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Clients anticipating or in the process of divorce typically seek guidance from their current professional advisors. Increasingly, divorces involve individuals, structures and/or assets outside clients’ home countries. Unwinding cross-border marriages, however, presents many challenges, ranging from choice of jurisdiction to spousal maintenance, property division and enforcement of court orders. Let’s explore these and other key issues that advisors need to be aware of. Child custody, while also typically an important concern during divorce proceedings, is beyond the scope of this article, as are pre- and post-nuptial agreements.
The number of people living outside their countries of birth continues to increase,1 with a concurrent growth in the number of transnational marriages.2 The U.S. Bureau of Labor estimates that over 46 million U.S. residents are foreign born,3 and a recent census indicates that approximately 21% of married couples have at least one foreign born spouse.4 The growth in transnational marriages is leading to an increase in the number of cross-border divorces.
Choice of Jurisdiction
Forum shopping, or the practice of locating the most advantageous jurisdiction to pursue a legal action, isn’t uncommon in divorce cases in the United States. However, the choice of divorce jurisdiction is particularly critical for couples with connections to multiple countries. With greater disparity in the marital dissolution laws and practices of family courts in different countries, there’s often more at stake, particularly when significant wealth is involved.
There’s no universal law governing the division of assets, spousal support or any other aspect of the divorce process. The Hague Convention on the Recognition of Divorces and Legal Separation5 has been signed by only 20 countries.6 The Brussels II7 and Rome III8 Regulations, which attempt to harmonize divorce laws and determine which law governs, apply only to states in the European Union. Post-Brexit, these regulations no longer apply in the United Kingdom, leading to considerable challenges9 given London’s popularity for divorces involving multinational married couples.
There are many financial and non-financial reasons why one spouse may favor a particular country over another. The most compelling is typically the historical outcomes regarding spousal maintenance and property divisions in earlier divorce cases. English courts have long been generous to less wealthy spouses (who have often been wives), giving rise to London being called the “divorce capital of the world.” This jurisdiction choice has been further fueled by some high profile cross-border divorces, such as that of Christina Estrada, who obtained a £75 million settlement in her divorce from her Saudi ex-spouse Sheikh Walid Juffali in 2016.10
Other venue considerations include the historical speed of the divorce process, effects of uncooperative spouses’ conduct during open cases, privacy and the required grounds for granting a divorce. Not all countries have no-fault divorces; in fact, until the U.K. Divorce, Dissolution and Separation Act 202011 became law on April 6, 2022, to get an English divorce required placing blame, assigning a specific “reason” for the irretrievable breakdown of the marriage and/or living apart for multiple years.
While divorcing spouses would like to be able to choose whatever country they believe will give them the best result, they must have at least some connection to a jurisdiction to get a legal marital dissolution there. The most common criteria for jurisdictions are citizenship, residency and common law domicile. For instance, the United Kingdom requires one spouse to be either a habitual resident (bright-line test based on facts and circumstances) or a resident and domiciliary (based on intent).
Because the determination of domicile is subjective, legal outcomes vary significantly, leading to some seemingly contradictory results. In 2019, in Pierberg v. Pierberg12 a U.K. judge denied the wife an English venue based on her lack of sufficient residency or domicile, while in 2020, in Villiers v. Villiers13 the U.K. Supreme Court allowed the wife to bring a claim in England despite a separate divorce proceeding filed in Scotland, where the couple had lived throughout their marriage.
Jurisdictional issues continue to evolve as countries change their laws and update their judicial systems. In AZS And Another v. AZR,14 the Singapore High Court agreed with the husband that France was the appropriate venue for the divorce, although the wife had begun proceedings in Singapore. In this case, the decision seems to have been influenced by the couple’s prenuptial agreement, which referred to the French Civil Code.
The recent creation of special courts in Dubai and Abu Dhabi for non-Muslims offers an alternative for the many expatriates living there. Depending on a couple’s financial and personal situation, these options could be a blessing or a curse for either spouse. In FA v. SA,15 the availability of the non-Muslim court in Abu Dhabi frustrated the wife’s attempt to have divorce proceedings in England. The husband had begun the divorce in Abu Dhabi. The U.K. judge concurred that this was the correct jurisdiction given the couple’s long residency in the United Arab Emirates (UAE), noting that he was comfortable that the wife wouldn’t incur any “substantial injustice” under the UAE court.
Maintenance
Maintenance refers to court-ordered periodic financial support from one ex-spouse to the other ex-spouse after the divorce. It’s also called “spousal support,” and in the United States, it’s typically known as “alimony.”
