Divorce on International Scale
- Introduction: Divorce on International Scale
- In What Circumstances Can Divorce Create Conflict Internationally?
- Divorce Conflicts From the International Perspective
- Which Country’s Legislation will Govern divorce?
- Basis for deciding the legislation applicable to international divorce
- Depending on the domicile of the parties
- Conflicts in the international divorce settlement
- Where Should the Divorce be Filed?
- How Custody is Determined in Each Nation?
- Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
- International Custody Issues
- Recognition and Enforcement of Foreign Judgments in divorce cases
Introduction: Divorce on International Scale
Peter and Emma fell in love while studying abroad in the UK. Peter was from Tanzania, while Emma was from Mexico. After graduation, they decided to marry legally and settled in the UK together. The two were blessed with two children. However, their marriage was not all roses and sunshine. One day after a heated argument, Emma decided to return to her home country, Mexico, while Peter remained in the UK.
They continued to talk regularly and visited each other often while in a long-distance relationship, but the marriage continued to hit rock bottom! And the struggle became intense. Eventually, they both decided to get a divorce. Still, the process was complicated regarding jurisdiction due to their different countries of residence, custody of their children, and division of their jointly acquired assets. However, despite the challenges, they got an experienced lawyer who took them through the process.
Peter and Emma’s case illustrates the complexities of divorce in a cross-border context, as the logistic challenges and the proceedings were quite significant. This article addresses how to approach these challenges in-depth as below;-
Transformed by the advent of globalization and the increasing movement of individuals and families across national borders, the number of international marriages has increased significantly. Many married ex-pats find their marriage travelling beyond the borders of their home country.
But for various reasons, things can alter, although it could appear to be a storybook relationship at first. Then the question arises, what happens if the long distance takes its toll and the marriage starts to fall apart?
Many spouses first underestimate the difficulties that arise in divorce on international scale. Divorce rules might differ internationally depending on your native country and where you live. Both sets of regulations will ultimately fall under your responsibility, making it challenging to manage everything independently.
This article aims to reveal all the issues that a divorce on international scale has to deal with, or, to put it another way, divorce conflicts from an international perspective.
In What Circumstances Can Divorce Create Conflict Internationally?
The following factors are taken into consideration when determining whether a couple has ties to more than one nation:
- Where the couple (and any children) are presently residing;
- Where the couple is domiciled;
- Where the couple owns the property;
- Where the couple was married or spent time abroad;
- Where the couple had a foreign or other marital contract and whether that agreement makes provision for where their divorce should be handled; and
- Heritable (bricks and mortar) properties.
Any of the variables mentioned above might influence the decision to divorce.
Divorce Conflicts From the International Perspective
In the context of global families, the case for allowing spouses to pick the law that applies to their personal and property interests is exceptionally persuasive. When parents file for divorce, the challenges imposed by international conflicts are amplified for spouses and families that travel between fundamentally different legal systems.
Family law issues have grown to encompass Hindu law, African customary law, and Sharia-based law, besides the evident distinction between common law and civil law systems. Due to increased dual nationality and cyclical travel patterns, many people and families have retained varied links.
Which Country’s Legislation will Govern divorce?
Basis for deciding the legislation applicable to international divorce
Because it serves as the cornerstone of family life, the state in which the parties to the marriage establish their primary residence has a crucial stake in that status. Divorce is an issue in which the state is involved since it ends the marital status, and legal action can only initiate it. Thus, it has been determined that the state law of the state with which the spouses are most closely associated, i.e., the place where they reside and have their home, will control the granting of divorces, excluding any divorce problems from an international perspective.
Depending on the domicile of the parties
The concept of a permanent residence is implied by the word “domicile.” The domicile refers to “the place with which a person has a settled connection for legal purposes, either as a result of his residence or by law.” According to the widely recognized theory, jurisdiction depends on the parties’ residence when the decision is issued since proceedings for a divorce deal with the parties’ status. Moreover, as stated by the Restatement of Conflict of Laws, “A state can exercise through its court’s jurisdiction to dissolve the marriage of spouses both domiciled in the state.”
Conflicts in the international divorce settlement
Yet, on divorce conflicts from an international perspective, worldwide perspectives show that divorce disputes can occur often. For instance, spouses may cohabitate and accumulate assets in country A before moving to country B and divorcing, or they may cohabitate in country B before moving to country A and divorcing. Or a couple lived in the United Kingdom, where the husband obtained his federal civil service before relocating to Japan, where they finally divorced and retired.
