With an increase in international marriages and an ever growing number of couples living and working across several countries during their marriage, it pays to understand how to deal with assets that may be based in different countries if you are getting divorced.
The importance of divorce jurisdiction
The starting point is that the country that is dealing with the divorce has jurisdiction to deal with all the assets of the marriage, wherever they are based. However, this may not be straightforward in practical terms even if the parties reach an amicable agreement.
In the case of pensions for example, a couple may have a pension pot which comprises frozen pensions located in different countries. Although pension sharing upon divorce is a fairly standard approach in England & Wales, this may not be possible for a pension based outside the UK. That country may simply deal with pensions in a different way. On the other hand, if you get divorced in another country, say the USA and a Judge orders that all the pensions are to be shared, you need to be aware that there will be practical difficulties with implementing the terms of a USA based agreement upon Pension Trustees based in England.
If you are going through an “international divorce” it’s essential to get a family lawyer on board who is used to dealing with the complexities of cross-border issues. There is almost always a solution but you can save time and money by identifying the issues right from the start. Below are our top tips for dealing with international divorce.
5 top tips for dealing with divorce assets across borders
- Establish where all the matrimonial assets are based, including the pensions.
- If you are getting divorced in another country, but there are assets based in England that need to be dealt with, make sure you instruct a specialist family lawyer here before you finalise your agreement abroad. We can help discuss how best to deal with the assets and also how to draft any agreement to give it the best chance of being implemented swiftly and cost effectively.
- Consider whether it may be easier to offset assets based in one country against those based in another country – this can make the process of implementing your agreement more straightforward.
- If you already have a divorce from another country which sets out that certain assets based here need to be sold or shared, you may have the option of making an application to the court under Part III of the Matrimonial and Family Proceedings Act 1984. This is a really useful piece of legislation, which allows a Judge based in this jurisdiction to make orders to deal with assets based in England, even if you did not get divorced here. A good example of this is where you need to share a pension based in England but this is not possible without a pension sharing order from an English Court.
- If you are getting divorced in this country but there are pensions or other assets based in another country, make sure you are also talking with lawyers based in the relevant countries from the start. Our network of lawyers based in multiple jurisdictions provide invaluable insight into the simplest way to divide the assets and crucially the best way to draft an agreement so that it can be implemented in another country.
As always in a complicated case early advice is essential.
Expat divorce & family lawyer