Spouses who go forum shopping for divorce
Frank Arndt, the Head of our International Family Law Unit at Stowe Family Law, recently attended an international family law conference in Malaga, Spain. While he was there, Frank was interviewed by the editor of Sur in English – one of that region’s most popular English language publications – about expat divorce and “forum shopping”. The feature appears in today’s print edition.
SPOUSES WHO GO FORUM SHOPPING FOR DIVORCE
By Liz Parry
If you think your marriage may be on the rocks, think twice about moving to another country, says Frank Arndt
It is well known that two of the most stressful things in life are getting divorced, and moving house.
When the move is to a different country to start a new life in the sun with your partner, though, it seems reasonable to think that at least it is only the stress of moving you are going to face, and divorce is unlikely to be on the cards in the near future. But is this so? According to Frank Arndt, who was in Malaga last week for a meeting of Spanish and British lawyers, all may not be as it seems.
Frank, who works for the Stowe Family Law firm in the UK, specialises in transnational family litigation. Because laws and procedures vary so much from one country to another, some of the more wily would-be litigants, including those who are intent on getting divorced, are going “forum shopping” – filing the case in the jurisdiction most likely to find in their favour and getting a head start on the unsuspecting party. By way of illustration he describes the case of a wealthy man who lured his wife and children to live in South Africa and then divorced her and returned to the UK leaving her stranded thousands of miles away, with children who could not be moved.
Other women have had similar experiences after planning a family move to Spain, where unlike in England, the divorce courts do not insist on “full and frank disclosure” of all the couple’s assets. By the time the second partner in the case gets wind of the impending divorce, it is usually too late: the case will be heard in the jurisdiction where it is first filed. According to Frank, this situation has led in the past to scenes worthy of being filmed. One wife who had moved with her husband to France found out that he was intending to file for divorce in Paris, and immediately flew back to the UK. She rushed to file her own petition in London, but her husband got there first, by ten minutes, and the case was heard in France.
“Cases like these are not isolated,” says Frank. “It is a real problem, and in my opinion both parties should be on an equal footing”. This and other similar issues were being thrashed out by lawyers last week in Malaga, where because of the exceptionally large foreign resident population, there is a high incidence of transnational litigation.
Custody
The problem of being unexpectedly confronted with a divorce case in which the unaware party will probably be financially disadvantaged is obviously compounded when there is child custody to be taken into account. Frank describes European family law as “like a dog’s dinner” and tells the sad story of a case he recently undertook on a pro bono basis to help a woman, Carly Jones, who had returned from Germany to the UK for cancer treatment and was having to fight the German courts for her right to her children. Frank represented Carly in Germany, obtaining an order that they should travel to the UK to see their mother. The German social services refused to comply, and then appealed against a decision to enforce the ruling, and tragically, Carly died just before the appeal was due to be heard.
SUR in English asked Frank if the notorious slowness of the law in Spain was a factor to be taken into account, but he thinks that family law in Spain does not share this reputation. Delays in court procedures cause stress everywhere though, he says, and in Germany a proposal has been put forward to compensate people financially if their cases are held up.
Frank has some advice for those who are involved, or who suspect they are going to be involved, in a family law case. “Get legal advice fast”, he says, “and get the right advice, from a lawyer who will consult with lawyers in the other country, not just go with their own national procedures”.
You can find the latest digital edition of Sur in English here.
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2 Comments
Quenby Wilcox on September 22, 2010 at 12:59 am
The trick is finding an honest, competent lawyer. I am on #7 in Spain.
Here’s my story. Unfortunately, it can, and is happening all too often in cases of international divorce!
Of Exes and Expatriates by Niv Elis – July 29, 2010
Quenby Wilcox hasn’t seen her children in over two years. She has no access to her assets or her fledgling business. Her life has been thrown off course by an issue that affects millions of people around the world: divorce. As messy as ending a marriage can be on its own, Wilcox faces the added complications of competing national jurisdictions and international law.
