MYTH 2: ENGLISH LAW WILL APPLY WHEREVER WE LIVE IN THE WORLD IF WE ARE ENGLISH AND/OR MARRIED IN ENGLAND
In the second of our series, Lucy Greenwood an international family lawyer at The International Family Law Group LLP (IFLG), de-bunks the common myth that English Family Law For Expats will apply wherever we live in the world if we are English and/or married in England.
Over to Lucy …
Many couples think that because they are English (or one of them is) or they married in England, English law will always apply if they split up, even if they are then living abroad. They forget that when they live in another country the laws relating to that country also commonly apply to them.
There are a number of points to make about this Second Myth as the answer is not altogether clear-cut, as I will explain below.
Family Law For Expats. Myths Debunked Nº2…
Firstly, if an English national and a non-English national marry there is immediately a chance that at least two countries and possibly more (e.g. if they live in a third country even if neither of them originated from there) might hold sufficient connection for one or other of the couple to start divorce proceedings in a country besides England.
Let’s take some examples:
Two EU nationals from different EU countries (except Norway).
An English person marries someone from Spain. They marry in England and they decide to live in Spain. They have been living in Andalucía for 5 years and have two young children aged 2 and 4. Both children were born in England, but save for the immediate periods surrounding the times of their children’s births the entire family have always lived in Spain.
If they separate and want to divorce:
The only country in which they could divorce would be Spain.
(This is because the only remaining connection to England is the fact that one spouse is an English national and still considers England to be their true “home”. Under the relevant EU legislation, where a couple have a connection with another EU country and at least one of them resides there, then a spouse cannot rely on one of the spouses’ sole nationality/domicile to bring proceedings in that other country).
Also, because this applies throughout the whole of the EU (except Norway), if the same couple in the example above lived in England with their children instead of Spain, they could then only issue proceedings in England.
Because in the first example their children are also living in Spain any issues relating to the children would have to be dealt with in Spain; including arrangements for the children and perhaps relocation (if, for example, the parent with English nationality wants to move to England with the children and the Spanish parent does not consent to the children moving countries).
Therefore, this is an example where despite the fact one party was an English national and despite the fact they married in England because they have moved to another EU country, English law no longer applies.
Two English nationals living in Spain (NB: Spain could be swapped for any other EU country except England or Norway)
If in the above example both of the spouses were English nationals and both felt England was their true “home”, but they were living in Spain for the same time as above, then either party could decide to issue divorce proceedings in England or in Spain. This is because unlike relying on only one spouse’s nationality, the spouses’ joint nationalities/domicile will be given equal weight to where the couple reside, when which country in which to issue divorce proceedings is being considered.
Let’s assume for now divorce proceedings are issued in Spain.
Owing to EU legislation in whichever country one spouse first issues proceedings, that country secures the location of the proceedings. Therefore, in this example divorce proceedings are issued first in time in Spain, so England can no longer be an option for being the venue for divorce proceedings. It must be Spain as proceedings were issued there first in time.
So what law will the Spanish courts use?
Well… if the proceedings had been issued in England, then English law would apply.
You might think therefore that it would definitely be Spanish Law that would apply in Spain…but in this example where both of the spouses are English, not necessarily!
Let me now explain about something called Applicable Law, which arises in many EU countries (outside of England and Norway). It is a completely alien approach to English lawyers (and many are still unaware of its existence and relevance, but it does arise in other EU countries!)
In many EU countries (but not in England or Norway) where both spouses originate from another country and when they separate they live in say, Spain and one spouse issues divorce proceedings there first, the courts can (and in some cases should but don’t always know that they should) deem the case to be more appropriately dealt with by “applying” the national laws of the couple.
In our example where two English nationals marry in England but live in Spain for over a year and issue divorce proceedings in Spain, it would mean the Spanish court could apply English family law to the Spanish-based proceedings! This might sound bizarre, but it is true!
