International Divorce Laws: Which One Applies?

Divorces that cross borders are more complicated than interstate or intrastate divorces. The laws surrounding divorce vary widely across the world, reflecting diverse legal systems and cultural norms. When it comes to multinational divorces, there is no international equivalent of a federal court system to handle law disputes. This means that the laws of the country in which the divorce takes place will apply. However, the specific country whose laws apply can vary depending on several factors, including the nationalities and residences of the divorcing spouses, and whether they agree on which country's laws they will follow.

The country where the divorce is filed

When it comes to filing for divorce, there are several factors to consider:

• Residency: You can file for divorce in a country where you or your spouse resides, provided you meet the minimum residency requirements. These requirements vary by country, with some requiring you to live there for at least six months or a year before filing.
• Nationality: If you or your spouse is a national of a particular country, you may be able to file for divorce there, even if you don't meet the residency requirements.
• Mutual consent: If you and your spouse agree to file for divorce jointly, you can choose the country where you will initiate the proceedings.
• Previous place of residence: If you and your spouse previously lived together in a different country, you may be able to file for divorce there, especially if one of you still resides there.

It's important to note that the choice of country for filing divorce can have significant implications. Different countries have different approaches to divorce, ranging from no-fault divorce to fault-based divorce. Additionally, there may be biases in certain countries regarding property settlements or child custody, favoring either the man or the woman. Seeking legal advice from a specialized lawyer is crucial to understanding your options and navigating the complexities of multinational divorce.

In the context of a multinational divorce, it is also essential to consider the recognition of the divorce in other countries. While a US state court judgment of divorce may be recognized overseas, it is not always the case. Similarly, foreign divorces may or may not be recognized in the United States, depending on the specific circumstances and the laws of the particular state.

The nationality of the spouses

In the context of the European Union, 17 countries have adopted a uniform set of rules to determine the applicable law in cross-border divorces. These countries include Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia, and Spain. In these countries, spouses can agree to apply the divorce laws of their country of common residence, last shared residence (if one spouse still lives there), shared nationality, or the country where the divorce is filed. If the spouses cannot agree, the courts will apply a set hierarchy of laws based on these factors.

In the United States, divorce is a matter of state law rather than federal law. Each state has its own requirements for residency and grounds for divorce. While all states recognize divorces granted by other states, specific questions about foreign divorces should be directed to the relevant state's Office of the Attorney General or a private attorney.

The recognition of foreign divorces can vary across different countries and jurisdictions. For example, a divorce obtained in an Islamic country through the "triple talaq" procedure, where the husband pronounces "talaq" (divorce) three times, may not be recognized in all countries due to its controversial nature. On the other hand, countries like the United States may recognize foreign divorces as long as both spouses had notice of the divorce and a chance to be heard in the process.

The country of the couple's last shared residence

When it comes to multinational divorce, the laws that apply can vary depending on several factors, including the country of the couple's last shared residence. Here are some key considerations regarding the country of the couple's last shared residence:

• The laws of the country where the couple last resided together will typically have jurisdiction over the divorce proceedings. This is especially true if one spouse still resides in that country.
• In the European Union, 17 countries have adopted a uniform set of rules, known as Brussels II, to determine which law should apply to cross-border divorces. These countries include Austria, Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia, and Spain.
• If the couple has different nationalities or lives in an EU country other than their own, the law governing their divorce may not be the same as the country where they file for divorce. It is essential to consult a specialised lawyer in such cases.
• In the United States, divorce is a matter of state law rather than federal law. Each state has its own requirements for residency before granting jurisdiction over a divorce.
• Some countries may have biases or different standards when it comes to property settlements or child custody arrangements, which can impact the outcome of the divorce.
• It is important to note that the recognition of foreign divorces can vary. For example, US states may consider whether both parties had notice of the divorce and the opportunity to be heard in the process.
• The country's last shared residence may have specific requirements or procedures for divorce that the couple must follow. These can include separation periods, mediation, or specific grounds for divorce.
• The validity of the marriage may also come into question, especially if one spouse remarries shortly after relocating to a different country.
• Language barriers and emigration struggles can further complicate multinational divorce proceedings.

