Posts Tagged 'expat divorce'

Warning across waters

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well allow the prenup to stand, but in a longer marriage where the passage of time means the contents of the prenup are out of date, the chances are the judge will discount it.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.

Enforcement

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.

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Expat Divorce

Because the Mogers family team have collectively lived in countries such as Hong Kong, The Philippines and Nigeria we know it is hard enough to know where to turn to for a decent plumber, let alone specialist advice on matrimonial and family problems.

For those separating on British shores help is at hand in the form of Resolution – an organisation specifically set up by English family lawyers to help point separating couples in the right direction. However, in the event of a marriage or relationship breakdown between expatriates abroad, it is more difficult to know where to turn to. They will find themselves going through great anxiety facing questions such as “will I be able to stay here”, “who will sponsor the children and provide visas” and “what am I entitled to”. This is in addition to the normal emotions during a separation i.e. guilt, anger, sorrow and vulnerability. The sooner these issues are resolved, the better.

We often deal with enquiries that follow the pattern mentioned above. On a first meeting with a client we give an early consideration to the issue of jurisdiction. What is the appropriate forum for proceedings to be commenced? Jurisdictions to consider would be that of the client’s home country, the partner’s home country, or the jurisdiction of the host country if this is different.

Jurisdiction will largely depend on nationality, domicile and habitual residence of both parties. British expatriates are often unaware that divorce and financial matters can be dealt with swiftly through the English courts, without them even leaving the host country. A divorce is routinely carried out on paper, without attendance. It is not, as often thought, necessary to divorce in the place in which you were married.

Jurisdiction is a complex issue, and requires detailed consideration. Lengthy delays to any proceedings, amicable or otherwise, can take place if matters are commenced in the wrong jurisdiction. It is also important to be aware from the outset of the enforceability of any orders that are obtained. Some orders made by the English Courts may not be enforceable in the host country if they conflict with local laws. If separating couples seek comprehensive advice on all these aspects at an early stage, they can increase the likelihood of an amicable and swift resolution of the issues between them.

As in life, the key to a good marriage is compromise. The same can be applied to separation and divorce. Both parties must compromise with each other and to avoid the entire family becoming embroiled in a lengthy, costly and upsetting period; each party must try and continue to consider the feelings, needs and the rights of the other party.


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Mogers Solicitors

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