With the increase in movement of people around the EU and internationally over the past decade has come an increase in the number of international marriages and relationships and therefore inevitably an increase in the breakdown of those relationships.
The breakdown of a relationship or marriage with an international element brings unique and sometimes complex issues which must be addressed as early as possible. The concept of international law is very different to that of national law but does not necessarily mean that non UK law will apply.
England – still the “Divorce Capital of the World” ?
Despite being small England is most likely the centre of international family law because of its links with countries all around the world and being home to families from all around the world. It is also considered by many to have the most generous approach to financial settlements in the world.
What is International Family Law?
A family can be considered to be international for the purposes of family law if one of the parties or a child (this list is not exhaustive):
- lives or works abroad
- is domiciled abroad or is a foreign national
- has a passport from another country
- owns property or assets abroad
- has been involved in family proceedings abroad
- considers that foreign law (including religious law) should apply
- if there is a pre or post nuptial agreement entered into abroad
What issues can arise?
Jurisdiction i.e. which countries law will apply? Does the English court have power to deal with the matter? Is there another country that can also deal with it and if so which country would it be better to commence the proceedings in?
For divorce proceedings commenced in this country English law is applied no matter what the nationality of the divorcing couple is.
This is unlike most of Europe where family law courts operate a choice of law known as “applicable law”. This means that if the divorcing couple have a closer connection with another country the courts and lawyers will apply the law of that country.
The UK opted out of an EU proposal that would have set a list of criteria for deciding which country’s law should apply on divorce – the main criteria being the country in which the couple last had their home!
Would an English court recognise the marriage and therefore be able to deal with a divorce?
What would be the financial outcome in each of the countries that could deal with the divorce and would it be better or worse if proceedings are issued in England?
For example some countries still take the conduct of the parties into account; some have limited ability to make orders in respect of disclosure. You should also consider whether any order would be enforceable. A financial order made in another country may also give that court power to make orders concerning the children
Will a divorce in an English court be recognised in any country where you might expect to live or remarry in the future?
Is there an existing pre marriage contract such as a pre nuptial agreement? Pre nuptial agreements are still not binding on English courts as they are in many European countries where they bind the courts however unfair the terms are and whether or not either of the parties to the agreement received any legal advice before entering into it. However following the Supreme Court decision in Radmacher v Granatino which involved a German heiress pre nuptial, agreements must be considered by the court and are likely to be upheld where its terms are fair (both at the time the agreement was entered into and at the time of implementation of its terms), it was freely entered into and both parties took independent legal advice.
Most EU countries also exclude from the assets to be divided on divorce any assets acquired through inheritance.
Are there children?
In which country will the children be raised?
A number of cases have come before the English courts where there is a question of foreign residence. The English courts have been robust in their defence of their right to have jurisdiction in such cases and in 2012 when the 1996 Hague Abduction Convention came into force this improved the ability of parents to enforce residence orders if their children have been taken abroad.
Maintenance for any children of the family
From 18th June 2011 the EU Maintenance Regulation came into force across the EU including England & Wales which covers maintenance obligations. This legislation is huge and it is not possible to deal with it in any detail in this article.
If there is any possibility of there being an international element then you should always seek expert legal advice at the outset.
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