Foreign Divorces and Children

Getting Divorced Abroad

With many couples marrying citizens from other countries and possibly living in several countries through the marriage choice of where to divorce will be an important decision.

Most countries allow those who are “ordinarily” or “habitually” resident in a country for twelve months to apply to the courts of that country for a divorce. The twelve months may only be six months if one spouse is a citizen of the country. In some cases there are two or more countries where an application for divorce could be made. In those cases careful consideration needs to be given to choice of jurisdiction. Is the legal regime in one country more supportive or less supportive of claims by a dependent spouse for financial relief? How effective will any court order obtained be? Where are the bulk of the financial assets located? Where does the family live? What is likely outcome? What are the legal costs involved?

Often the spouse who makes the decision to end the marriage is way ahead of the other in considering these factors and will do so to his/her own advantage. There can be cases where applications for divorce are made in two countries at the same time. Under the EU regulation it is the divorce that is first in time (i.e. issued first and served) that will prevail. The application in the other country must be stayed.

It is for this reason that a speedy issue of a divorce application may be necessary to secure the hearing in the country that best suits a client’s needs. Outside the EU, the first in time rule does not prevail, other considerations like the location of the assets and convenience of the parties will be taken into account.

Muriel is a Fellow of the International Academy of Family Lawyers (IAFL) and well versed in all these situations and can guide and advise.

Children in International Cases

Children cannot be removed from their country of habitual residence without the prior consent (preferably in writing) of the other parent. A parent who removes a child to another country or retains a child in another country is subject to the rules set out in the Hague Convention on child abduction to which most countries in the world are signatories to but with notable exceptions.

So a mother from USA living in Ireland for many years with her children cannot take them back to US or retain them there if they went on holidays without the consent of the other parent. Each country has a Central Authority which will assist the parent whose children have been taken to have them immediately returned to their country of habitual residence and it is for the courts there to decide what is best for those children.