The validity of the marriage

The validity of a marriage is a crucial aspect of divorce proceedings, especially in multinational divorces, where the laws of different countries come into play. Here are some key considerations regarding the validity of marriage in the context of multinational divorce:

Recognition of Foreign Marriages

The recognition of foreign marriages can vary depending on the country. Some countries, like the United States, may recognise a foreign marriage as valid as long as it was legally performed in the country where it was contracted. On the other hand, countries like Guam may have specific requirements, such as ensuring that prior divorces are finalised before recognising a new marriage. It's important to review the laws of the country in question to determine their stance on recognising foreign marriages.

Choice of Law

When it comes to multinational divorces, determining which country's laws apply can be complex. In general, the law of the country where the marriage was contracted often takes precedence. However, in some cases, the laws of the country where the spouses are habitually resident or have their domicile may also come into play. This can be particularly relevant when determining the validity of a marriage in a multinational context.

Cultural and Religious Considerations

In certain countries, cultural and religious norms can significantly impact the validity of a marriage. For example, in some Muslim-majority countries, the Islamic forms of divorce, such as "talaq" and "khula," may be recognised alongside or in place of civil divorce procedures. On the other hand, countries with a strong influence of the Catholic Church, like the Philippines, may prohibit divorce altogether, only allowing annulments.

Marital Status and Uniformity

To avoid "limping marriages," where an individual is considered married in one country but not in another, there is a growing trend towards international uniformity in defining marital status. Most states recognise the family as the fundamental unit of society and aim to protect the institution of marriage. As a result, they tend to uphold the validity of marriages entered into with a genuine commitment.

Biases and Protections

In some cases, biases may exist in favour of or against foreign marriages. For example, a country may have a bias towards protecting its citizens in divorce proceedings, which could impact the validity of a foreign marriage. On the other hand, certain countries may have protections in place to ensure that foreign marriages are treated fairly and equally under the law.

Documentation and Requirements

The validity of a marriage in a multinational context may also depend on the documentation and requirements fulfilled during the marriage process. This includes obtaining the necessary certificates, ensuring that the marriage is solemnised according to local laws, and meeting any residency or citizenship requirements specified by the country where the marriage is contracted.

The division of assets

Dividing assets during a divorce is a complex process, and it becomes even more challenging when dealing with multinational marriages. Here are some key considerations and steps to navigate the division of assets in this situation:

Understanding the Legal Landscape

The first step is to understand the laws of the countries involved. Divorce laws vary widely across the globe, and each country has its own set of regulations. Some countries treat foreign nationals like citizens regarding divorce proceedings, while others may be biased against non-citizens. It is crucial to research and understand the laws, residency requirements, and potential biases in the relevant countries.

Choosing the Applicable Law and Jurisdiction

If possible, agreeing on which country's laws will govern the divorce can help avoid potential complications. As divorce laws differ, this choice can significantly impact the division of assets. For example, some countries follow a community property system, where most property acquired during the marriage is held jointly and equally divided, while others follow an equitable distribution system, where property is divided fairly but not necessarily equally.

Identifying and Valuing Assets

Before initiating divorce proceedings, it is essential to document and value all assets, including those held overseas. This process can be challenging due to international privacy laws and the difficulty of assessing foreign-held assets. Foreign bank accounts, retirement accounts, and investment properties are common types of overseas assets that need to be addressed.

Negotiating and Settling

Whenever possible, it is advisable for spouses to negotiate and settle the division of assets without court intervention. This approach allows for more control over the process and can help reduce future conflict. Each spouse should disclose all assets, including any hidden or overseas assets, to ensure a fair division.

Working with Attorneys and the Court System

If an agreement cannot be reached, the court system will determine the division of assets according to the applicable laws. This process may involve litigation, especially if there are disputes over asset ownership or valuation. Working with qualified attorneys, especially those experienced in international divorce and high-asset cases, is crucial to protecting one's rights and interests.

Enforcing Asset Division Across Borders

Enforcing the division of foreign-held assets can be challenging. US divorce orders, for example, only apply to people and property within the US. For assets held in other countries, it may be necessary to work within the legal system of that country to ensure compliance with the divorce agreement or court order.

In summary, dividing assets in a multinational divorce requires a deep understanding of the relevant laws, careful identification and valuation of assets, and a willingness to negotiate fairly. Working with experienced legal professionals is essential to navigate the complexities and ensure a just outcome for all parties involved.

Frequently asked questions