Thu 11 Apr 2019

Five key questions for British expats considering divorce

Reaching the difficult decision to divorce will inevitably lead to many uncertainties about how best to part ways. There may be issues around division of assets or child custody to consider, for example. But for those living away from their homeland, things can often be significantly more difficult. So if you are living abroad, here are five frequently asked questions when expats divorce.

1. I've left my career, my pension, my life to come here… will that be taken into account?

Quite often, the move abroad is triggered by one person's career.  For the other spouse, the move abroad, just on its own, can give rise to considerable relationship stresses.  It can be difficult, or maybe not possible due to visa issues, for this person to get employment in the new place, raising issues of identity as well as finance, potentially compounded by culture shock and homesickness.  If those stresses on the relationship result in a breakdown, the non-working spouse may well feel that their sacrifices should be taken into account in the division of assets.  Whether or not that will happen depends on the particular circumstances and the legal system (see Q2 below).  In English law, the focus is usually on the claimant spouse's "needs", which might include longer-term support if that person has been out of the workforce for some time.  In Scots law, the starting point is equal division of assets and less maintenance, but one party can seek a greater share of the assets if he or she has been "economically disadvantaged" in the course of the relationship - which could include giving up a career in the interests in the other spouse. 

2. Where can I divorce?

There are rules about which court can deal with a particular case.  For divorce, the link is usually either where you are living or where you are “domiciled” (i.e. where your home country is).

Often expats want to deal with personal matters such a divorce back "home" even if living abroad.  If both spouses are residents abroad, but are living in that country temporarily, rather than having relocated for the rest of their lives, they will probably still retain a domicile somewhere in the UK. If neither spouse is a resident anywhere in Europe, then it is possible to start divorce proceedings in either Scotland or England based on the English or Scottish “domicile” of only one spouse. When it comes to divorce proceedings, “domicile” does not refer to the collective UK in general, but will instead be either Scotland, England and Wales, or Northern Ireland – so this might mean that you have a choice between Scottish and English legal systems.

Don't discount looking at local options though - you may find the local law offers a possible solution which works for you.

 The UK rules about where to divorce are currently regulated by EU legislation - and so depending upon what happens with Brexit deals and delays, that could all change.  For example, if there is a "no deal" Brexit, it will actually be easier for expats in the Middle East to deal with issues of spousal maintenance in the UK - under current EU rules, this can be problematic.  These potential changes makes it all the more vital to get expert input from a specialist international family lawyer. 

3. I'm not sure about this - do I need to decide quickly?

That depends on your situation. Even if you decide in the end that you don’t wish to take any formal legal steps, it’s best to have legal advice sooner rather than later, so that you can make an informed decision. The issue of which court can deal with a legal matter can be extremely complicated.  In some situations, it is very important to start proceedings in the court of your choice first - which can be very difficult to balance if you're not really sure whether the relationship is truly at an end.  In some situations, unfortunately, there may be a "race to decree", where one spouse is seeking to get a divorce decree granted in a legal system which will give little financial provision to the other, so as to make it difficult or impossible to make financial claims elsewhere. 

4. Can I come home - or stay here?

It is very common at the end of a relationship for a spouse to want to come "home", usually to the country in which they grew up and where their parents are still living.  Whether or not that is going to be easy depends on if the expat couple have children.  A large number of countries have signed up to the Hague Convention on Child Abduction, which is an international piece of legislation that aims to prevent children being removed from the country in which they were living without both parents' consent.  If such a removal happens, the "left behind" parent should contact the Central Authority in their country as soon as possible, to put in place urgent court procedure seeking the child's return. 

Most countries in the Middle East are not party to the Hague Convention - but if a parent wants to come "home" with a child from a non-Hague country, then (depending upon circumstances) it may still be wise to do so with the other parent's full consent - otherwise, you may still find yourself dealing with court procedure seeking the child's return. 

If you instead want to stay abroad, you may need urgent immigration advice, particularly if your visa is tied to your spouse's employment. 

5. How much will it all cost?

While some situations can be sorted out quickly and cheaply, some divorces can cost very significant amounts  In situations where there is the possibility of court proceedings in more than one country, and also assets spread over two or more countries, things are inevitably more complex - and so can be more expensive.  However, getting expert advice at the start can save money in the long-run.  It may mean you can ensure finances are dealt with the court that suits you best, or feel confident that proper steps have been taken to get full financial disclosure.  Urgent protective measures might also be needed to prevent assets being hidden or moved to countries where enforcement would be difficult. None of this is to say you should be writing a divorce lawyer a blank cheque - but getting the right advice at the right time can be a sound investment.

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