Philosophies and practices regarding maintenance vary widely among jurisdictions. Historically, courts leaned towards providing for the long-term preservation of the standard of living for both spouses. This was particularly prevalent in the United Kingdom and countries with English roots.16 Recent trends, however, favor purely restorative spousal support, with the objective of helping poorer spouses reach their own financial independence as soon as possible, which may result in a lesser lifestyle than during the marriage.
This trend is evidenced by landmark cases such as the acrimonious battle between former Minister of the Economy and Finance for Italy, Vittorio Grilli, and his then-wife, American business woman Lisa Lowenstein, in which an Italian court ruled that former spouses don’t have the automatic right to permanent maintenance payments.17 In the English divorce case of Waggott v Waggott,18 the judge noted that the property settlement provided the wife with sufficient resources to maintain her lifestyle, and so she shouldn’t share in her husband’s future earnings capacity. The comment that a maintenance award shouldn’t be a “meal ticket for life” was often quoted in later divorce proceedings in the United Kingdom.
Despite some global trends, there remain significant differences among countries regarding the purpose and process of providing spousal maintenance. Ongoing attempts to harmonize laws around the world include the 2007 Hague Convention protocol on maintenance obligations,19 to which 42 countries (including the United States and all EU members except Denmark) are currently signatories.
Pension Income
Pension income is particularly challenging in the cross-border context, be it navigating the tax complexities for those working abroad or representing divorcing spouses with pensions from “foreign” sources. As in most domestic divorces, there’s the problem of accounting for future taxes associated with anticipated pension distributions.
Further, courts in one country may not recognize foreign court orders. Switzerland requires ancillary divorce proceedings to address pension arrangements, and the United Kingdom doesn’t give comity to non-U.K. court orders.20 In addition, countries’ own laws may block their courts’ jurisdiction over pensions held abroad. This situation occurred in Goyal v. Goyal,21 in which the U.K. Matrimonial Causes Act 1973 didn’t permit an English divorce court to apply their usual pension-sharing order over the husband’s pension in India.
As with pensions in a domestic divorce, it’s often simpler to award the entire future pension payments to the plan participant spouse and make up the difference with other assets to the other spouse.
Property Settlements
Dividing marital assets between spouses poses particular challenges in a cross-border divorce. This analysis starts with the legal titling of each asset—in the name of one spouse, both spouses, a trust, a partnership or another legal entity. But the title isn’t always determinative of division. The handling of the assets during the marriage is increasingly affecting judges’ views. Divergent laws among countries range from the simple “everything is a marital asset” to “the title governs whether it’s a marital asset, no matter what.”
Even the seemingly straightforward practice of holding assets in joint name can become problematic when a divorcing couple has connections to multiple countries. For instance, although a common legal titling for joint owners in the United States is often joint tenancy with right of survivorship (JTWROS), in some states such as Florida, married couples are typically advised to own joint assets as tenants by the entirety (TBE) for creditor protection. This legal option isn’t available in some other countries, leading to traps for the uninformed. The Ebanks22 divorce is a prime example. Arthur and Diane Ebanks, residents of Florida, titled their properties in the Cayman Islands as TBE. However because Cayman doesn’t have a TBE designation, it was considered as titled JTWROS. On Arthur’s untimely death soon after the divorce, the properties passed immediately to Diane by operation of Cayman law. This contradicted provisions in the marital settlement agreement and the final divorce judgment as well as what would have been the outcome under Florida’s TBE statutes.23
Community property (CP) law causes angst even in jurisdictions where this is the default for married couples’ asset ownership. The first hurdle is determining which assets are deemed community property and which are owned by only one spouse. The legal form of ownership is based on various factors, the three most common being place of residence at the time of marriage, place of domicile at the time of marriage or place of celebration of the marriage. In some cases, more than one of these factors may govern the validity of the marriage, and thus the divorce proceedings, as in the case Lalonde v. Agha.24 Under the law of Ontario, Canada, where the couple lived, the marriage was legally validated despite the fact it had been based on an unregistered religious ceremony and was invalid in Tennessee, the place of celebration of the marriage. The Ontario Court of Appeal upheld a lower court’s ruling that the marriage was valid under Ontario’s Marriage Act, so the divorce could proceed under the provisions of Ontario’s Family Law Act.
