Cross-continent resolutions: international divorce

00:00:06 David Lee, Host

Hello and welcome to Podcasts by Brodies. I'm your host, David Lee, and in this episode, we're looking at finding resolutions across continents for couples going through an international divorce. I'm joined by two experts in family law from Brodies. Jacqueline Stroud is based in Edinburgh and is a highly experienced mediator and litigator. Susie Mountain is based in Aberdeen and is an experienced negotiator, solicitor advocate and a trained collaborative lawyer. Welcome to you both.

Starting with you Jackie, how common is it for divorces to take place where one person lives abroad or has overseas connections? Does this make divorce more complicated?

00:00:50 Jacqueline Stroud, Partner

Thank you, David. Over the past 20-30 years, international divorces have become increasingly common. It's probably trite to say that the world's getting a smaller place, but with mobility of labour, more and more we see an international element to divorces. Many of our clients live abroad and are expats. Susie, as you've already said, is based in our Aberdeen office where one of the predominant industries is of course the oil industry. Therefore, Susie has a huge amount of experience in international work with people moving from one country and indeed one continent to another. So, there's almost no country in the world that we haven't had a divorce that has an international aspect. I don't want to major on internet dating, but I think that had a part to play and perhaps the lesson is keep your Tinder range quite narrow because undoubtedly a divorce with an international element is more complicated.

00:02:07 David Lee, Host

Just for avoidance of doubt there Jackie, when you talk about keeping your Tinder range narrow, you're talking geographically in this case?

00:02:15 Jacqueline Stroud, Partner

Yes, absolutely.

00:02:10 David Lee, Host

Thanks very much. Coming to you Susie, what are the main factors for parties to consider in the circumstances of an international divorce?

00:02:19 Susie Mountain, Partner

I think it's fair to say that any separation is very difficult for those involved and it can be a worrying enough time even when there are no jurisdictional implications but where there is an international element the process can be more daunting.

We would always encourage people to seek legal advice at the early stage as that can help you to feel more in control and to work out the best way forward. One really key thing with an international separation especially if you are overseas and planning to return to the UK is to ensure that you have all of your paperwork, one thing that I have found when dealing with these cases is that trying to get hold of a marriage certificate or a birth certificate which has been obtained out with the UK can be really difficult and we do need those if we are going to make any kind of court application.

00:03:04 David Lee, Host

Thanks very much, Susie.

Jackie, where we do have parties in different jurisdictions, how does one of those parties who wants a divorce to decide where to raise proceedings? What are the main considerations about where divorce proceedings will be raised?

00:03:25 Jacqueline Stroud, Partner

Quite often, David, you have no choice as to which country has jurisdiction, and that will depend upon the rules applying to jurisdiction. But in some circumstances, there is a choice to be made and what is beneficial for one party may not be beneficial for the other party.

In Scotland, for example, we have a reputation of being quite mean to the financially disadvantaged spouse, whereas England has a reputation of great generosity, so it may be that it's in one party's interest to raise in England and the other parties interest to raise in Scotland, so occasionally you can have a race for jurisdiction and it's about who raises the proceedings first.

There's a very complex set of rules in relation to jurisdiction, and I'd just echo what Susie said right at the beginning, that it's important to get good legal advice right at the outset. We're talking about raising court proceedings, but actually court proceedings tend to be a last resort and as a committed mediator, you would always be trying to sort things out amicably. If there is no choice and you must go to court, you would be looking at the cost of raising in different jurisdictions. You might also consider the time that it will take to resolve matters, and you quite often would have advice from lawyers in two different jurisdictions as to which jurisdiction is likely to have the most favourable outcome for you.

00:05:13 David Lee, Host

Thanks very much. Jackie has touched on this a bit already, Susie, but what can Brodies and the legal firm involved do to weigh up the pros and cons of where proceedings will take place? Are there other experts from other fields involved in that?

00:05:30 Susie Mountain, Partner

I think increasingly we are working with experts in different countries and different types of experts in different places. What we would always do is assess the situation and of course, we at Brodies are only advising on Scots law. So, what we can do is help to give somebody an overview of how Scots law would apply to their situation.

If there is the possibility of another country having jurisdiction to deal with a separation matter, we would investigate any likely jurisdictions that might be able to deal with the matter, and we would use our networks that we have to find legal advice for our clients in those other jurisdictions so that they can really help to weigh up the pros and cons.

00:06:15 David Lee, Host

What about reciprocal agreements, Jackie, do most countries recognise judgments made about divorce in other countries?

