With the ever-increasing job opportunities outside of the UK, and the lure of better weather and lifestyle elsewhere in places such as Dubai, the question of how assets are treated upon divorce has become a growing issue.
Cases in which a separated couple have a connection to another jurisdiction, by virtue of them having relocated or that one or both of the parties were born outside of England and Wales, can be complex and therefore legal advice should be sought at the earliest opportunity.
Which country should deal with the divorce if the separated couple of connections in more than one country?
The initial consideration is which jurisdiction should deal with the divorce and resolution of financial matters, and this is not straightforward as all jurisdictions have differing laws with the law in some jurisdictions being less favourable to one party, particularly the financially weaker party.
It may be that the parties will not be able to agree on which jurisdiction is to determine the financial matters, and that being the case prompt action is required to issue the relevant proceedings in the parties’ preferred country to seise the jurisdiction of the court. This may result in contested court proceedings if the jurisdiction is disputed, but ultimately if there is a connection to more than one jurisdiction by virtue of one or both parties either living there or they class another country as their permanent home in which they have significant connections, such as a country of birth, then proceedings can be issued in this jurisdiction whether the legislation is more or less favourable to one party.
Can assets held internationally be considered in a financial settlement in England and Wales?
The answer to this is yes, the court in England and Wales will have regard to all assets that are available to the parties, to enable them to determine what a fair settlement would be. However, assets held outside of England and Wales can be more challenging to trace if one party is not being transparent about their finances and to subsequently place a value on, but this can be resolved with the assistance of the relevant experts dependent upon the facts of the case.
Assets such as pensions need careful consideration and in particular, the rules under foreign pensions schemes, as the treatment of offshore pensions can be complex more so following the decision in the case of Goyal v Goyal (No 3) [2017] by Mostyn J that the powers of the court in England and Wales to make a pension sharing order do not extend to overseas pension funds. However, that is not to say that an overseas pension fund would be disregarded, there are several alternative approaches that can be taken in such circumstances to achieve a fair outcome.
Will an order made in England and Wales be enforceable in another Country?
It is possible to enforce an order made in England and Wales in other countries, but that is dependent upon the relationship that England and Wales have with the country in which the asset is held. Some countries, including Dubai, will be reluctant to enforce orders that are in contrast with their own legislation. Steps can be taken to mitigate risks of enforcement in other jurisdictions by obtaining an accurate understanding of the legal position in the relevant country and the likely approach to be taken should enforcement proceedings be issued.
When there is a connection to another country and assets overseas, prompt advice should be sought. If you require advice on divorce and the resolution of finances, then contact our experienced family lawyers who can assist you in navigating through this process to achieve the best outcome for you.
Author
Claire Chrisnall
Senior Associate – Family Law