Henry Brookman explains how different countries’ rules vary regarding divorce, prenuptial agreements, child custody and financial matters. Published in The Telegraph Online.
When people go to live in another country they are often preoccupied with matters relating to their employment and their living arrangements. However, what they often do not consider is the extent to which the local laws may now apply to their personal status – especially their marriage, and if it should happen, their divorce. In fact, when it comes to divorce, it is certainly not uncommon for people to make the assumption that they carry the law of their country of origin along with them or that their new country of residence will have similar rules to the country they were married in. This is often not the case.
Divorce differences across jurisdictions
Even within Europe, different countries’ approaches to divorce and family law vary considerably. For instance, Malta has no divorce at all, whereas the Scandinavian approach assumes that in most cases, each party can simply get on with their lives without further obligations. Different countries have different criteria as to how you can apply for divorce. Residence is of course the main basis, but certainly not the only influencing factor. In some cases, the United Kingdom accepts ‘domicile’ as a basis for filing for divorce. Other countries accept citizenship as a basis for filing. So there may be a choice.
There is a rule between EU countries that says that the first country of filing takes priority – which simply means the first person to file for divorce wins the ‘race’ for jurisdiction. As an expatriate deciding where to divorce, the preferred jurisdiction can have a significant influence on the divorce process and the divorce’s outcome. It can even affect the extent to which a prenuptial agreement may be taken into account.
Looking further afield, in the Gulf for example, expatriates will have no access to the local courts because these courts are wholly religious. In these circumstances a couple from the UK who have not relinquished their domicile will have to have recourse to the English courts to pursue divorce proceedings.
In many parts of continental Europe and North America, pre-nuptial agreements or ‘pre-nups’ are often legally enforceable if the parties divorce. Traditionally however, English courts have paid little attention to prenuptial agreements. Though the courts are now paying significantly more attention to pre-nups since a significant Supreme Court decision at the end of 2010. The Law Commission is also currently reviewing whether there should be legislation drafted to make prenuptials legally binding in England and Wales.
By and large western countries have two primary principles with regard to children during a divorce: that the welfare of the child is to be assessed on a case by case basis; and that the Courts of the child’s ‘habitual residence’ are best placed to decide. However, complications often arise. For instance, a wife of a separated couple might want to take their children back to the UK from the marital home in continental Europe. However, as the children reside outside of the UK, the local courts should determine custody, but the current waiting time for such cases is three years. In this situation, there may be an option to seek ‘temporary’ permission to leave the country until the final hearing.
With or without a prenuptial agreement, different countries have very different financial outcomes from divorce. The UK is known to be generous when it comes to spousal maintenance, whereas some countries work to a fixed percentage of a husband’s income. This range of approaches taken by different countries means that getting the jurisdiction right at the beginning is absolutely crucial. However, it is worth remembering that a court order is only effective in the county that made it. If the financial assets are elsewhere, the spouse may have a problem getting their share.
Take the correct first step
It is reported that approximately 15 per cent of UK marriages have a foreign element and that probably is true across the developed world. The impact that a jurisdiction can have on the divorce process, child custody and financial settlements means that a wise person takes prior advice before starting the divorce process in motion.