We look at cases where the expat dream ends in despair and frustration. If your marriage breaks down, the prospects can be daunting if you are ‘stuck’ in a foreign country.
For many expats, this new life provides all the happiness and enjoyment for which they had hoped. For an unfortunate few, this dream ends in despair and frustration. If your marriage breaks down, the prospects can be daunting if you are stuck in another country without a strong grasp of the language or knowledge of local culture.
However, while you may feel isolated, faced with complicated legal issues and dealing with foreign lawyers in an alien language, the truth is that help is always at hand. In almost every case, the first questions divorcees abroad ask concern the client’s children: what can be done to protect them? What can be done to ensure that access is not unfairly restricted?
The good news is that even in the most serious of cases, where spouses return home one day to find their partners have fled taking the children, there are legal remedies. Although divorce is an extremely traumatic experience for any parent to go through, the first steps are always the most important and the main priority is to keep a level head.
For example, if certain criteria are met, you may be able to argue that you have a right to file legal proceedings in another country. Different countries require different levels of residency to allow legal proceedings to start. This question is no small one, because family law can vary enormously between one country and another – and the financial implications can loom large.
The basic rule of thumb is that you are a resident of the country you regard as home. The court will look at the facts: how much time you spend there, the location of your place of work and where you spend the majority of your time.
It is worth noting that different countries have vastly differing approaches to investigating the facts presented in court – including financial statements. If a spouse is able to hide their true wealth, the fairness of any settlement is at stake.
Be aware that every country’s legal system has its own nuances. If an initial separation order is filed in Spain, for example, spouses are prohibited from advancing proceedings anywhere else. This is not the case in other European countries.
Careful preparation is a must. Here, then, are some essential pieces of advice that should be followed by any expat parent facing the challenge of family breakdown.
Seek good legal advice
Wherever you are, seek advice from a good local lawyer with experience of international family law. The pressure to speak to the first lawyer with a decent grasp of your native tongue is very hard to resist, but it is far more important to get good advice. The local embassy or consulate can help you find an appropriate lawyer.
Make sure that time is on your side
There are many cases in which proceedings have been issued in different countries, literally minutes apart. For the party filing last, there is no second chance. Delay filing your papers and you risk disabling your case from the start.
Get advice on cross-border movements
If you believe your partner is planning to flee with your children, you need to ensure that you receive the best possible advice about your rights as a parent with regard to cross-border child movements.
Poor advice might fail to recognize the significance of the first few hours in child custody cases, or the complications of cross-border separations. When applying to have the children brought back to their natural residence, a court could rule that the time delay was too great and no action could be taken.
Don’t try to flee
Whatever you do, don’t try and take matters into your own hands and flee with your children. Returning to your home country with your children against your partner’s wishes can have a detrimental effect, possibly resulting in the courts requiring the children to return to the country they were living in before.
Residence orders don’t restrict movement
Acquiring a residence order in the country that you live in doesn’t guarantee the other partner from taking a child abroad. International laws are complex and apply to different countries in different ways. Ensure that you seek advice early to avoid lengthy, complicated custody proceedings.
Secure your assets
Even though your children are your first priority, you mustn’t forget that it is in their interest for you to secure your own future. Securing assets is especially important if your liquid assets are held in joint accounts: it may be some time before you are in a position to sell property or company shares. In the meantime, you’ll need to pay your way. If possible, ensure that your spouse doesn’t have sole access to your assets.
Restricting overseas transactions
Do you suspect that your partner may try to hide assets? If so, your lawyer can apply for a worldwide Mareva injunction. This is an injunction that places legal restrictions on a party’s financial transactions worldwide. Some law firms can also ensure that wealthy partners do not hide their assets in offshore havens.
Although it is easier said than done, always try to keep a level head. Erratic behavior – from damaging property to trying to flee with the contents of a bank account – will only come back to haunt you under cross-examination in court.
Remember that laws can change
As a final point, do not rely on your understanding or assumptions of family law. As more cases are heard that involve international child custody issues, the law can change frequently and at dizzying speed.
Separation is never easy, particularly when children are involved. As more families find themselves separating across borders, this area of law is constantly evolving. Recent attempts to harmonize the law across the European Union drew fire from several quarters, while courts in different countries are tentatively trying to use law from a claimant’s home state in an attempt to deliver fairer settlements.
Depending on the course of action taken, outcomes can vary wildly, which only reinforces the importance of good advice and timely action. The best advice at the correct time can protect your rights as a parent and ensure your financial settlement is fair.
While there is a great deal at stake and the pressure may feel overwhelming at times, there is always a light at the end of the tunnel for those involved. Once proceedings are over, you can move on and rebuild your life and your future. Who knows what opportunities await?