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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