When living in another country, you come to terms with the idea that its laws will apply to your everyday life. Protecting your children when divorcing abroad is vitally important. Many couples have their introduction to this by purchasing a property abroad, and having to abide by completely different sets of rules to their home country. The same goes for divorce: different countries have different laws and legal practices and couples may have different obligations arising from a divorce abroad. Protecting children in a “foreign” divorce is especially important – parents are often at a loss of what can be done.
The Court Procedure
Most courts – especially those in Western countries – will put the child’s safety as its top priority, and this is gone through on a case by case basis. The courts of the child’s “habitual residence” will be the ones that decide which parent the child will stay with. However – a legal vacuum is created when the couple doesn’t have access to local courts because they are not citizens of that country. Waiting times can be years long for a hearing in a local continental court, so couples may look to seek temporary permission for one of the parents, with children, to leave the country until the final hearing.
Prepare everything for the courts
With so many countries having a different approach to divorce and different levels of citizenship needed to successfully file for divorce, it’s imperative that you prepare your case as thoroughly as possible. One of the first things to do will be to search for a reputable local lawyer well practiced in international family law – your local embassy or consulate should be able to aid you in finding the best lawyer for your case. By and large, international marriages can be recognised in English law, and therefore divorce may be recognised too. This is vital as recognition can affect the nationality and the status of children.
Be careful with international travel
Fleeing with your children won’t help your case, or your spouse’s. You could be legally obligated to return to the country in which the family had been living in previously – and this could be counted as child abduction, which certainly wouldn’t help your custody case. (Child Arrangement Orders stating with whom a child shall live, do not restrict international travel and will not legally prevent your children crossing into other countries with you).
Cross-border separations are also significant and must be addressed immediately. If your partner flees with your children, the first few hours are vital. Courts mayrule that a major time delay is too long and won’t be able to take action for you.
Check and protect your assets
Looking out for your children now is all well and good, but you’re also setting them up for their futures. With this in mind, guard and secure your assets. Anything held in joint accounts should be protected, especially your liquid assets, as it may be some time before you can sell stocks, shares or capital, and you still have to put food on the table.
The “Worldwide Mareva” or a ‘freezing injunction’ is an injunction that places severe legal restrictions on a party’s financial transactions and should be used if you suspect your partner may be trying to hide assets. Forensic accountants can also help to demystify asset trails and ensure wealthier partners don’t hide their money in tax havens.
Divorce is an upsetting time for parents and children alike – keeping calm sets a fantastic example to your children but also avoids having to pay out for the consequences of any erratic behaviour (like running off with the family cash or intentionally destroying property).