Separation or divorce is never easy, but there comes a time when there is no other option. A divorce where the parties come from two separate countries or have relocated to a different country for work purposes can, in some cases, bring up a host of complicated issues that must be resolved. Once the difficult decision has been taken to divorce there are many other difficult decisions to be made. Where to divorce is the first issue and there are many other factors to consider; dependent on such things as where you live, whether you are the main carer for any children of the marriage, if you are the primary breadwinner or have significant assets and where you want to live after the divorce, amongst others. Many people think that their situation is complex when there is a cross-border element and it can feel overwhelming when faced with such questions as to how will access to the children be dealt with? Will I get a fair settlement if I can't fully understand the language of the country in which the divorce takes place? As well as, what will happen to the joint cross-border assets?
The whole issue is now compounded by the question of Brexit, the uncertainty of how the law will support them is putting international couples under pressure. The British government has stated that "a close cooperative relationship between the legal systems of the UK and the EU" is required and hopes that "an agreement with the EU that allows for close and comprehensive cross-border civil judicial cooperation on a reciprocal basis, which reflects closely the substantive principles of cooperation under the current EU framework". There is an urgent need for clarity on how divorce, maintenance and children disputes will work post-Brexit for international families with interests in the EU and the UK. The potential for cross-border divorces and questions over the relocation of children take years to resolve with families and children living in a state of uncertainty is a very real prospect which nobody relishes.
The lawyers at Giambrone are experts in cross-border divorce and firmly believe that the sometimes tough decisions that the couple are faced with, can and should be taken using a mediation process before stepping over the court threshold to minimise both the legal costs and procedures.
Your choices regarding jurisdiction are, in certain cases, governed by where you lived as a couple and the length of time you have lived in the particular country you would like to be divorced in. Some jurisdictions are more generous to the non-earning partner; however, the circumstances and reasons that the non-earner is not in work will significantly influence the allocation of assets. Financial arrangements in England tend to be discretionary rather than a fixed formula as seen in other jurisdictions.
One of the most challenging areas of cross-border divorce is where the children are to live and who will have custody. If one party wishes to return home and take the children of the marriage with them and the other party wishes to remain, this can prove to be the most difficult aspect to resolve and both parties have to be aware that the courts will only consider what they believe to be the best outcome for the children when making final decisions.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.