However because English law compared to many other EU laws is particularly complicated (as it is far more discretionary than many other EU countries’ laws which are commonly in a codified format) the quality of the foreign judges’ “application” of English law is very variable.
English family law is also often far more generous to the weaker financial party than many other countries throughout the EU and the world. For example, under English family law there will not be automatic ring-fencing of inherited assets or pre or post-marriage assets. English family law facilitates the use of some or all of those types of assets, if they are required to meet the weaker financial parties’ reasonable needs (sometimes even where a couple have selected a particular property regime abroad prior to marriage, including a pre-nuptial agreement which are not binding in England).
Spousal maintenance is also commonplace in England (where there is a significant disparity in income between spouses and a payment from one spouse to the other is needed to meet the shortfall of their reasonable income needs). “Needs” in English law is not necessarily basic needs, as the standard of living enjoyed throughout the marriage is a relevant factor when deciding a spouse’s reasonable needs.
In this second example, disputed aspects of the children’s’ arrangements upon separation, will still most likely take place in the country in which they reside (i.e. Spain). So if the couple still live in Spain and even if divorce proceedings take place in England, any aspects about the children’s living and care arrangements are still likely to take place in Spain (although sometimes the parents can elect to use England if the divorce proceedings are taking place there, but not always).
So how does “Applicable Law” work in practice where the foreign judges are not qualified to practise another country’s laws?
The courts in Spain and other EU countries where Applicable Law is used rely on expert reports from lawyers in the country whose laws are to be applied.
In the case of English law, one English lawyer’s view of the outcome in a case can be very different from that of another English lawyer. Also sometimes English or other countries’ laws that are to be “applied” can make orders which are just not possible in the country seeking to “apply” them e.g. Spain might not be able to make some of the orders English courts can make!
Common anomalies arise about the relevance and division of pre-marriage assets, pensions as well as the duration of spousal maintenance which can have an open-ended term in England; whereas in most other EU countries a three year period might be deemed a lengthy duration for spousal maintenance. Pension sharing is also commonplace in England but it is not in other EU countries.
It is also highly likely an EU court, including Spain would find a pre-nuptial agreement or pre-elected property regime binding.
So, as you might appreciate other countries whilst on the face of it might claim to “apply” another country’s laws, will inevitably interpret them in a different way influenced heavily by their own laws, culture and practices.
On the face of it therefore, whilst it might be true that even if you move to another country English law might still “apply”, it is certainly not always the case and in those countries where it is deemed to be “applied”, it is probably not interpreted in a way, which is recognisable to many English practitioners or judges! So beware, particularly if you are the weaker financial party in the marriage.
If it is of benefit to you for English law to apply, and particularly where another EU country could be used to issue divorce proceedings, it is very important that you seek specialist legal advice from an English international family lawyer and seek to issue divorce proceedings first in time in England, You should not seek to rely on the fact Spain (or another EU country) might potentially use “applicable law” in your case.
Even if you get a judge that knows they should use applicable law (and as I mentioned above many throughout the EU, particularly in the regional courts, do not even know they should!) the outcome is still likely to be very different to what it would have been if you had issued first in time in England, where English judges would be using only English law.
Furthermore many EU domestic family lawyers do not know of the benefits of issuing in your chosen country as opposed to seeking to rely on “applying” its laws. Some lawyers don’t even know that other countries’ laws can be “applied” in some circumstances in their courts!
Steps to take
Therefore, if you are in the sad position of thinking your relationship or marriage is ending and you and your partner have a connection via residence or nationality to different countries, please urgently and discretely (i.e. without notifying your spouse) get in touch with an international family law specialist before your spouse does so. If there is a connection to England, then you will need to contact an English based international family lawyer.
Pre-marriage agreements where spouses are nationals or even dual nationals of different EU countries can also be used to help to plan which EU country’s laws they wish to apply if they separate and divorce. I will be dealing with international pre-marriage agreements in a subsequent article.
For more information please contact Lucy Greenwood of The International Family Law Group LLP www.iflg.uk.com
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