Divorce: English divorce law abroad
For a UK couple living abroad, it may still be possible to use the English courts and an English lawyer to handle divorce proceedings.
Living the dream has never before been a reality for so many people. Leaving behind the often grey and wet skies of Britain to start a new life abroad, somewhere with sunnier weather, more work opportunities, a different lifestyle – or all three – is luring millions of Brits away from the UK each year.
Around three million British expatriots now live abroad. 65 percent of 18 to 25-year-olds are said to be thinking seriously about moving abroad, with Australia the most popular destination, followed by Canada and China according to a recent survey. ONS figures for the year to June 2010 show there were nearly 350,000 long term emigrations from the UK in the previous 12 months.
These aren't, of course, only those couples who choose to move to start a new life. In today's business world with companies sitting astride the globe, it is more common for them to want to move key employees to offices in other counties. Upping sticks with a partner and starting again in an alien environment can seem very glamorous - but it can also put people under a lot of pressure, particularly when it wasn't completely their choice.
The opportunities abroad seem to put the UK to shame, and yet the pitfalls can often be forgotten - until something goes wrong and the notion of Paradise Lost becomes more real.
The challenges for a couple moving abroad are many and varied. Moving to a new home in your own country can be difficult enough: new surroundings, new job, new people, new places, more distance from family and existing friends. The impact of these issues can often be magnified by making a move abroad. Then you can add an unfamiliar language, different finance system and taxes, new customs and frustrations with foreign countries that while on holiday simply seem quaint, but when you live there can be infuriating. The pressure it can put on couples is intense.
For some couples, a move abroad can be a last ditch attempt to save an ailing marriage. For others, it could be the realisation of a long term dream nurtured more by one party than the other. It could be friends and family forcing something that is just not for you.
And for a couple living abroad, if things get to breaking point, contemplating how a divorce or relationship break-up works in terms of legalities and finances can simply seem like another impossible hurdle to overcome. The tax breaks abroad may have seemed appealing before, but who benefits in a split? How does the foreign family law system work? How do you find a reliable local lawyer who speaks English?
However, it need not be so daunting with the right legal advice and representation.
It could be that you can still use the English courts and an English lawyer. It could be that it would be of benefit for you to use local law. The important thing to remember is not to panic and, in the first instance, to seek advice from a family law specialist in England with experience of expat divorce issues.
The good news is that in many cases you will be able to choose to use the English courts to obtain a divorce. You will need specialist advice to confirm that this is possible however, if:
- you are originally from England or Wales and currently living in another part of the world;
- you have lived outside the UK for a number of years and have only recently returned.
Whether or not you are able to divorce under English law depends mainly on where you are ‘domiciled' and where you are habitually resident. Domicile is a legal point which takes into account where you were born, as well as where you are living now and your intentions for the future. ‘Residence' and ‘domicile' are not the same thing. You may have been a resident of Spain, for instance, for many years and still be domiciled in the UK for legal purposes. Domicile means, basically, that you have a ‘legal connection' with England and that the English courts therefore have jurisdiction to grant you a divorce. If you have relinquished your domicile by, for example, taking out foreign citizenship or naturalisation you may not be able to use the English courts.
In most circumstances, however, anyone originally from England or Wales can use the English system, on the basis that they are ‘domiciled' in the UK.
Brits can be quick to criticise the English courts, but in reality using the English legal system to divorce is often much quicker, cheaper and more effective than attempting to use the local jurisdiction. Even if you speak the local language you probably wouldn't be able to understand the legal jargon used or find it easy to grips with a procedure which, in many cases, is quite different to that "back home".
If you do divorce in an English court, the advantages are that:
- Neither party has to appear in court if both parties agree to the divorce.
- Getting a divorce takes around 16 weeks or so through the English courts, regardless of whether you live in Southampton or Sydney.
- All the paperwork is in English and the advice you will be given will be from an English speaking lawyer.
- In short, an English divorce these days is quick and inexpensive.
Of course, it's worth a reminder that a divorce is merely the ending of the legal ties created by marriage. If you have children, the court will want to see that proper arrangements have been made for their care. Likewise it is important that the marital finances are divided at divorce, or at least that you take advice on why this might be important. If you are able to agree on a financial split, your lawyer will be able to draft an agreement (known as a consent order) which is filed with the divorce papers. It is more complicated if agreement cannot be reached and this is where you might be required to come back to the UK for court hearings.
There are some limitations on what can be agreed and arranged through the English court system. Foreign owned property, for example, may not be under the jurisdiction of the English courts, so the judge cannot always make orders in respect of overseas assets, unless the other party is in agreement. In France, for instance, the English court cannot order that a house in France be transferred to one particular party. This would have to be dealt with by a local lawyer.
There are steps couples moving abroad can take to make the whole process easier if they split up. In this day and age, many people are familiar with the concept of pre-nuptial agreements (or living together agreements) even if they do not have one themselves. It sets out how a couple will split their assets on divorce and deal with the break-up. A post-nuptial agreement is much the same but is drawn up by the couple, with suitable legal advice, at some point after the wedding. It might be that in deciding to make the move abroad they decide that it makes sense to look at such an agreement. It could even specify where the divorce should take place. There may also be a case to be made for companies footing the bill for this if they are the instigators of the move to a foreign country. It is possible that problems will be more likely if it is not a decision the couple have taken themselves, with both being in complete agreement.
There are very few firms in the UK able to deal with divorce for expats, or at least who have experience in doing so. Specialist knowledge is required, including: where expats live in an EU member state country, an understanding of the EU Council Regulations on divorce, cross-border divorce procedure, recognition of court orders between member states, and other things that you do not need to worry about once you have found a specialist in this type of work.
Some of the firms that do this highly specialised work will give you a fixed-fee quote for the case, so you know exactly what it is going to cost, and won't get any nasty surprises at the end of the case.
So if a life in a new country does end up leaving a relationship or marriage in tatters, do not despair. You may well be able to use the English courts to sort out your divorce with minimum fuss - just try and settle the division of assets between yourselves.
Andrew Woolley / Expatica
This article was written by Andrew Woolley, a family lawyer with Woolley & Co, a specialist family law firm based in England with significant experience in dealing with expat divorce and divorce across borders. For more information, or to enquire about a free consultation, visit www.family-lawfirm.co.uk or call on +44 (0) 1789 330310. You can also view a helpful video on expat divorce here.
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