Marriage and divorce: what every ex-pat bride should know and do

If worst comes to worst, make sure you have back-up.

If your intended spouse is a foreign national and you are going to move overseas to be with them, are you aware that if your marriage breaks down, you may be unable to return home to your family with your children?

You could, for example, be held to a pre-nuptial agreement in a foreign language that you did not understand when you trustingly signed it. What if it makes no proper financial provision for you or your children?

You may be submitted to the mercy of a foreign court – a religious court, even. What if it enforces a decision weighted against you, a decision that a court in your home country would not contemplate? At best, your departure would be authorised and you would then have to uproot your children and change their entire way of life.

At worst, that court’s decision could leave you in a terrible situation: legally unable to leave that country with your children. 

As for fleeing your spouse’s country without permission: I have been involved in child abduction cases all over the world. The outcomes can be heartbreaking, with parents permanently separated from their children until adulthood. Would you wish that to happen to you?

As the head of an English family law firm specialising in international cases, I have litigated many such cases and encountered the scenarios outlined above. I know that when you are in love and your heart is ruling your head, such possibilities seem distant.

However, if you are about to marry and move abroad to be with a foreign national, I recommend that you do what you can to ensure that if worst comes to worst, you can extract yourself with minimum difficulty.

If you are English, do not under any circumstances sever your links. I strongly recommend that you maintain a place of residence in England – even if it is your parents’ home. Visit as frequently as possible. If you can do some work in England, do so.  Maintain an English bank account and save as much as you can, in case of a rainy day. If you must hand money or property over to your spouse, take every step you can to ensure that it is protected. Do maintain a doctor, dentist and other links with England. Make sure your children visit England frequently and stay there as long as possible during their frequent visits. Make sure they speak and understand English and are comfortable and confident in an English environment. When they are in England encourage them to make friends, attend activities and feel settled, just in case they ever move there – as a result of divorce or otherwise.

But first, dare I say it: draw up a prenuptial agreement that will also be recognised in the country in which you intend to live, agreeing that in consideration of the forthcoming marriage:

  1. Both parties irrevocably submit to the exclusive jurisdiction of the English court in relation to any matter arising out of the agreement, including any challenge to its validity.
  2. Both parties irrevocably consent to the English courts exclusively making orders in relation to the marriage including orders in relation to finances, residence and contact with the children.
  3. Both parties irrevocably consent to fully comply with and fully execute any order made by the English court, and irrevocably authorise the foreign court to enforce any such order in the event of default.
  4. Both parties irrevocably undertake not to institute marital or family proceedings against each other in any other country, notwithstanding any entitlement or connection the parties may have with that country.

(Please note: this checklist is intended as a preliminary guideline only, and is not comprehensive. You must not rely on it and you may need advice from lawyers in both jurisdictions, but I believe it will be worth the expense.)

The provisions of such an agreement should also include full disclosure of the parties’ finances and a financial settlement (and how it is to be paid and even security for payment). Proposed arrangements for any children should include their main country of residence post-divorce, where they are intended to be educated and how their time is intended to be divided between their parents. In cases of serious risk there may be security provisions; for example, governing the obtaining and deposit of the children’s passports.

Provisions may also include a review after a certain passage of time. Any agreement should be negotiated at arm’s length, with both parties being fully and independently advised by the lawyers in a language they understand.

For me, the most important consideration is one that I have dwelt upon in another recent post: how prenuptial agreements affect the balance of power in a marriage. In the case of marriage and a move overseas, the bride is taking all that risk upon herself and her unborn children. It seems to me that by signing a prenuptial agreement, the future husband would be acknowledging and safeguarding his future wife against the unfair consequences of that risk.

2 comments

maria - January 24, 2009 at 11:21pm

So, what happens if you aren’t married? What happens if upon separation you can not afford to live in Spain, for example, or if carrer opportunities were better and your lifestyles would be considerably better?

What steps should be taken when considering separating to safeguard your future and that of your child’s?

Marilyn Stowe - January 26, 2009 at 10:55am

You have hit upon a gap in English law which I am constantly highlighting. There is no specific cohabitation law in England. It does exist in Scotland and I will shortly be posting a blog, written in conjunction with a Scottish lawyer outlining the contrasting positions in both countries.
There is provision under the Children Act for an unmarried parent with a child to obtain relief from the other parent for the benefit of the child. It is far from satsfactory but it is a potential rememdy.
There is also the potential for a cohabtiation agreement to be entered into, before leaving the country, making provision for how the relationship is to run financially, and what is to happen if the relationship ends. This could include where a child is to live, with whom, contact arrangements with the other parent, travel provisions, financial provision including maintenance and housing etc.
As matters currently stand, any dependent spouse or partner with or without children, is taking a substantial risk going to live abroad without an agreement in place as to what is to happen if the relationship breaks down.

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