In those cases, the matter at hand is which nation should be regarded as where a person has a fixed relationship for legal purposes. In addition to a statutory reason for divorce, several jurisdictions require that the person filing the complaint has lived in the state for a particular number of months or years. Some courts, however, argue that residency inside the state for a specified period is a jurisdictional need for a valid order. In other words, if it determines that a divorce decree issued in a form that requires the party complainant to dwell there for the requisite period is illegal if the party seeking the judgment was not a resident for the appropriate amount of time.
The primary issue with divorce is brought on by the court’s exclusive application of its legislation when hearing the petition; in terms of divorce conflicts from the international perspective, there isn’t an option for the law component. What was wrong with a “quickie” Nevada or Mexican divorce from a Canadian perspective years ago was that the Nevada or Mexican courts disregarded Canadian values in upholding a marriage. Set aside the matter of whether these values make sense.
Suppose Canada, having eliminated the residence barrier for a Canadian divorce, becomes like Nevada. In that case, we can divorce as many couples as we like, but the areas where the person returns (or where one party may have remained) may not accept the divorce. In other words, they may be unable to remarry in certain areas or reasonably expect Ontario law to address their support responsibilities.
Where Should the Divorce be Filed?
Many foreign couples discover they are eligible for divorce in more than one country, allowing them to choose their government. If you have a choice between two nations, it is a good idea to consult with an international divorce attorney who can help you understand and assess the variations in the two countries laws. Or, more simply, you can visit the LegaMart directory and employ a lawyer to grasp all the details about divorce conflicts from an international perspective based on your questions right from your smartphone.
Yet, to give you brief information, below are the factors to consider:
- Which countries recognize your prenuptial or postnuptial agreement
- In each jurisdiction, what level of financial disclosure is required?
- What grounds (cause) for divorce are legally necessary for each country?
- What assets are involved, and where can they be found?
- Divorce’s practicality in each nation (how long you must be there, for instance)
- The duration of the divorce procedure in each nation
- The ease or difficulty with which directives issued in each nation are enforced.
- The cost of the procedure and legal expenses in both nations
- Spousal support and child support laws apply in both areas.
How each nation handles a forum disagreement (if you want to process the divorce in one country while your spouse wants to do it in another)
How Custody is Determined in Each Nation?
Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
A comparable international arrangement covering spousal and child support was ratified and signed by the United States on November 23, 2007, at The Hague. Countries that join this agreement commit to enforcing each other’s child support and spousal support orders. The Convention is still in effect in 43 nations throughout the world today. Yet, governments that are not signatories to the Convention may not enforce them, which may cause divorce conflicts in the international perspective in the future, depending on where your ex-spouse lives.
International Custody Issues
The custody dispute is yet another example of the difficulty of divorce conflicts from an international perspective. Federal legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) mandates that states respect the jurisdiction and custody decisions made by other nations so long as the parents are given notice and an opportunity to be heard.
Under an existing custody arrangement, member nations are required to comply with the Hague Convention on the Civil Aspects of International Child Abduction to restore children whose parents to a foreign country have been abducted.
The Convention also stipulates that when it comes to custody disputes, children benefit most when the laws of the nation where they typically reside are used. Nonetheless, the United States Supreme Court has ruled that habitual residency will be determined on a case-by-case basis and will not be based on any agreement between the parents about where to raise the child. According to the general rule, the court where the children reside has jurisdiction to determine who gets custody of them during a divorce. Most authorities maintain that the divorce decree is final and will be recognized and enforced by another state as of that date.
Recognition and Enforcement of Foreign Judgments in divorce cases
After the delivery of a divorce judgment in one country, it may be necessary that the same be recognised and enforced in another country. However, the process can be complex because each country has its own rules for recognising and enforcing a foreign judgment.
There are factors that may affect the recognition and enforcement of foreign judgments. A good example is whether the court that issued the judgment had jurisdiction over the parties. The issue of jurisdiction goes deeper into the country’s applicable laws and whether due process was followed. If the answer to these issues is affirmative, recognising and enforcing such judgment might be easier. Therefore, some general principles can help guide the process; –
Generally, the principle of comity should play a vital role in recognising and enforcing foreign judgments in divorce cases. The application of this principle is based on the reasoning that the recognition and respect that one jurisdiction shows for the laws and decisions of another jurisdiction.
Concerning a divorce case judgment, if a divorce judgment has been issued in one jurisdiction, other jurisdictions are bound to recognise and enforce that judgment provided certain conditions are met.
Navigating through the complexities of recognising foreign judgments in divorce cases can be tiresome. You should speak with an experienced family lawyer at Legamart to provide guidance and advice on the specific laws and regulations and any necessary legal proceedings on divorce.
Legal formalities do not govern divorce. When several countries and legal systems are involved, the process of granting separation becomes more interwoven. Laws are changing and attempting to make more significant changes without regard to jurisdiction or application. Recognizing the challenges of international divorce, use caution while making any choice that will affect your future.
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