Divorce:

Understanding International Divorce

It is a small world after all, and as it continually gets smaller, issues like international divorce and questions surrounding it become increasingly relevant.  Laws regarding marriage differ considerably from country to country, making issues like divorce, which are already fraught with emotion, quite complex, and requiring the skill of an experienced and skilled attorney.  The following are points of note when initially examining an international divorce:

1) Jurisdiction:  This is a matter of first importance, as it impacts nearly all other aspects of the proceedings.  In the event that more than one country is involved in the matter, it must be determined which courts have jurisdiction and thus what laws will be applied. While the place of residence is emphasized by some courts, other courts look to nationality and citizenship.

Keep in mind that in many cases, the divorce can be separated from the related economic issues of the marriage. Consequently, one court may be able to grant a divorce but unable to resolve the economic issues.

Jurisdiction does have a very direct effect on the economic matters, as some countries differ on whether gifts between spouses are marital or separate property, whether professional degrees have economic value, whether an enhanced earning capacity is a marital asset, etc. Other factors, which may vary from one jurisdiction to the next and consequently should be explored when attempting to find a jurisdiction favorable to your case, include:

  • How the issues of fault is treated
  • The treatment of prenuptial or postnuptial agreements
  • The place of family businesses
  • The treatment of pensions and retirement benefits
  • The treatment of inheritances

Furthermore, matters arising from Hague Conventions considerably influence the issue of jurisdiction and need to be examined.

2) Necessary Grounds for Divorce: While "no-fault" divorces are allowed in some countries, others require that fault be proved.  Consequently, it is critical to explore how the issue of fault is treated.  Related and important issues include: What degree of proof is required? How many court appearances, if any, are necessary?

3) Maintenance and Alimony: The treatment of these issues varies considerably from country to country and consequently should be examined.

4) Child Custody: Does the country of jurisdiction favor fathers or mothers?  Does it disregard religion, or place a precedent on it?  The importance of issues varies drastically from one foreign nation to the next, and only an experienced attorney can provide helpful guidance in navigating these matters. 

5) Determination of Business Value: It is essential to understand how foreign countries determine the value of a business, especially if the business itself is international.  For example, discount rates are an important part of reaching an estimate of the business value, but discount rates vary greatly from one country to the next.  Many European countries have subsidiaries in multiple countries (similar to interstate companies).  These could increase the overall value of a business if they are compatible, but the value of the business may be significantly decreased if international subsidiaries are not included due to their incompatibility.  The point to keep in mind is that multinational companies operate by very different accounting rules.  Other factors, such as currency instability, union agreements, lack of legal protection for investors, political instability, varying standards of accounting practices, all come into play and must be factored in to the examination of business value determination. 

This is all to underscore the importance of thorough knowledge of international jurisidictions and their laws.

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