00:06:25 Jacqueline Stroud, Partner

The rules in that regard vary from country to country, but generally the answer to that is yes, but there's usually a process whereby you register the judgement made in one country in another country to enable you to enforce it in that country.

For example, in Scotland we wouldn't recognise a foreign judgement without it being formally registered and that's another factor that you would consider when choosing your jurisdiction, because obviously that would add a layer of cost.

00:07:00 David Lee, Host

Thanks very much. We often hear in divorce cases, Susie about fault or no fault divorce, and does the approach to that vary across different jurisdictions and does it vary widely?

00:07:12 Susie Mountain, Partner

Yes, it can do, and I think that's the key thing about anything internationally is to bear in mind that every different country will have a slightly different way or at times a very large, significantly different way of dealing with separation situations.

Under Scots law, the basis for a divorce is the irretrievable breakdown. We have different ways that we can establish that. So, there are no fault type reasons so parties can divorce after a year if the other party consents, or two years if the other one doesn't, but often if we need to take things into court more swiftly and there is no agreement in relation to financial matters, then at the moment it's still necessary to blame the other party for the breakdown if we're looking at a divorce or dissolution situation. Some countries are moving away from that in England they have the introduction of the no fault divorce and other countries have that same system, but it really is different and wherever you go in the world, and you can't assume that all countries are going to follow the same pattern.

00:08:14 David Lee, Host

Does that add an extra layer of complication when you are dealing with international divorce soon?

00:08:20 Susie Mountain, Partner

Yes, it can do and even the timing in which things are dealt with. So, I understand for example, I'm not an English lawyer, but in England you would divorce first and then you have a period in which the finances would be sorted out thereafter. In Scotland, we try to tie up our finances first and what would ordinarily happen is that financial orders would only be made at the point of divorce so that it’s all dealt with at the same time. People might get divorced somewhere else and assume that they're still going to be able to come back to Scotland and deal with their finances and that may or may not always be the case.

00:08:50 David Lee, Host

That's interesting. Let's talk a little bit, Jackie, about cohabitation as well. So, when we've got a separation where a couple have been cohabiting but not married. Is that more complex when we are dealing with different jurisdictions and when we're dealing with an international separation?

00:09:11 Jacqueline Stroud, Partner

Interestingly, David, the vast majority of jurisdictions don't recognise cohabitation. I would say this because I'm a Scottish lawyer, but I think we can be proud of the way that Scotland deals with cohabitation. We're at the forefront in that regard. There's very specific legislative provision for cohabitants to make claims. It's important to note that those claims can be time barred, but we're miles ahead of England in that regard.

There's been discussion for years in England about them falling in line with how we deal with cohabitation in Scotland, but yet that hasn't happened, and we have to remember the cultural differences in different continents, in many places, same-sex relationships are illegal or cohabitation between unmarried couples is also illegal. So, absolutely in many jurisdictions there is no legal framework to deal with claims in that regard, contrary to public belief, Susie is an absolute expert on these matters, and I'm sure she'll have things to add. Susie's written a book on these matters. So, I'll defer to her in this regard.

00:10:32 Susie Mountain, Partner

I think the only thing I wanted to add there is that quite unusually are the rights that we give cohabitants in Scotland, there is provision for a claim to be made under Scots law, even if the parties aren't living in Scotland. So, a cohabitant who separated or if the cohabitant has died provided that either the deceased was Scottish domiciled or one of the parties to the separation with Scottish domiciled, which differs from where they live. It's about sort of their origin and what connection they have to the country. They may still be able to make a claim even if they've been living elsewhere. So, I think that's something that people don't often know about that really could be better publicised.

00:11:11 David Lee, Host

Just more generally, Susie, you know Jackie has touched on cultural considerations. It's something that comes up quite often in Podcasts by Brodies, where there's any kind of international dimension. What are some of the major cultural considerations that might need to be considered by yourselves when dealing with these kinds of issues.?

00:11:36 Susie Mountain, Partner

There are so many things but the criminalisation of same-sex relationships, faith and religion, and how that impacts on the law in any country, and as Jackie said, the fact that certain relationships will not be recognised.

For example, same sex marriage or civil partnerships may not be recognised in certain countries. You might not be able to enter into them in certain countries and equally cohabiting relationships there may be fewer rights than there might be in in Scotland. It's very important to try to get advice if you're moving to a different country or your relationship has an international dimension, just to make sure that you keep on the right side of the law and don't get yourself into any difficulties.

