If as a couple or a family you have international links, it can bring with it additional considerations if you separate or divorce.
It may be there is an issue about in which country the divorce should take place, or that you need to implement or enforce any order or agreement in a different country after it has been made.
There are numerous ways in which international issues can arise on divorce. The most common ones are when spouses have different nationalities to each other, or dual nationality, where they have lived in different countries during the marriage and/or where they have assets in more than one country. If any of these apply, it is usually advisable to obtain legal advice in any/all countries involved. Usually, lawyers in both countries will work together to ensure the overall best outcome and to ensure any settlement can be implemented as smoothly as possible, or to resolve any problems that arise.
The first question is usually to consider where the divorce proceedings should take place. This will involve considering what links you each have to the countries involved, where the assets are and how the courts in that country would deal with the assets. It is also important to consider how long the process might take and what costs would be involved as part of that decision.
If you have divorced abroad there are various ways in which you may still need assistance from a solicitor here in England.
What is a foreign divorce?
This is where you have been involved in legal proceedings to bring the marriage to an end, in another country. Sometimes there will have been a financial settlement as well, but not always, or it might be that any settlement has only dealt with some of the assets. An English lawyer can help you understand whether your foreign divorce is recognised here or whether there is anything else you need to do, as well as advising whether there are any remaining financial claims that can be made arising from the marriage.
Financial Claims after a foreign divorce
It is important to understand that you are not automatically entitled to make financial claims here after a foreign divorce. Whether you are able to do so will depend on your links with this country and to what extent financial claims have already been dealt with during the original divorce. Depending on your circumstances, it may be possible to make full financial claims, or just claims in relation to specific assets. If you already have a comprehensive financial settlement you may not be allowed to make further claims, but there may be issues about enforcing aspects of that settlement in relation to assets based in this country. An English divorce lawyer can help you understand if you have any remaining claims, and if so the extent, or help you enforce the order you already have from your foreign divorce and settlement.
What factors does the court take into account after a foreign divorce?
When looking at whether you are allowed to make financial claims in England and Wales after a foreign divorce, the court will consider various factors. The main ones include:
- What links you and your spouse have to this country;
- What assets are here;
- What financial claims you were entitled to make in the country the divorce took place;
- What orders the court made as part of the foreign divorce, and whether it took into account all of the assets or only some of them;
- The fairness of the law and the outcome in the foreign divorce;
- How long it is since the divorce and/or financial settlement took place.
A financial claim after a foreign divorce is known as a “Part III” claim (arising from the legislation it comes from). The court will not usually allow you to make additional claims here just because you are unhappy with the foreign settlement, or because you might have got more if the divorce had taken place here.
Enforcement of the court’s financial order
There are many different types of enforcement. Which is best will depend on what the asset/assets are and where they are located, as well as where the order was made and what type of order it is. Sometimes you will need an order which is focussed on your Husband or Wife to secure their compliance, for example committal to prison or an order seizing their passport or freezing their assets. In other circumstances, you will need an order which simply implements the order made, for example where the court executes documents to effect the transfer of a property. If you have had a foreign divorce and need to implement your settlement in respect to assets in England and Wales, a solicitor here can help you choose the right method of enforcement. If the assets are based abroad, it may be that it is better to progress enforcement in the country they are situation, but it will depend on all the circumstances of the case.
What orders can the court make?
In terms of a substantive settlement, what orders the court can make after a foreign divorce will depend on the factors listed above. In some cases, the court will be able to consider a broad spectrum of orders, in other cases, it may be limited in what orders can be made, for example only an order against what was the family home, or only an order splitting a pension.
If you are looking to enforce a foreign divorce settlement, there are various orders that can be made. Which one is right for you will depend what the asset is and what you are looking to achieve. Options include:
- Enforcing the sale of a property, this can include the court completing sale documents if your spouse refuses to do so;
- A pension sharing order, to implement an agreed division of a pension fund that is based here;
- Threatening your spouse with prison, or even sending them to prison if they refuse to co-operate;
- Orders confiscating travel documents, to stop your spouse leaving the country until the court has considered the issue;
- Orders to transfer other assets into your name, or to make deductions from your spouse’s salary.
Whether you can enforce a foreign order and if so what method is best can be complicated and will often depend on which country or countries the case involves, and what reciprocal agreements and rules are in place as between England and that country. Our international divorce solicitors can discuss the options with you, and work out what is best.
