In our article inspired by the impending Royal wedding, we discussed a few of the private client matters that arise for international clients. In this article we explore some of the family law and immigration planning considerations that arise.
It may seem pessimistic to consider divorce in an article inspired by a couple who are about to get married, but early planning can help to keep things amicable should the worst happen.
An international couple may be able to divorce in a number of jurisdictions, some more advantageous than others, so advice should be sought early - both when considering a nuptial agreement and, if it comes to it, upon divorce.
For the English courts to be able to hear the case, one party must show a link to the jurisdiction through either “habitual residence” or “domicile”. In determining a person’s habitual residence, relevant factors include time spent in a county in a typical year, where children are educated and where tax is paid. Whereas domicile is broadly the individual’s “permanent home” and is not necessarily the same as their nationality nor their residence. In some circumstances, even if a divorce has been obtained overseas it is possible for financial matters to be dealt with here.
“Pre-nups” or the less common “post-nup” – are common in many other countries, so an international couple is more likely to have an agreement in place or at least to be more comfortable with the concept.
Nuptial agreements are not binding under English law as only the court can decide the division of finances on divorce. The court does this by taking into account all the circumstances of the case (the welfare of any minor children is the first consideration) and a nuptial agreement is just one of these factors. However, it will be heavily influential where the following steps are taken:
- Each party engages their own lawyer
- Both parties’ financial situations are disclosed
- Lawyers negotiate the terms of the agreement
- The terms allow for any children to be properly financially supported
- The agreement is not outrageously unfair to one party
- (For a pre-nuptial agreement) it is finalised at least 28 days before the wedding
For international marriages, it is important that the parties take early advice about the effect of the agreement in all other relevant jurisdictions. For example, the High Court has found an agreement unenforceable because the wife, who lived in London, did not obtain English legal advice so did not understand what claims she was giving up in this jurisdiction. Foreign lawyers should be involved to advise on the best approach to maximise the chances of the agreement being enforceable in all relevant jurisdictions.
The parties may wish to include a “jurisdiction clause” in any nuptial agreement stating that disputes will be determined in a particular county. The courts in this country tend to place great weight on these clauses as they reflect the parties’ preference, but this does not prevent other courts from hearing the case. For example, within the EU, which country’s courts have jurisdiction is determined simply by where divorce proceedings are first issued.
Marital Property Regimes
In many countries, especially within the EU, marital property regimes are common. These are systems of laws which dictate the rights and obligations of spouses on divorce, and how spouses own property during their marriage. These rules can also affect how assets can be left on death, including whether/how assets can be dealt with under a Will.
Each country’s rules are specific but a couple can usually elect for one of two schemes:
- Separation of Assets: the couple want to be treated separately.
- Community of Property: the couple hold all assets and income (with some exceptions eg, gifts or inheritance) as common property.
In England and Wales these regimes do not apply at all – instead, the courts have very wide powers to make a broad range of financial orders on a divorce. As a result, international couples need to be aware that foreign matrimonial property regimes may not protect them in the event of divorce here. Similarly, married couples moving from a country with a marital property regime to England should consider entering into a post-nuptial agreement if they wish the regime to apply upon divorce here.
Space precludes a more detailed consideration of the issues but as this article demonstrates, international marriages – even without a royal element – give rise to some technical legal issues. You can read more about the immigration aspects relevant to such couples here.