Avvo, Inc., an online legal directory and Q&A forum say that requests for information about divorce surged 40 percent in the weeks approaching Valentine’s Day Consider a married couple that lived more than a year apart, decided to get a divorce from their marriage because they no longer live together.
After getting married the couple moved to a foreign country and now they want to get a divorce in a country that is different from the one where they got married. The question is: n this situation is in which country the couple can get a divorce and which legislation will be applicable?
Statistics show that one of the reasons divorce often happens after Valentine’s Day is because it’s one of those high expectation holidays. For many women, if (once again) she doesn’t get a nice gift from her husband or her spouse doesn’t plan an evening that is romantic or special enough for her – she may decide that he’s not the type of person she wants to be married to anymore.
Getting a divorce is not easy, but when it comes to a divorce with a foreign element (international divorce) the process can be even more complicated. In many cases, more than one country has jurisdiction in an international divorce case; although, different countries have different rules and divorce protocols; because of the differing legal systems and jurisdictions from one country to another, international divorces have some very particular challenges. These generally include:
- Property division, especially when one person lives overseas or the property is in another country;
- Relocation of children across country borders;
- Child custody issues involving different governments;
- Enforcement of court orders, including parenting plans, spousal support, and property division.
Another challenge of some international divorces can also be proving the validity of a divorce finalized under foreign legislation. In some countries, laws may prescribe that you are still married or that the orders issued in your divorce are not legitimate.
Since the 1970s, the international community has made efforts to simplify the procedure of validating divorce and enforcing court orders on property division, child custody, and child support across borders. More than 75 countries are members of the Hague Conference on Private International law, which includes several divorce-related conventions, including:
- Convention on the Recognition of Divorces and Legal Separations;
- Convention on the Law Applicable to Matrimonial Property Regimes;
- Convention on the Civil Aspects of International Child Abduction;
- Convention on the International Recovery of Child Support and Other Forms of Family Maintenance;
Not all member countries ratified all of these conventions, but they continue to be applicable in some circumstances and cases. Many people that are facing an international divorce find that the legislation in some counties allows them to reach a fair settlement with their former spouse, while for others, filing for divorce in another country is advantageous. Different jurisdictions have different rules and procedures for determining the outcomes of a divorce.
The divorce process and outcomes can vary significantly between jurisdictions, so petitioning in whichever country is likely to prove most convenient for you can make a big difference. Furthermore, you may find that getting divorced in one country will financially benefit you more than getting divorced somewhere else. Some countries may favor male over female partners in the way their court deals with divorce cases.
It may be more expensive or take a longer time to get divorced in one country than in another. So, if you have a choice of countries when it comes to starting your divorce it is important to do research on which country will bring you the best outcome. On the other hand, you should also take into consideration if it is practical for you to get a divorce in a different country.
Usually, divorce is a very stressful and unpleasant process so it is important to consider things such as the length of divorce proceedings in the country that you are deciding to apply for a divorce in if you speak the language and the costs of divorcing overseas.
Understanding in which country you can legally apply for a divorce and which is the most advantageous to your needs can be particularly complicated and could be influenced by where you were born, where you own property, where your parents were born, and which country you registered your marriage.
Regarding the choice of law, or country where you want to get divorced, you will need to fulfill the specific criteria required by the country in question, so you will be able to proceed with the divorce process. The criteria are mostly related to your permanent home (domicile) and habitual residence.
Domicile – permanent home
You can get divorced in the country where you were born or the country where you have your permanent home. However, an adult can only have one domicile at a time, either a domicile of origin (the country where you were born) or a domicile of choice (the country where you have chosen to make your permanent home), so you may need to make the decision.
Habitual Residency – a place where you live regularly.
To get divorced in a country other than the one where you were born or have your main home, you must be able to prove habitual residence, either by showing you are settled in that country or that you have plans to stay there for an extended period. Factors considered as proof of domicile and/or habitual residences include but are not limited to:
- Your nationality;
- Where you have property, including rental property;
- Where you usually live, work or study;
- Your financial arrangements and where you pay tax;
Divorce inside the European Union
Inside the European Union, some member states have adopted common rules to work out which law the court should apply, while others still use their national law to determine this.
Each country within the European Union has its own specific requirements regarding eligibility for divorce and financial settlements can also vary significantly. However, in most cases, you and your spouse must either be nationals of the country where you are applying for divorce or habitually resident there. In 2001, the EU brought in Brussels II; an important regulation concerning international divorce in Europe. Among other things, it states that:
- A divorce in one member state is recognized in another member state;
- Judgments pronounced in one member state should be recognized in another;
- Divorce certificates should not be appealed, except in the event of a material error;
Divorce outside the European Union
If you or your spouse has applied for divorce in one country and the other party wishes to divorce in another country that is outside the EU, you/they may reject that petition – if there are grounds to do so.
If you can’t agree, the courts will decide which country is more appropriate to proceed with the proceedings, usually based on which has the closest connection to you, your spouse, and your family. The legal term for this is a ’forum dispute’.
Regarding the foreign judgment recognition in most countries outside the EU a foreign judgment of divorce generally is recognized on the basis of legal reciprocity where both parties had notice of the divorce proceeding and an opportunity to be heard within these proceedings.
An international divorce occurs when the married couples have connections to another country; for example, if a couple has relocated to another country, or has married a person with a different nationality.
The reason why international divorce can be complicated is that each country has its own specific laws and regulations regarding divorce. If you wish to end your marriage, but you are uncertain of how to proceed due to the international elements, your first move should be to seek advice from a specialized legal consultant as soon as possible. This is essential, especially if the split was not amicable, as your former spouse may be able to take advantage of the laws in a foreign country before you are able to start with the divorce proceedings, in this situation that country will have exclusive jurisdiction over the divorce from start to finish.