Saturday 4th March 2017

Divorcing abroad − why British expats need to check their options

Moving overseas with your family to live and work in a new country is a big step. While everyone starts out with high hopes for a better future, expat life can put relationships under stress. If things go wrong in your marriage, the thought of dealing with property, finances and children in the local divorce courts may feel overwhelming.

Many UK expats can still use the Scottish or English courts to deal with issues of separation and divorce, even while living abroad. This may be a better option than dealing with matters locally depending on questions such as the location of your assets; which country's laws favour the outcome you want to achieve; tax implications; and the costs and logistics of conducting a case locally or in the UK.

Why location matters

The legal frameworks for how financial and child-related matters are dealt with vary widely across countries. The outcome of divorcing in Dubai, say, may be very different from what you might expect to achieve in England. Even if you don't want, or need, to go to court, understanding your options is an important part of negotiating with your spouse. Separation agreements (or their equivalent) are usually framed with reference to a particular country's divorce laws. This is partly to assist in enforcement if required, but also because you need to evaluate settlement proposals against the possible legal outcomes − in other words, you may not want to offer (or accept) a deal which is significantly more (or less) than you would expect to get if you went to court.

If you and/or your spouse have connections to more than one country, the courts of those countries may be able to deal with your case. If both countries are within the EU, which court "wins" is usually decided on a "first come, first served" basis. For example, if divorce proceedings are raised in Germany, a court in France cannot deal with the same case, even if the couple arguably has closer links to France. If the countries are not both within the EU, different rules apply.

For this reason, any expat involved in a separation, or who is considering splitting up, should assess the position − with the help of an experienced international divorce lawyer − as early as possible. So- called "forum shopping" (selecting the country whose laws will result in the best outcome) is not just for the super-rich - it should be considered by anyone with significant connections to more than one country.

Can I get divorced in the UK?

The first thing to establish with your international lawyer is whether a UK court has "jurisdiction" (that is, the authority to deal with your case). All legal systems have rules about jurisdiction, because there have to be practical limits on the cases a particular court can deal with. While many of these rules are based on being physically resident in a place for a given period, this is not always the deciding factor.

Whether you can divorce in Scotland or England (which are distinct jurisdictions with different rules and procedures) depends firstly on whether or not one of you has a connection to another EU state, such as nationality and/or residence. If you do, it is possible to divorce in Scotland or England if both of you have retained a Scottish or English domicile: in other words, you were born in Scotland/England, consider yourselves Scottish or English, and plan to return to live there in the future.

If the other country to which you have a connection isn't in the EU - for example, you are an expat couple living in Asia or the Middle East, but you have links to Scotland or England - then if one of you has a Scottish or English domicile, you can raise divorce proceedings in the English courts or the Court of Session (Scotland's highest civil court) even if you are not currently resident in the UK. In this situation, however, the court may not be able to deal with issues relating to maintenance, which would need to be the subject of separate proceedings elsewhere.

Should I divorce locally instead?

It's impossible to generalise, and you may find the local law offers better options in your situation. The key is to make an informed decision with the benefit of specialist legal advice. The rules of international divorce are complicated but your choices can make a significant difference to the outcome, both financially and personally. It's essential to talk through your options with an experienced international divorce lawyer before you make decisions which could have an impact on your life for years to come.

Dianne Millen is a senior family law solicitor with Morton Fraser LLP, a firm with expertise in advising on international divorce and litigating in both England/Wales and Scotland.

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