POSTCARD FROM AFAR

Nexus Expat News, April 2005

Royal and International Complications

Many people think that if they were married in England then they can get divorced in England - Charles and Camilla both did that but there is now controversy as to whether English law allows the heir to the throne to remarry by a civil as opposed to a church wedding. Camilla and Charles needed to check out all the legal obstacles before proceeding.

Other British citizens may find they also have problems, for example, if they want to get divorced and remarry but cannot find an appropriate jurisdiction to deal with their divorce first. You cannot remarry in England unless your divorce is recognized as valid under English law.

If you are living outside England and Wales you may still believe that as a British citizen you can still get divorced in England. (You should note that Scotland and Northern Ireland have distinct legal systems from England). Unfortunately it is not that simple.

New European regulations now govern which European Union country has the jurisdiction to deal with a divorce between two EU nationals (apart from Denmark which has not opted to join the family law system). For EU nationals it is no longer the case of which EU country is the most convenient to hear the case, but in which EU country divorce proceedings are issued and served first. This can lead to bizarre consequences, and to a divorcing couple finding themselves in an unfamiliar legal world. In view of the expansion of the EU more and more people will find themselves affected by the recent changes in the EU law.

For countries outside the EU, the English courts are still likely to look at which is the most convenient court to deal with the divorce (for example looking at where the assets are located and where any children are living).

If an English national has given up his English domicile for tax reasons, he or she could also find it difficult to divorce in England leaving him or her with the country where he or she is residing where the laws may vary completely from the norms of his native country or with the country of which their spouse is a national.

If you are thinking of separating or divorcing from your spouse it is wise to do some preliminary investigations with legal experts before discussing this with you partner. You need to check out your legal position in the country where you are living, and the countries of which you and your spouse are nationals.

Each country has different laws on the grounds for divorce, the jurisdiction for divorce and the financial relief available to the parties on divorce. For example, in England pre-marital agreements are not binding on the divorcing couple but in Germany and some American courts such an agreement would be binding. Some of these marriage contracts may specify which jurisdiction will deal with any future breakdown of the marriage; such agreements may or may not be binding on the divorcing couple. The English law on the validity of pre-marital contracts is currently undergoing a review. In England and Wales and the Republic of Ireland courts can award ongoing maintenance for wives for life on divorce but Sweden and Scotland offer only restricted alimony. Some countries adhere to the community of property law (e.g. France) and some allow inherited property or post separation assets to be excluded from division upon the dissolution of the marriage. In addition you have to consider the enforcement of any orders made by a court in one country against assets or individuals located elsewhere.

A preliminary dispute between the courts of 2 or more competing countries about where a divorce should be heard can be very expensive so it is sensible to investigate all the possible countries before issuing any court proceedings.

Problems also arise on the breakdown of so called common law or ‘de facto’ relationships. For example Australia has legislation to make orders on the breakdown of these relationships, England does not.

As more and more individuals travel abroad to live and work, family law takes on an increasingly global nature. The World Congress on Family Law this year takes place in Capetown, South Africa from 20-23 March 2005, and it is clear from the need for this type of international meeting of lawyers and family law professionals that the problems of international businessmen and women in the field of family law is of ever increasing complexity.

Charles and Camilla are not the only couple who face legal obstacles in their quest to regularize their marital status; the problem is shared by lots of couples all over the world.

Lorna Samuels

 

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