00:12:20 David Lee, Host

Jackie, we have seen obviously a move of global power, if you like, to the Middle Eastern countries and I'm guessing there's quite a number of relationships where one of the parties is spending time in the Middle Eastern countries, particularly around kind of Dubai and Qatar and places like that.

How might the views towards the right after a divorce differ in those kinds of jurisdictions, for example?

00:12:49 Jacqueline Stroud, Partner

It probably won't surprise you, David, to hear that there the cultural differences mean that the approaches are very, very different. For example, in Dubai it's presumed that a male child up to the age of 11 will reside with his mother and that a female child up to the age of 13 will reside with their mother, but thereafter, what the legislation provides is that the expectation is that they then automatically go and live with their father. It's interesting when we talk about family law because it's where law and culture overlaps and we talk about the cultural differences between countries and in Dubai in particular the legislation provides that the mother is the person who provides the care for the child, whereas the father has the control, if that's the right word, and is able to make decisions whereas the mother does the day-to-day physical care. I think the legislation also provides that the mother must be free of any infectious diseases if she's to care for the child and provides that the mother, a separated mother, cannot remarry if they're caring for a child without the consent of the court.

I see that Japan has been in news recently because their default position is that the mother cares for the child and the father typically has been allowed contact for perhaps one day a month. I understand that law has been in force for many decades and they're at last looking at revisiting that and looking at a more shared care arrangements. So, between jurisdictions, there can be massively different ways of dealing with things. There's quite often a perception that in Scotland that childcare is divided equally, that's not quite right, what happens is the court has to have regard to what's in the best interests of the child when making any decision and that's very different to a situation where it's quite prescriptive as to what happens at a particular age and stage of a child, so different, and interesting approaches.

00:15:12 David Lee, Host

Thanks Jackie, that is interesting. Susie, there's a lot of cultural considerations here, we've talked a little bit already about where proceedings are raised and a phrase we often hear in context like this is forum shopping, what do we mean by forum shopping and is there always an option as to where you go to?

00:15:32 Susie Mountain, Partner

Forum shopping is about selecting to deal with the matters in a court that you think is going to give you the most favourable outcome that would be the point of forum shopping. Perhaps not even always the most favourable outcome, but it might be the court that will deal with matters the swiftest which can often be a consideration for people or there might be some other reason like cost that means that they decide one place is preferable in terms of dealing with matters.

For most people, you can't just look around the world and think that country suits me best. So, generally you'd have to be able to establish jurisdiction for that country to deal with your divorce, if that's what it is, your dissolution, whatever type of action that it is. Usually that would be based upon your connection to that country. So, either there be provisions about how long you have had to live in that country or whether you were born there and your domicile but for every country, those jurisdictional requirements would need to be checked because it will be different in different places.

If I have a client who comes in and says, I’ve been working in Germany for the last three years, I say well, you may or may not have jurisdiction to deal with matters in Germany, you may or may not have jurisdiction to deal with matters here, and we would need to really go into the background and get into the nitty gritty of what's been going on in their lives so that we can work out which country would have jurisdiction and if there is a choice of two, then we might have discussion with a German lawyer and tried to work out which of those jurisdictions would be the best one.

00:16:59 David Lee, Host

Thanks very much. Jackie, we've touched a little bit on finances and assets already but just to talk a little bit more about that. What are the issues that need to be considered if a divorcing couples' assets are held in more than one or in multiple countries?

00:17:17 Jacqueline Stroud, Partner

What you must consider is thinking about where you're going to raise the proceedings. Some of the things that can impact upon that are where the assets are located, there can be real complications. For example, if the divorce is being dealt with in Scotland, but there are properties abroad, you have to be sure that you know how you're going to deal with that transfer of property because it can't be dealt with in Scotland. It will have to be dealt with by lawyers in that jurisdiction. We very frequently deal with pensions, that's often one of the biggest assets, and if there are pensions abroad, there are complications in enforcing pension sharing orders from country to country.

00:18:07 David Lee, Host

In another episode of this podcast series, we talk about supporting children through divorce in some detail, but we're going to talk a little bit about children in the context of international divorce here specifically. Are the views of children of a divorcing couple, Susie, given equal weight in different international jurisdictions?

00:18:30 Susie Mountain, Partner

I think the short answer to that is no. Again, I think in Scotland we're quite ahead of the game on this and we try as it is practical to give every child the right to have their views expressed by a means which is appropriate to that child depending on their age.

