It not uncommon for there to be a cross-border elements to many marriages whether you and/or your spouse are from different countries and/or you have invested in assets abroad.
When a marriage ends with foreign assets being owned by you together or by one of you there is an added element of complexity to the obtainment of a financial settlement whether by consent or through legal proceedings.
What is a foreign asset?
Foreign asset or otherwise known as an overseas asset can be tangible or intangible. It may be an owned property in Europe or further afield. Money held in a foreign bank, pension fund held with an overseas pension provider and trust funds held off-shore. There may be a possibility that one of the spouses receives their income from an overseas company that is not registered in England and Wales. In simple terms if you believe that you or your soon to be ex-spouse own or have an interest in an asset that is not owned in England and Wales then it is likely to be defined as an overseas asset. When your family law solicitor and the Courts then come to consider the finances of the marriage they will be alerted to the fact that there is an international element which will add to the complexity of the financial process. Our family law solicitors are experts in divorce with an international element and will be able to provide you with the advice and guidance require to navigate the financial proceedings.
What consideration do the courts consider foreign assets on Divorce?
Providing the divorce proceedings are through a Court in England and Wales all overseas assets are treated the same as any other assets. There is an obligation for the parties to disclose all assets they own whether in England and Wales or overseas. It may well be that one party seeks to argue an overseas asset is not marital as it was pre-owned and never intermingled with martial assets however the obligation to disclose remains.
Complexity of foreign assets within divorce proceedings.
Hiding assets overseas within divorce
It may be easier for one party to hide the asset if it is a foreign asset especially if the asset is owned in a non-English speaking country and the other party cannot speak or understand the relevant language. Each country has it's own rules as to how property ownership for example is registered and regulated. If you believe that your spouse is trying to hide assets oversea then a family solicitor can assist in locating the asset and account for the value of it within proceedings. Family solicitors can utilise forensic accountants to find any signs of hidden assets to compel your spouse to disclose. We can also instruct on your behalf solicitors in the oversea country to assist with the location and identification of the asset to include obtainment of a valuation. If you and your family law solicitor are successful and the hidden overseas asset is identified your spouse may face a Cost Order for the work undertaken at cost to yourself and they may receive a lesser settlement from the overall finances due to their conduct.
Accounting issues and documentation for foreign assets within divorce
If overseas assets are not disclosed nor accounted for then proceedings can go on a for a long time and costs can increase expeditiously. Both parties should endeavour to gather all documents pertaining to the assets they hold and if necessary obtain a certified translation of the document into English. Having all the documents can avoid the accusation of hiding assets abroad and ensure costs are kept to a minimum.
Enforcement of the court’s financial order on divorce
The Court and the family solicitors involved in the case should consider whether an Order made in England and Wales in relation to a specific overseas asset can be enforced in the country that asset is located in. The UK has internal arrangements with many overseas jurisdiction to recognise and enforce orders made by the UK courts. If it is clear that an overseas asset is owned in a country that the UK has no reciprocal recognition of Court Orders then your family solicitor should be seeking for your share of the value in the overseas asset to be off-set against your spouse's share of an asset owned in England and Wales or another overseas country whereby UK Court Orders are recognised.
What if one spouse wishes to relocate internationally with the child of the family?
The likelihood of one spouse or partner (if unmarried) wishing to relocate internationally to their home country increases upon separation from their spouse/ partner. The difficulty arises if they have children together. Whilst any spouse/partner is free to relocate as they wish subject to immigration rules a minor child of the family who has lived in the England and Wales can only relocate if everyone with Parental Responsibility for the child agree (that will usually be the parents of the child). In the absence of the written consent of all parties with parental responsibility, the parent wishing to relocate the child internationally must apply to the Court for a Specific Issue Order under the Children Act 1989 for permission for the child to relocate.
These proceedings are completely separate to any Divorce and/or Financial Proceedings which include overseas assets. Application for international relocation of a child is a standalone application.
The Court considers the following when deciding to grant an Order for international relocation of a child.
- The welfare of the child is always paramount.
- There is no presumption in favour of the applicant parent.
- The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
- Consequently, the proposals have to be scrutinised with care and the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.
- The effect upon the applicant parent and the new family of the child of a refusal of leave is very important.
- The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.
- The opportunity for continuing contact between the child and the parent left behind may be very significant.
- The family court referred to the guidelines from Payne for many years. However, post-2010, legal practitioners began to criticise the guidelines for placing too much weight on the effect of a refusal to relocate on the applicant parent (usually the mother)
If you're part of an international couple you should advice from a divorce solicitor with experience and understanding of finances which include overseas assets. Our family divorce solicitors can advise you before you even begin proceedings as to what steps are required in particular reference to your case to achieve a fair outcome. We will also be able to advise of what weight if any an overseas Pre-nuptial or Post-nuptial agreement will have to a financial settlement within England and Wales.
