iGuide: Variation of Financial Orders
iGuide: Enforcing Foreign Financial Orders in England
iGuide: Enforcing English Financial Orders Abroad
iGuide: Enforcement of Financial Orders in England
iGuide: Financial Orders - Considerations for the Court
iGuide: Where should I divorce?
Some countries operate a system informally known as community of property. In its basic form, the assets accruing during the marriage up until the date of separation are divided equally. Premarital and post separation assets and all inheritances and gifts are taken out of account. This inflexibility can sometimes produce, to English perceptions, quite unfair outcomes. It gives no account to commitments made within a marriage often to one spouse’s prejudice e.g. giving up a career for child raising or moving countries to be with the other spouse. It gives no account of the needs of the parent, often not the primary earner, who has responsibility for day-to-day care of the children as an ongoing prejudice to their own career and earning.
Some countries have an additional discretionary lump sum on top to produce a more just outcome. Often however this adjustment is quite a small amount.
Spousal Maintenance may be in addition to this division. However an increasing number of countries do not grant spousal maintenance for more than a few years after the divorce. This can be irrespective of the length of the marriage, the disparity in the financial circumstances of the spouses, and the inability of one spouse post separation to recover earning capacity and after the commitments to the marriage. This can seem very unfair.
Some countries apply not their own domestic law but the law of the country with which the couple have the closest connection, known as 'choice of law' or 'applicable law'. England only ever applies English law. Most English lawyers consider applying the law of other countries makes settlements harder to achieve and more costly, even more uncertain and slower. Moreover continental European countries using applicable law do not do so consistently or comprehensively; applying their own domestic law to procedural matters and anecdotally applying their own domestic law if they find it difficult to ascertain or understand the foreign law.
Some countries have binding pre-marriage agreements as a cultural and legal norm. Sometimes these are entered into without separate independent legal advice, without disclosure and without any opportunity of reviewing what is fair. Nevertheless these countries very rarely deviate from these sorts of agreements at a time of subsequent divorce, irrespective of the changes that may have subsequently occurred and however unfair the agreement may now appear with changing circumstances.
Ascertaining the assets to be divided in some countries, even if to be divided equally, can be hard work, very frustrating and often simply impossible. Some countries rely on self disclosure without any opportunity of corroboration or investigation. Some countries have minimal investigation powers. Some countries ignore assets put within trusts or companies, even if done so to evade marital responsibilities. Some countries ignore offshore assets i.e. resources outside the country. In short, ascertaining disclosure reliably in some countries is impossible, leading to much frustration and injustice.
Many international spouses have to balance the predictability, certainty, low legal costs and possibly inadequate disclosure of some countries, with the more flexible fairness-discretion, more tailor-made, yet uncertain outcomes, the greater likelihood of full disclosure, higher legal costs and possibly greater financial settlements in countries such as England.
In countries with any significant Islamic influence, the division of marital assets is often based on mahr, dowry or similar arrangements reached at the time of the marriage and with reference to the Qur’an. Whilst to some observers the arrangements can seem very unfair especially to the woman, Muslims including some female Muslims argue its fairness. Nevertheless it is a feature that has to be taken into account in comparing financial outcomes between countries with which international families have a connection and choosing where a divorce will take place.
Generally England is perceived as a very generous country with applicant wives obtaining substantial orders. London is described as 'the divorce capital of the world', in part because of its very multinational population but in part due to the very substantial settlements redistributing assets and making orders against assets held behind trusts, companies and otherwise hidden. With many international families having some connections with England, it has been a forum for many big money divorces in recent years. There are much lower divorce settlements abroad.
First, the English family court has power to make an order in respect of assets abroad including real properties abroad.
Enforcement depends on the order and where it is going to be enforced. Many international enforcement arrangements distinguish between maintenance and other financial obligations. Maintenance is interpreted widely, beyond pure alimony, spousal maintenance provision. It is interpreted often as 'needs'. However it does not cover division of assets based on fairness sharing rather than providing for needs. Enforcing such fairness-sharing division of property arrangements against foreign assets can be more difficult.
There is some international co-operation with many reciprocal arrangements on recovery of maintenance obligations. Some reciprocal arrangements are rather historic, outmoded and only occasionally exercised.
In contrast there are reciprocal arrangements across Europe (the EU Maintenance Regulation) although only for a maintenance (needs) order made before 1 January 2022. For maintenance (needs) orders made after that date there is the 2007 Hague Convention on the international recovery of child support and other forms of family maintenance which applies to all EU member states and some other countries including the USA.
Between some countries, it is possible to pursue claims quickly in the country in which the payer is working. Between some other countries, there can be a relatively complicated procedure involving the government organisations of the two countries. Good legal advice needs to be taken, including in advance of the final settlement if possible. It is important to be conscious of the costs of the exercise in relation to the likely recovery. There is a very good Government Department, known as REMO, which gives assistance on reciprocal enforcement abroad.
Many countries cooperate on orders regarding the transfer of real property. In practice, this is made much easier if, in advance of the final financial order, any dealings with the real property have been prevented or frozen.
Within Europe, cross-border laws have made it relatively easier directly to enforce consent lump sum orders in the country in which relevant assets are situated.
Although the English Child Support Agency (now Child Maintenance Service) rarely deals with international families, there is co-operation between such agencies in other countries.
Whilst there is increasing international co-operation on enforcement, there is still no substitute for freezing assets in advance and/or seeking orders against onshore assets. Planning implementation and any enforcement before the final settlement is very wise.
A divorce granted in accordance with the law of another member state of the European Union will almost always be automatically recognised. A certificate of divorce in the EU, properly translated and certified, is good across the whole of the EU.
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