August 17, 2012

When a holiday destination becomes home – how do you divorce?

by Fiona Kendall, partner at Jones Myers LLP

Fiona is a collaborative family lawyer, with extensive knowledge of EU law and cross border cases involving Scottish and English law.

When a relationship falters, going on holiday together might be seen as a last ditch attempt to heal the rift. That may go some way to explain a noticeable upsurge in divorce proceedings during September – but the reality often tells a different story. More usually the couple go ahead with a pre-booked holiday despite the cracks in their relationship and take the first steps towards divorce on their return.

While it may not have been so for previous generations, global travel has become the norm for many people – with an increasing number choosing to live, work and marry in another country with relative ease. However, for couples who have a home abroad, divorce may be an altogether more complicated matter. Here are some frequently asked questions about this issue.

How dramatically does divorce legislation vary from country to country?

There can be huge differences for legal, political and cultural reasons. In Ireland, for example a couple have to have been separated for at least four years before they can file for divorce. In Malta divorce is now recognised but this has only come about recently due to a change in the law. In Scandinavia a quick, ’no fault’ divorce process is the norm.

If one spouse is identified as having habitual residence in a specific country, then he or she may issue divorce proceedings there. More often than not, the law of that country will then apply.

What are some of the differences between English and Scottish divorce law?

Although both within the UK, Scotland and England and Wales are different legal jurisdictions and approach financial matters on divorce very differently. In Scotland, for example, no wealth acquired by either party as a result of inheritance is taken into consideration when assessing what is to be divided. Any assets acquired before the marriage or after the separation are similarly excluded. This is in stark contrast to the position in England and Wales where everything is in the ‘pot’ and each party negotiates for their share. There tends to be a greater emphasis on a ‘clean break’ in Scotland which contrasts with England’s generous maintenance regime. In Scotland maintenance payments are generally only payable for a maximum of three years.

How does divorce law differ across Europe?  

There can be stark differences in approach, which can lead to “forum shopping” by spouses looking for the jurisdiction which will offer them the most financially advantageous divorce settlement.  Sometimes competing proceedings are raised in more than one member state.  EU rules dictate that, in general, the proceedings raised first will prevail. The law of the jurisdiction within which the proceedings are raised will usually then apply.

The European Union has tried to harmonise some of the rules – what has been achieved – and are there any further developments in the pipeline?

Fourteen of the 27 member states have agreed that couples should be able to choose which law should apply to their divorce, wherever the proceedings are raised in Europe.  This might mean that a French couple living in Slovenia will opt to apply French law in their Slovenian divorce proceedings because that is the law with which they have the closest connection. At the moment only Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain are participating in this regime. The rest of Europe may be waiting to see how this plays out in practice before deciding whether to follow.  Whilst affording couples this kind of choice may be appealing, there are significant practical concerns. Can legal experts in one jurisdiction reasonably apply the law of another?  If foreign experts are to be flown in, what about the additional costs of translation and travel? All of this could create rather than reduce stress for the divorcing couple.

Does mediation and the collaborative family law process exist outside the UK?

Very much so, and is expanding as more and more countries are embracing the collaborative family law and mediation models, from the Czech Republic to the Netherlands. These forms of civilised dispute resolution avoid a lengthy, stressful and expensive court process. They may also afford couples much wider choice about how matters should be settled, notwithstanding that the UK has not bought in to the new EU regime.

For more information on cross border issues contact the team at Jones Myers on 0113 245 0055, comment below or drop us an e-mail.  You can also send us a tweet @helpwithdivorce.