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.

Frank Arndt heads the International Law Department at Stowe Family Law

Our International Law Department receives a steady stream of enquiries from popular ex-pat destinations such as France, Spain, Switzerland and Australia. Some callers wish to know if they can issue divorce proceedings in England. As I have noted previously, many wives have good reason to file here if possible, because the financial settlements can be advantageous. Other clients seek qualified advice about the various legal avenues available to them, drawing upon our firm’s expertise in cross-border divorce, asset protection and our network of international legal contacts.

The department is headed by Frank Arndt, who speaks a number of languages fluently and has higher rights of audience in the Federal Court in Germany. He is a member of the International Society of Family Law and the International Bar Association.

Frank recently wrote an article for the online magazine Expatica, which is packed with useful information and has been well-received. In it, he details the “ten essential pieces of advice that should be followed by any ex-pat parent facing the challenge of family breakdown”.

I have copied the piece in full below. If any overseas readers have enquiries or comments, please use the comments section or the confidential contact form – I will forward all queries.

Frank Arndt looks at cases where the expat dream ends in despair and frustration. If your marriage breaks down, the prospects can be daunting if you are “stuck” in a foreign country.

In all areas of life, the world is getting smaller. Every year, British families embark on the dream of a new life abroad. At the same time, long-distance relationships are on the rise.

For many ex-pats, this new life provides all the happiness and enjoyment for which they had hoped. For an unfortunate few, this dream ends in despair and frustration. If your marriage breaks down, the prospects can be daunting if you are “stuck” in a foreign country, without a strong grasp of the language or knowledge of local culture.

However, while you may feel isolated, faced with complicated legal issues and dealing with foreign lawyers in an alien language, the truth is that help is always at hand.

My own firm has helped people from all over the world who have found themselves in such a situation and called upon us for assistance. In almost every case, the first questions we have been asked have concerned the client’s children: what can be done to protect them? What can be done to ensure that access is not unfairly restricted?

The good news is that even in the most serious of cases, where spouses return home one day to find their partners have fled taking the children, there are legal remedies. Although divorce is an extremely traumatic experience for any parent to go through, the first steps are always the most important and the main priority is to keep a level head.

For example, if certain criteria are met, you may be able to argue that you have a right to file legal proceedings in another country. Different countries require different levels of “residency” to allow legal proceedings to start. This question is no small one, because family law can vary enormously between one country and another – and the financial implications can loom large.

The basic rule of thumb is that you are a resident of the country you regard as ‘home’. The court will look at the facts: how much time you spend there, the location of your place of work and where you spend the majority of your time.
It is worth noting that different countries have vastly differing approaches to investigating the facts presented in court – including financial statements. If a spouse is able to hide their true wealth, the fairness of any settlement is at stake.
You should also be aware that every country’s legal system has its own nuances. If an initial separation order is filed in Spain, for example, spouses are prohibited from advancing proceedings anywhere else.  This is not the case in other European countries.

Careful preparation is a must. Here, then, are the ten essential pieces of advice that should be followed by any ex-pat parent facing the challenge of family breakdown.

1.    Wherever you are, seek advice from a good local lawyer with experience of international family law. The pressure to speak to the first lawyer with a decent grasp of your native tongue is very hard to resist, but it is far more important to get good advice. I once had to help pick up the pieces of a case where an English mother had relied on the advice of a German tax lawyer, who spoke good English but lacked adequate knowledge of the relevant family law. The local embassy or consulate can help you find an appropriate lawyer.

2.    Whatever you do, make sure that time is on your side – not your spouse’s.  I have dealt with cases in which proceedings have been issued in different countries, literally minutes apart. For the party filing last, there is no second chance. Delay filing your papers, and you risk disabling your case from the start.
3.    If you believe your partner is planning to flee with your children, you need to ensure that you receive the best possible advice about your rights as a parent with regard to cross-border child movements.

In one harrowing case, I advised a husband whose wife had fled – with their children – to the UK after many years of living in France. He had been reassured, by a French lawyer, that the normal separation process would take care of the custody issue.

Unfortunately, this advice had failed to recognise the significance of the first few hours in child custody cases, or the complications of cross-border separations. When he did apply to have the children brought back to their natural residence, the court ruled that the time delay was too great and no action could be taken.

4.    Whatever you do, don’t try and take matters into your own hands and flee with your children. I once received a call from a mother who had returned to the UK with her children, against her partner’s wishes. She believed that by doing so, she had increased the strength of her custody claim. In fact, the effect was quite the opposite and she was legally compelled to return to the country in which the family had previously been living.

5.    It is important to note existing residence orders do not restrict international movement. I once helped a father who had won an English residence order for his child. The father believed that this order prevented his wife from taking the child abroad. In fact it did not. Once the mother did relocate, we successfully re-established custody – but we had to resort to complicated international law that applied specifically to the child’s new country of residence. If the father had sought advice earlier, the mother’s decision to relocate could have been prevented. Even when there are several different legal tools available, it is important to use them at the right time.

