely “on their honour”. Assets are much harder to trace without the full force of court orders to oblige disclosure.
English law takes a firm stance on enforcement which is backed up by international agreements with other countries. This allows English-made orders to be enforced abroad. Such countries include Australia, Canada, the USA and the member states of the EU.
Experienced divorce lawyers are all familiar with cross-border cases, and the complexities which make these divorces so difficult. No-one facing the devastating loss of a much-loved and trusting spouse wants to pull-the-plug on the marriage until the end is beyond doubt but by then, when realisation finally and cruelly dawns, it could be much too late. Consult an experienced lawyer, you can always withdraw the divorce petition if you wish.