This article was originally published in The XPat Journal Autumn 2018 Issue
By Edith van Ruitenbeek
Family Law for Expats
Living an expat life can be exciting, but also very challenging – especially as far as family matters are concerned. Divorce rates, for instance, are higher than average among expats.
Last summer, I once again went through a marathon of mediation sessions with an expat couple. The goal was to reach a divorce agreement and, even more important, a parenting plan before the school year started. This was because one of the spouses had been assigned a new posting in the US, while the other did not want to leave Holland. A joint petition for divorce was filed in August in the Netherlands, in order to prevent further escalation and further proceedings in the US.
Many spouses who are facing a divorce are not aware of the fact that divorce proceedings can be initiated in more than one country. And, that it is therefore important to obtain sound professional advice on which country is preferred, since there is no single answer to the question of “which is the best”.
The first consideration should be, of course: Can the divorce can be arranged by the spouses through mediation, in a collaborative divorce setting, or with help from their lawyers. The advantage to this is that it enables the Dutch courts to facilitate a quick divorce, when the spouses have signed a divorce covenant. If it is not likely that a divorce covenant or any other agreement will be reached, the next important step is to determine:
- Which courts have jurisdiction
- Which national laws these courts might apply
- Which national laws these courts are obliged to apply
Here are a few examples:
I am a family lawyer with an international practice. I advise my clients that it might be preferable to initiate proceedings in the Netherlands when, for instance, time is an issue. In some other countries, such as the USA, Germany or Switzerland, spouses have to wait one year (after separation) before they can start divorce proceedings.
Another reason to opt for a Dutch court is that this makes it possible to apply Dutch law to the proceedings. Dutch courts do not ‘assign blame’ or consider other relevant penalties. This means that you only have to state that a marriage has irretrievably broken down, in order to be granted a divorce. It is also worthwhile examining which of the courts that has jurisdiction regarding your divorce can apply its own law regarding spousal alimony. Don’t forget that both parties can go forum shopping!
Once the forum has been agreed upon, the divorce petition should be filed as soon as possible with the preferred court, should an amicable divorce not be possible. When a petition is pending, any other court that is approached later, will have to abstain from dealing with the case.
As a lawyer specialized in international family law, I always try to encourage my new divorce clients, especially expat clients, to consider divorce as a transition. Both must move from married life into life after marriage. I also point out how important it is to try to settle the consequences of divorce, especially when there are children involved.
To achieve a liveable life after divorce, I often suggest mediation. Disputes between spouses in divorce are quite often suited to a mediation approach. The key asset of mediation is that parties achieve a solution together. This increases the commitment to, and acceptance of, the solution and the sustainability of the divorce agreement. This is especially important for my expat clients, as their divorce agreements are more likely to be challenged by changing circumstances in the future.
Sometimes mediation is not an option. For instance too great a difference in skills and knowledge between the spouses, can create an imbalance too vast to mediate. In this case, a collaborative divorce setting might be a viable alternative. With collaborative divorce, both parties choose their own lawyer to advocate their own personal interests, as well as their common interests. A coach with a psychological background structures the process. They will point out, in as early a phase as possible, problems concerning children. They will also endeavour to guide the parents towards a solution. The common goal of this fiver-person team is to reach the most optimal solution possible, for both partners. In financially-complex cases, the services of an independent financial and/or international tax advisor can also be employed.
The Backyard is a Jungle!
We do realize that international family law can seem like a jungle to our expat clients, despite the efforts that have been made to unify conventions and EU regulations. Even between EU countries there remain remarkable differences in rules and legislation. These do not only regard divorce, but also children born out of an international relationship, or instances when the applicable matrimonial law is in conflict with the applicable law of succession. This is often an issue when it comes to real estate in different countries.
It is important to be aware of this jungle, as an expat. We gladly offer you our expertise.
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