This means that even very young children are now having their views taken, now it doesn't mean that those views will be followed, but sometimes it can be persuasive. It's not binding on the court, but certainly that is something that we do. Jackie was mentioning to me earlier that that's something that in her role is child welfare reporter that she is doing quite regularly.

00:19:05 Jacqueline Stroud, Partner

Yes, that's right. It's been interesting over recent years that younger and younger children are being spoken to. So, in the last year I've been into nurseries to speak to four or five-year-olds about their views. At that age, their views are not usually determinative, but it's a factor to be considered. Again, I would agree with Susie, I think in Scotland we're ahead of the curve in that regard and if a 12, 13 or 14-year-old has really strong views then in Scotland those will be listened to.

00:19:40 David Lee, Host

Thank you and a fairly obvious question I suspect, Jackie, is if a divorce goes ahead where couples are in different jurisdictions, how is contact with children affected when those parties are apart, one lives abroad and ones may be here in Scotland?

00:20:00 Jacqueline Stroud, Partner

Those are some of the most difficult cases that we ever deal with. There's the obvious practical difficulty, you can't have someone for dinner after school if they're in a different continent. Obviously, there are the practical difficulties, you can't have a shared care arrangement when you're living in different countries.

We quite often get into discussions about the travel arrangements, at what age it's appropriate for a child to travel unaccompanied and of course, the cost of international travel, particularly with a young child, because a parent would have to fly with them, and they wouldn't be expected to travel alone. So obviously they these are some of the saddest cases where families are divided and not in the same country or even the same continent.

00:20:53 David Lee, Host

Taking that one stage further, Susie, what about where there's been such an irrevocable breakdown that one party removes a child or children without the consent of the other party? What might happen in those circumstances?

00:21:10 Susie Mountain, Partner

I think, as Jackie said, these are really some of the saddest cases. Luckily, it is quite rare for that to happen, and it makes up a proportion of our work, but it's not something that happens often. I think that's probably some of the biggest worries that people have if they do have a relationship with an international element and there's a fear that a child might be taking overseas.

Now neither parent is supposed to remove the child out with the UK without the consent of the other. So, if a threat is made as to that there are steps that we can take, such as putting interdicts in place to prevent the removal of the child and if a child is removed to a Hague Convention country, so a country that's a signatory to the convention, then there is a process in place between Hague convention countries in terms of which, subject to certain caveats and certain defences which could be put in place, but the child ought to be returned, and that is quite a swift process, they should be returned to the country of their habitual residence. That really should take place within around a six-week period beginning to end. It's a very, very speedy process.

It's much more of a worry when a child's removed to a non-Hague convention country because we could be a wee bit less sure about the law that would be applied in the other country and that's where we would need to utilise our international contacts to try to ensure that we can do everything we can to protect the child's interests.

00:22:30 David Lee, Host

Thanks very much. Just move into a conclusion, I'm going to ask both of you, you touched a little bit on this at the start. From Brodies perspective, maybe anyone who's caught up in a situation like this in an international divorce, what are the key things they should take away from this podcast to make that process as smooth and painless as possible, Jackie?

00:22:58 Jacqueline Stroud, Partner

I would say get legal advice as soon as possible. I can't pretend that an international element in a divorce doesn't make things more complicated, but getting good legal advice at an early stage is absolutely crucial, more so than in non-international divorces. We have a network of other lawyers across Europe and the rest of the world, and we will work with them and identify who would be the best person if advice is needed in another jurisdiction. So, I think my top tip is get good legal advice as quickly as you can.

00:23:37 David Lee, Host

Susie, a final word from you.

00:23:40 Susie Mountain, Partner

I think the two things I would say are first of all, don't panic, just because there is an international dimension does not mean that it has to go to court. There are usually all kinds of ways that we can deal with these matters, and court really is a last resort and that remains the case for international cases and get your paper record order. I've lost track of the number of marriage certificates that I have had to try to obtain from different places around the world, and if people could just get one from the outset and keep it somewhere safe, that would make life a lot easier.

00:24:10 David Lee, Host

Thank you very much indeed to Jackie Stroud and to Susie Mountain for your terrific insights today.

You've been listening to the latest episode of Podcasts by Brodies, where some of the country's leading lawyers and special guests share their Enlightened Thinking about major issues and developments in the legal sector, and what that means for organisations, businesses and individuals across the economy and wider society.

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