Originally from Louisiana and Arizona and educated at George Washington University, Wilcox ended up marrying a Spanish man, whose employment with a multi-national corporation took them all over the world. As a so-called “trailing spouse,” she followed her husband’s employment to Paris, Miami, back to Paris, Madrid, Brussels, Paris again, Bogota, and finally Madrid again. Often unable to get work permits or stay local long enough to cultivate a career, she focused her attention on raising their two children. But over time, says Wilcox, the marriage soured and her husband became abusive (While she refers to psychological abuse, she specifies that there was never any physical violence). When they got divorced in Spain, she says, she was left out in the cold.
“Basically, if you’re the foreigner and the spouse is the national, they win everything,” says Wilcox.
Unfortunately, such cases are not uncommon. Few legal protections exist for expatriate spouses, even in rich countries like Japan, Australia, and many European countries.
According to Paula Lucas, the founder of the Americans Overseas Domestic Violence Crisis Center,( http://www.866uswomen.org ) an American living abroad may face enormous obstacles, especially in abusive situations. Having escaped an abusive husband in the United Arab Emirates with her children in tow a decade ago, Lucas knows the legal difficulties of seeking international custody personally.
“There’s a bias to give custody to the national, rather than the foreign parent,” says Lucas. Furthermore, would-be divorcees often lack funds for legal help and face language barriers in court. They may be stripped of their legal standing in the country, denied visitation rights, and have difficulty accessing their assets if they leave the country. Worst of all, provisions of the Hague Convention on the Civil Aspects of International Child Abduction, a treaty designed to protect children from being kidnapped and taken abroad, fail to adequately account for abusive circumstances (for more information, see The Hague Domestic Violence Project -http://www.haguedv.org ).
In the first six months of this year alone, Lucas’s Crisis center received 1,189 calls from 281 expatriated men and women, representing 254 children. “What you think of as an American when you leave the country is ‘I can come home whenever I want,’” says Lucas. But as Quenby Wilcox learned, that’s not always so easy.
Having spent 20 years outside the labor force, lacking a credit history, and facing a well-connected ex-husband, Wilcox returned to the United States with only a suitcase in her hand. She found a job at a D.C. temp agency, rented a room, and sought to make inroads with U.S.-based advocacy organizations. “All I want is my money and to go back to Spain and live with my kids.” So far, she’s tried the State Department, the Justice Department, the American Consulate in Madrid, and even got Congresswoman Eleanor Norton Holmes to write a letter to the State Department on her behalf, but to no avail. “Everybody just keeps passing the buck.”
Until she can get her assets unfrozen, Wilcox is working to change the international legal provisions and judicial rulings that have caused her so much grief. And so, during her two week vacation from the temp agency, she is picketing at the White House, the State Department, and the Department of Justice, if not to change policy directly then to get support on her judicial quest. She has demonstrated with women fighting similar issues in American courts, as well as with men fighting for better visitation rights. Her Facebook causes page, (www.causes.com/causes/497298) entitled “Safe Child International,” has so far has attracted 400 supporters.
Once she raises some capital, her plan is to revive an idea for an organization she started in Spain called “Global Expats,” (www.global-expats.com -) originally intended to help trailing spouses with childcare issues, cultural adaptation, and finding jobs. “I didn’t realize that one of the things I’d be doing in the future was assisting women with domestic violence situations.”
Given the myriad financial, emotional, and legal stumbling blocks expatriates face, they could surely use the extra help.
Helen Dudden on November 15, 2010 at 11:21 pm
Hello Marilyn, this whole subject of the Brussels 11 and the use of Hague is something that needs a good overhaul. I read law within the UK and have a strong interest in Family Law, and the subject of international conflict.
How many years has this problem been ongoing? too many, Catherine Meyer and the situation with Germany, not a new story, I feel quite sad about something as important as child access to both the children and the parents, grandparents and family. Kind regards, Helen Dudden.