The next challenge is determining the form of CP assets. There are three common forms: (1) all assets are CP (the so-called “Napoleonic version,” available in France); (2) assets acquired during the marriage are CP while other assets and gifts and inheritances are separate property (as in U.S. states such as California); or (3) a “chameleon CP” that changes from title-based during the marriage to CP at death or divorce. Some civil law countries such as Germany and Italy also offer couples the option of choosing their preferred form of CP or even the opportunity to customize a version. This plays havoc with property division during a divorce proceeding.
The Marital Home
The family home has long been treated as a special asset under the law, not subject to the usual division of marital and non-marital assets. Regardless of title, marital home(s) are often accorded protections for poorer spouses and spouses with custody of minor children.
For example, the U.K. law known as the “Mesher Order” provides for the marital home to remain titled in a joint name and avoid an immediate sale while the custodial parent lives in it until a predetermined event such as the children finishing their education or reaching age 18.
Placing a house in a trust or other legal entity is no guarantee that divorce courts won’t treat it as the marital home.
Trusts
Dealing with assets owned by trusts is particularly challenging in marital dissolutions given the wide disparities among and even within different countries. While the Hague Convention on Trusts25 explains bifurcated ownership and requires the recognition of trusts that were validly created in countries with trust laws, civil law countries continue to grapple with trusts in the context of divorce.
Assets in self-settled revocable trusts are usually considered marital assets. Self-settled asset protection trusts, be they domestic or offshore, may add a layer of protection, although treatment varies depending on facts and circumstances. Following the lead of the U.K. courts, some Commonwealth countries characterize such trusts as “nuptial settlements” and consider them as resources during property division.
Offshore jurisdictions may have firewall statutes shielding trust assets from foreign laws and orders.26 Hiding behind these statutes, however, may not always be a good strategy, especially in jurisdictions with well-established judiciaries. As noted by Justice Paul Coleridge of the England and Wales High Court:
. . . sophisticated offshore structures are very familiar nowadays to the judiciary who have to try them. They neither impress, intimidate, nor fool anyone. The courts have lived with them for years. If clients ‘duck and weave’ over months or years to avoid coming clean they cannot expect much sympathy when it comes to the question of paying the costs of the enquiry which inevitably follows.27
Experienced family law practitioners representing non-beneficiary spouses tend to avoid fighting for access to asset protection trusts if there are other assets available to satisfy the property division.
Third-party trusts require a nuanced treatment. Often created by family members with the expectation of the assets continuing in the family bloodline, these may fall under an inheritance exemption as separate property rather than part of the marital assets.
But the devil is in the details—literally in this sense, as treatment may turn on the trust document’s distribution provisions, which can range from fully discretionary to mandatory income and/or principal payments. Similar to U.S. domestic divorces, other factors affecting whether and to what extent the trust assets are considered marital include the number of trust beneficiaries, trust distributions during the marriage and the beneficiary’s degree of control over trust assets. In Daga v. Bangur,28 the U.K. court deemed trust assets unavailable for spousal support despite the trust’s being self-settled by the wife and her being a beneficiary. The court considered the wife’s father’s control through a letter of wishes, as well as the discretionary nature of the offshore trust, sufficient impediments to the wife’s access to trust assets.
In contrast to the usual trust law interpretation, family law courts in many jurisdictions tend to expand the marital assets to include discretionary interests in trusts. For example, the Family Law Act of British Columbia considers interests in discretionary trusts as marital assets for the purpose of property division. But there are also significant differences in public policy among different countries, leading to different outcomes (see “Jurisdictional Differences,” this page).
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To equalize divorcing spouses’ respective shares of the net family property, courts in Ontario, Canada have attempted to quantify beneficiary spouses’ interests in discretionary trusts. Valuation methods vary widely. Interests in trusts aren’t liquid and may be further constrained by the use of layers of legal entities owning the assets. While quantifying a beneficiary’s interest based on the trust’s market value at the date of a divorce isn’t uncommon in parts of Canada, another theory advanced in the same provinces bases the value on what a spouse would pay to not lose their discretionary interest, rather than fair market value.29
A final decision for trustees is whether and to what extent they should participate in foreign divorce proceedings. Joining a legal action offers the opportunity to protect trust beneficiaries’ interests as well as their own, but there can be significant negatives. By submitting to the jurisdiction of a foreign court, a trustee may be faced with a foreign judgment that conflicts with the laws of the trustee’s home country. Further, their involvement may hurt some beneficiaries as well as help others, and there’s the possibility that trust documents, which were previously private, become public record.