6.    If you believe you have fair grounds to file a divorce claim in England, contact an English firm – one that specialises in international cases – as soon as possible. For wives and mothers, British courts are far more generous in their settlements and take a relatively dim view of partners who try to hide their true financial worth.

7.    Even though your children are your first priority, you mustn’t forget that it is in their interest for you to secure your own future. Secure your assets. This is especially important if your liquid assets are held in joint accounts: it may be some time before you are in a position to sell property or company shares, and in the meantime you will need to pay your way. If possible, ensure that your spouse doesn’t have sole access to your assets.
8.    Do you suspect that your partner may try to hide assets? If so, your English lawyer can apply for a ‘Worldwide Mareva.’ This is an injunction that places legal restrictions on a party’s financial transactions, worldwide. Additional measures can also be taken – for example, at Stowe Family Law, we employ a team of forensic accountants to ensure that wealthy partners do not hide their assets in offshore havens.

9.    Although it is easier said than done, always try to keep a level head. Erratic behaviour – from damaging property to trying to flee with the contents of a bank account – will only come back to haunt you under cross-examination in court.

10.    As a final point, do not rely on your understanding or assumptions of family law. As more cases are heard that involve international child custody issues, the law can change frequently and at dizzying speed.

Separation is never easy, particularly when children are involved. As more families find themselves separating across borders, this area of law is constantly evolving. Recent attempts to harmonise the law across the EU drew fire from several quarters, while courts in different countries are tentatively trying to use law from a claimant’s home state in an attempt to deliver fairer settlements.

Depending on the course of action taken, outcomes can vary wildly – which only reinforces the importance of good advice and timely action. The best advice at the correct time can protect your rights as a parent and ensure your financial settlement is fair.

While there is a great deal at stake and the pressure may feel overwhelming at times, there is always a light at the end of the tunnel for those involved. As one client told me, it may seem as though “your world is falling apart, but it is possible to get your life back.”

Once proceedings are over, you can move on and rebuild your life and your future. Who knows what opportunities await?

Frank Arndt is the Head of the International Department at Stowe Family Law, UK. He is a qualified lawyer in two European countries, a qualified judge in Germany and a registered European lawyer with the Law Society in England. An expert in cross-border family law, he regularly advises on cases involving families and assets scattered across continents. For more information, call +44(0)1423 532600 or visit http://www.stowefamilylaw.co.uk/

In my experience there can sometimes be “darker motives” behind a permanent move to sunny climes.

The Institute of Family Policy has announced that across Europe, divorce rates are rising. The think-tank’s latest study, which is out today, has concluded that marriages here are breaking down at the rate of one every 30 seconds.

With one million couples divorcing every year, the number of people choosing to marry has fallen sharply: between 1980 and 2006, the marriage rate fell by 24 per cent.

However, my attention has been caught by a couple of statistics buried deep within the report.

Just four countries – Spain, Germany, Britain and France – account for 60 per cent of divorces in Europe. The three countries with the highest rates of divorce are Spain, Belgium and Luxembourg; there, two out of every three marriages are breaking down.

These are rather alarming figures – and it is interesting that Spain pops up on both these lists. After all, it wasn’t so long ago that this country had one of the lowest divorce rates in Europe.

To my mind, there are a number of reasons why. Firstly, the divorce rate in Spain has risen sharply since the government there introduced an “express divorce” bill in 2005, which has made divorces quick and easy to obtain. Secondly, I find that the popular view of Spain as a deeply conservative, religious country is outdated. Like its European neighbours, Spain has moved with the times – and the social stigma that was once bestowed upon divorced women has been significantly reduced.

One final reason springs to mind. My practice, Stowe Family Law, specialises in international family law. We have noticed that over the past few years, our number of expat clients – many of whom are based in Spain – has soared.

I am sure that expat divorce account for a relatively modest amount of the overall total. Unfortunately, in my experience there can sometimes be “darker motives” behind a permanent move to sunny climes. It is not unknown for husbands to encourage a move abroad as part of a strategy to divorce in the most financially advantageous way possible.  This is because husbands stand to lose the most from UK divorce law. The family moves abroad, the marriage ends – and many wives, when they do not know to whom they can turn, are left stranded and destitute.

After seeing a number of such cases, I hold strong views about this topic. For this reason, a few months ago I penned a piece about this for the Telegraph, which makes particular reference to Spain – and contains plenty of pertinent advice. For those caught up in such a situation, I hope it can be of help.

Please click here to read the feature in full:

Could she have had a second bite of the cherry?

Clearly, Heather Mills was distraught when she stood on the steps of the Royal Courts of Justice and ranted about her award, the judgment and her treatment at the hands of the English court.

There are those in her camp who argue that the judgment was an extraordinarily cruel dissection of her crude attempts to present her case as a litigant in person, against the man who is arguably the best matrimonial finance barrister in the country. Quite why Heather Mills chose such a course of action is a mystery. But choose it she did, notwithstanding the fact that at present, a major criticism of English law in this area is that no-one can say with absolute certainty what the parameters are for settlements in short marriage, “big money” cases. There are so many possibilities. And so I wondered if, despite all the vitriol aimed at Heather, she has actually been an innocent victim of very unclear law?

