International Divorce UK covers the practical implications of succeeding in having a divorce petition heard in one jurisdiction rather than another?
Well, of course this rather depends on which jurisdictions we are comparing. Here we take a very brief look some major variations on how the law operates with regard to divorce proceedings in the UK and Spain.
Marriage Classification in Spain
In Spain distinctions are made between different ‘types’ or regimes of marriage which have different financial ramifications in the event of a divorce. First are those marriages referred to as being subject to a ‘sociedad de gananciales’ which most equates to what we would consider typical in Anglo-Saxon marriage arrangements.
Secondly there are ‘separación de bienes’ which signifies an intention on the part of the spouses to maintain a separation in the ownership of assets throughout the marriage.
The effect of the above is that in a ‘sociedad de gananciales’ matrimonial arrangement, all goods, assets and benefits (except so-called ‘private’ goods) derived during the marriage, regardless by which spouse, are considered to belong to both spouses equally and which are, upon a divorce, divided equally.
Examples of such ‘goods, assets and benefits’ would be a person’s salary or benefits of a business owned by one of the spouses.
Conversely where the regime is considered to be ‘separación de bienes’ then any assets accumulated during the marriage are considered to belong to one or other of the spouses in the proportion in which their funds contributed to the purchase.
It may be added that domestic labour in the home is considered quantifiable under this arrangement and can therefore be used to measure contribution towards marital assets.
Even within the ‘sociedad de gananciales’ regime certain assets are considered ‘private’ and would not be considered as divisible between the spouses upon a divorce.
An example would be an inheritance left to one of the spouses specifically. Also, any assets obtained before the marriage remain distinct from the matrimonial ‘pot’ and never form part of the matrimonial assets.
So, when comparing the UK system with the ‘sociedad de gananciales’ it would appear that the Spanish system would have a narrower interpretation of what constitutes ‘marital assets’ as it allows for ‘private assets’
The system of ‘separación de bienes’ provides an even narrower interpretation by assigning ownership of assets to one spouse or the other depending on contribution, though there is the proviso that the contribution of a spouse who works in the home can consider this a contribution to be compensated for.
Spousal Maintenance Payments
The courts in England & Wales are world renowned as being more generous to the spouse with fewer assets.
The reason is that maintenance payments there tend to be open-ended with the objective being to put the couple in the place they would be if there had been no dissolution of the marriage whereas in Spain the objective is to return the spouses to the position they were in before the marriage took place.
This can often mean that in England & Wales the spouse with less assets or income can obtain 50% or more of the wealth of the richer of the two as well as a percentage of all future income. In Scotland maintenance payments are normally restricted to three years from the time of the divorce.
When a divorce process is initiated one important aspect can often be the obtaining of a precise inventory of the assets owned by the other spouse – for obvious reasons.
It may be that this spouse would resent the obligation to hand-over such information and adopts delaying tactics or simply offers incorrect or incomplete information.
In England and Wales there is a “full and frank” financial disclosure requirement that unless respected by each party can result in prosecution for perjury. In Spain there would appear to be less stringent enforcement of the requirement to effect a full financial disclosure of assets and this can obviously impact strongly on the award of any compensatory payments.
Choice of Laws
It should be noted that according to Art. 107 of the Spanish Civil Code, where both spouses have a common nationality then this should be the law applied to the proceedings.
So an English couple could apply for a divorce in Spain and, while being heard by a Spanish court, have English law applied. Alternatively, they could decide to simply apply Spanish law where both parties agree.
Therefore, while the English couple both live in Spain, it remains an option to choose to have English family law applied to their proceedings. It should be noted that this can result in an increase of costs due to the need to provide the court with briefs on English law fully translated etc.
Which legal jurisdiction applies?
European Regulation 2201/2003 sets out the rules that determine which country has jurisdiction to hear and determine a divorce case which is any country where:
- the spouses are habitually resident, or
- the spouses were last habitually resident, and one still resides there, or
- the respondent is habitually resident, or
- in the event of a joint application, either of the spouses is habitually resident, or
- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the UK and Ireland, has his or her “domicile” there, or
- Both spouses are domiciled
As can be seen from these rules a divorce petition may be considered to be filed correctly in more than one jurisdiction. Where a petition for divorce is petitioned in more than one country then the ‘first-past-the-post’ principle applies which has of course permitted the practice of “forum shopping” to flourish. Forum shopping is where a spouse will seek to file for divorce in the jurisdiction that offers them more advantageous laws than their partner.
Conclusion to International Divorce UK
While only offering an overview the previous paragraphs serve to illustrate that the location chosen to file divorce proceedings can have a significant effect on certain aspects of the divorce settlement.
Following the European Regulation on the matter, it is potentially open to a spouse who is domiciled in the UK to file a divorce petition if they return there for a period of six months even though they had married in Spain and lived a number of years there.
It may certainly be in their financial interest to do so where they own less assets or have a substantially lower income than their spouse. Speak to a divorce lawyer in Spain for more information on this topic.