FOR most couples, moving abroad – for a new job, perhaps, or to buy a main or second home – offers a great opportunity to strengthen or revitalise their relationship. For some people, though, it works the other way.
Tensions and stress caused by the move and change of culture can pull couples apart . As if the emotion of a break-up were not difficult enough, they also both face another challenge: how best to handle the complex international legal process which a
ccompanies the separation.
A couple may well own property in a foreign country, run a business there and send their children to international schools. This can make the process of splitting up and eventually divorcing painfully complicated.
"However assimilated a couple may be in the life of the country where they are living, they may well get in touch with lawyers back here in Scotland in the hope that they can sort things out," says Rhona Adams, partner in family law with Morton Fraser.
It is extremely hard to generalise about the likely outcome of individual cases, but it may not be appropriate, or even possible, for a Scottish court to hear a divorce action when there are international implications. It is probable that each side will seek to have the case heard in the jurisdiction which best suits their own individual circumstances.
This is often determined by which party lodges court papers first, but it can be subject to challenge.
If a couple are living in a Middle Eastern country, for example, it may well suit the male partner to try to have the case heard there, as Islamic countries are generally less sympathetic to the position of women. She, unsurprisingly, may seek to have it heard in another jurisdiction – England, perhaps, which has a reputation for generosity to ex-wives.
But each case is different and the parties' lawyers will have to work out which jurisdiction is the most appropriate.
When it comes to the division of assets, more complexity arises: the divorcing couple may, for instance, have their first home in Scotland, with a second property overseas.
Then, to add another layer of uncertainty, there's the issue of enforcement: a court order made by a Scottish court may carry the full weight of the law here, but in a foreign country where it cannot be actioned, it is effectively a worthless piece of paper.
On top of all this, there are also tax and inheritance considerations. Even within the EU, rules and systems vary widely, and the transfer of assets from one spouse to another during the separation process has to be very carefully considered.
As Adams puts it: "A lot of forum shopping is going to go on to find out how the law is going to treat people in different places. Being the one who raises the court action first is important, but it's not the only consideration."
Often the most important asset is the matrimonial home, or homes. In many European countries – such as Spain, for example – house prices are currently falling as dramatically as they are in the UK, and it consequently makes sense to get the deal done and the property on
the market as soon as possible.
"It's much easier if you can negotiate by dealing in good faith and coming to a settlement," says Adams.
"You also have to remember that, here in the UK, we have different
legal systems. There are, for instance, different philosophical approaches between Scotland and England when it comes to dealing with assets.
"In Scotland, for example, property which was owned before you married,
or assets of any kind, including money, are not considered to be part of the pot for sharing if they are kept completely separate from the partner's assets. The same applies to an inheritance. It's not so clear in English law, where the courts have more discretion." In the area of
maintenance, too, Scotland is regarded as being less generous than England.
Lesley Gordon, partner and head of the family team at Lindsays, also points out that separations and divorces across national boundaries can be complex and advice should be sought early.
"With people travelling abroad more and more, we are seeing a lot more marriages involving nationals of different countries," she says. "We do get people taking advice now when they first enter into these relationships – a sort of pre-nuptial agreement.
"Generally speaking, if things do break down, then it's best to appoint
agents in each country and they can then talk to each other directly, as every jurisdiction tends to have a different approach. In the past year we've spoken to agents in places as far away as Nigeria, Kenya and Texas as well as in Europe."
Even EU countries have markedly different legal approaches to divorce, she says.
"Generally speaking, the legal system of the country where the parties
have habitual residence will hear the case, but things are not necessarily straightforward and there are complex rules about which country has precedence. It may be the case, for example, that someone might be living in Spain but seek to raise an action back here in
Scotland, only to find that they have to re-establish residence here before they can do that."
Like Adams, Gordon also points out that winning a court action is one thing but enforcing that action in another country is quite another.
"If your property is in Spain, for example, then you might be better litigating in Spain and getting a court order there, as it's where
your home is located," she says. Declining property values and financial
woes as a result of the credit crunch can also have a detrimental effect on working through a separation, whether both parties are abroad or in the UK.
Shona Templeton, a partner specialising in family law at HBJ Gateley Waring, says people may have taken out loans and then find they have no resources to pay them off.
"Some people in a separation are now having to sell properties
for less than they anticipated, and that makes things difficult as obviously they are trying to achieve as much of a settlement as they can," she says.
Other issues caused by the economic downturn include the psychological
impact of houses sitting on the market for longer than everyone has been
used to, so stopping the parties involved moving on, and the current difficulty in raising mortgages which can hinder a buyout. This mortgage
issue may particularly be the case if a woman has been in part-time employment or out of the workforce for a period of time.
"There's also the potential problem of personal and corporate insolvency," Templeton adds. "If someone is made bankrupt, then that may remove their resources from the equation and complicate the division of a house.
"Redundancy or potential redundancy can make a settlement more
difficult. It means that the person who is at risk of losing their job might not be able to get a mortgage to buy the other person out or get a new property, or to provide maintenance."
The effect of the credit crunch ultimately means separating couples – and, where relevant, their children – may end up trapped in the same house while the assets are sorted and disposed of.
"It means that lives are put on hold and people stay put because they don't have any other option," says Templeton.
"Some people may even decide to try and sit it out until the housing market has picked up, although they don't know how long that will be."
The full article contains 1273 words and appears in The Scotsman newspaper.