When I read the judgment and noticed that the parties owned homes abroad, I wondered hypothetically what her position might have been if the facts had changed a little. What if Sir Paul McCartney, instead of being a homegrown superstar, had been a superstar in a foreign country?

If he had divorced her in that country in order to protect his financial position, knowing that the law of that country was much more favourable to him than elsewhere, and she had received only the tiniest fraction of his wealth, could she have come back to England and tried again? Could the courts – the same courts that made this week’s judgment – allowed her a second bite of the cherry and awarded her more?

Part III of the Matrimonial and Family Proceedings Act 1984 was brought into effect because it was recognised that financial hardship affected numerous people (mainly women) who had been divorced in foreign jurisdictions – even if they lived in England. In some of their cases, marriages had been ended abroad without any financial settlements at all, or settlements that were manifestly unfair.

Assuming that the criteria of domicile or habitual residence (to which I have referred in other posts) or ownership of a house in England and Wales can be demonstrated, then a spouse divorced overseas can apply to our English Court for a financial settlement. Provided the spouse has not remarried, he/she has recourse to the same remedies as a spouse divorcing in England.

So far, so good! Heather would qualify.

The court’s permission is still required, in order to proceed. This can be obtained “ex parte”, without the husband or his lawyers present. This, too, would give Heather Mills an advantage!

However, the court will not grant leave unless it considers that there is substantial prospect of success. The burden of demonstrating this success would fall on Heather. She would have to make a full presentation of all the facts as she knew them. However, in one case – W v W, heard in 1989 – the wife was still allowed to proceed in relation to certain properties, even though she had initially failed to make full and frank disclosure.

It is important to note that the English courts discourage “forum shopping”, which is the practice of going to another court simply because of dissatisfaction with the outcome in the first court. That would be an argument against any bid by Heather Mills. In one case, involving an award in New York in 1989, the wife objected and tried again in England – but her application for leave was refused. In another case, involving a French award in 1994, the courts held that orders of a friendly neighbouring jurisdiction should be respected.

Even so, modern jurisprudence does allow for leave to be granted. In a recent case, Ella v Ella (2007), the wife objected to Israeli jurisdiction for the divorce, but the Court of Appeal ordered that the case should be heard in Israel. However, they expressly mentioned the possibility of an subsequent application under Part III, if the wife failed to obtain an appropriately fair order in Israel. Also in 2007, the court upheld a decision to proceed even though a Nigerian court had already made an order.

I believe the courts would look at the facts of the case in the round. The case of Moore v Moore (2007) involved spectacular wealth. The courts gave Mrs. Moore permission to proceed even though the husband thought he had stolen a march on her by issuing divorce proceedings in Spain. I have referred to this type of trans-European jurisdictional race in an earlier post.

Mr. Moore had not applied for a financial settlement in Spain, so the wife swiftly applied ex parte in England using Part III. She had vehemently objected to Spanish jurisdiction. The English court could easily have declined jurisdiction and left the case in Spain, given we are all members of the EU and the “first out of the starting blocks” rule applies (see earlier post). Favouring Mrs Moore, however, it did not. Notwithstanding an appeal to the Court of Appeal, her application was allowed to proceed. Ironically the Spanish courts would have applied English law, as both parties were English nationals. So why did the Court see fit to find in favour of Mrs. Moore, exercising a kindly, patriarchal discretion in her own case – but refusing to, in others?

To put it hypothetically, consider a woman divorcing a hugely wealthy but foreign superstar. Seemingly because of the astronomical costs involved, she had been unrepresented in a foreign court. As a result she had been faced with a low offer, with little choice but to accept it or to litigate on her own. She had been largely unaware of the law, unaware of the technical process involved and unaware of how to argue for discretion in her favour, all the more so given that the law itself is so unclear in terms of the parameters of the award. She had been hopelessly unable to deal with cross-examining on complex financial disclosure, and hopelessly unable to cross-examine her husband or even present her own case with any merit.

Could such a woman come to this country and ask the court to reconsider her financial position? Having sustained a mauling as severe as Heather Mills undoubtedly did, would she have any serious arguments to put before an English court for a “rethink”?

I believe so. The law in this area is so unclear, so as to give rise to so many different interpretations of needs. In Miller v  Miller (2005), the House of Lords awarded Mrs Miller some £5 million out of £32 million for a childless marriage of two years’ duration. What gave her that entitlement to such a large percentage and Heather Mills to a tiny fraction?

As ridiculously exaggerated as I think Heather Mills’ needs were, I personally doubt that they would have been so minutely and painfully dissected by an independent English court, looking at the position completely afresh following an earlier, foreign decision. I doubt that such a tight rein would have been applied to her reasonable needs, given the fabulous standard of living of the parties, the welfare of their child, Sir Paul’s gargantuan wealth and the Miller decision. I believe that in these circumstances, Heather Mills’ award would have been at the top of the bracket – whatever that bracket actually is – and above all, would have given her back some of her dignity.

And it would not surprise me in the least if lawyers in this country and other countries, standing back and forming an objective view of Heather Mills’ fate, agreed.