INTERNATIONAL DIVORCE

Lire cette page en français

Brussels II bis

The first question, sometimes the most important one, in an international divorce is where? Within the European Union, the solution is simple enough: Regulation Brussels II bis states that the courts of country where the divorce is first commenced hear the case. The legal consequences could not be more crucial.

For instance, until the recent Radmacher v. Granatino case, English courts did not recognize prenuptial agreements, including foreign ones, as legally binding contracts. This meant that the contrat de mariage of a French couple settled in London might not be worth the paper it was written upon. The less wealthy spouse only had to win the race to the courthouse and file for divorce in England one day before the other spouse rushed to the Eurostar to file in Paris.

Note that a prenuptial agreement is still not strictly binding in England, though it may be upheld if the court finds it fair. In long-term marriages, the prenuptial agreement is less likely to be deemed fair and more likely to be set aside. This a far cry from France or California, where courts have no such leeway.

On another topic, French law (not always friendly to spousal rights) does not allow spousal support after a divorce. The less wealthy spouse may only receive a prestation compensatoire, a lump sum payment generally equivalent to 10 to 15% of the difference between the spouses’ respective net worth.

Rome III

The “race to the courthoouse” scenario has been somewhat tempered by Regulation Rome III, at least for the countries that have adopted it (to date, Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.) Rome III allows spouses of different nationalities, or not residing in their country or countries of nationality, to choose the law applicable to their divorce.  if they cannot agree on this point, not a rare occurrence in a divorce, Rome III determines the applicable law depending on the residence and nationality of the spouses.

However, Rome III does not apply to countries that have not ratified the Regulation, in particular the United Kingdom.

Millions of euros, or pounds, or dollars may ride on the sole issues of jurisdiction and choice of law. This is no legal field for the unwary.