Justice Peter Singer of the England and Wales High Court summarized this dilemma in his ruling in Joy v. Joy-Morancho:
[The] trustees have been entirely entitled to decline to submit in any way to this court’s jurisdiction . . . But the fact that those duties and obligations, and the choice whether or not to attend, do exist does not render the trustees . . . immune from the court’s findings drawn from such evidence as it does have available.30
Trustees may try to protect themselves by obtaining approval from the beneficiaries and/or their local court before joining in foreign proceedings, or they may choose instead to monitor the case and even supply information without actually submitting to the foreign court. They may also find they have no choice. Courts may order the joinder of foreign trustees to divorce proceedings and/or seek disclosures from them.
Such court orders may not be binding, however, particularly on offshore trustees. As English family court Justice Nicholas Mostyn acknowledged:
I can . . . see why overseas trustees may not want to submit to the jurisdiction of the English Court. They may prefer to keep their powder dry and to wait to see what judgment emerges before deciding whether or not to resist enforcement proceedings in their local court. I have to say, however, that I find it hard to see why participation by the trustees in a helpful or meaningful way in this court’s inquiry qua witness could be construed as a submission to the jurisdiction.31
Other Legal Entities
Companies and similar entities are second only to trusts in causing confusion in divorces spanning more than one jurisdiction. Holding liquid assets, real property and/or business operations in corporations, partnerships and other entities is a common practice in many countries, whether for privacy, succession planning, creditor protection and/or tax advantages. But there’s little consensus even within countries as to how to treat such structures during a divorce.
England has led the way in exploring whether a divorce can justify piercing the corporate veil32 of a company legally owned by one spouse to provide for the distribution of what were corporate assets to the other spouse. This is particularly relevant when most of what are deemed marital assets are held in a corporation and access to these assets is needed for an equitable property division.
Despite extensive arguments from both sides, the high profile divorce case Prest v. Petrodel33 didn’t result in the bright-line test many had hoped for. Although Michael Prest, a dual British/Nigerian citizen, was based in Monaco, the location of the marital home in London justified a U.K. venue. As part of a £17.5 million divorce award, the U.K. Supreme Court ordered Michael to transfer properties in various jurisdictions held by companies titled in his name to his wife Yasmin. While this may appear to be an example of piercing the corporate veil, the decision was based on the circumstances surrounding the formation and funding of the companies. Thus, the order supported lifting the corporate veil for marital dissolution purposes, but only in cases in which a company had been created or structured in some way to frustrate the law.
The trend in family law to justify looking through corporate and other structures to access assets owned by wealthier spouses continues. In the multi-year divorce case Akhmedov v. Akhmedova,34 the U.K. high court ordered assets owned in multiple corporate and trust structures created by Russian businessman Farkhad Ahkmedov to be transferred to his wife Tatiana. Despite Farkhad’s use of a Lichtenstein and Dubai situs to frustrate transferring assets, including his luxury yacht to Tatiana, her U.K. counsel persisted with court orders that were upheld in the courts of the Dubai International Financial Center. After years of wrangling, Tatiana accepted a settlement of cash and art valued at around £150 million.
Tax Traps
As with domestic divorce settlements, in cross-border divorces, it’s critical to pay attention to tax implications for the spouses.
Alimony poses some surprises in the international arena. Alimony from a U.S. resident to a non-resident former spouse is U.S. source income and thus could be subject to mandatory tax withholding by the U.S. resident. However, if the U.S. citizen payor resides abroad, this doesn’t apply.
Recent changes in the tax deductibility of alimony paid by U.S. residents simplified the coordination of U.S. divorce decrees with those of other countries. Prior to the U.S. Tax Cuts and Jobs Act of 2017 (TCJA), alimony had to end at the recipient’s death to reduce taxable income of the payor. This was contrary to the rules in many other countries. So U.S. taxpayers, such as Gary Wolens,35 with divorce decrees from abroad, found themselves in the unenviable position of not being able to deduct their alimony payments on their U.S. tax returns. By making alimony non-deductible for U.S. tax purposes, the TCJA aligned U.S. tax treatment with that in many other jurisdictions.
Issues also arise if the wealthy spouse has expatriated and is considered a “covered expatriate” under Internal Revenue Code Section 877 or 877A. As such, unless other arrangements are factored into the settlement, recipient former spouses receiving maintenance and/or property settlement assets may find themselves liable for U.S. gift tax at the highest marginal transfer tax rate.36
Questions arise regarding the entitlement of spouses to their former spouses’ U.S. government benefits such as Social Security, disability and veteran’s benefits. Eligibility rules differ depending on whether the individual claiming benefits lives in the United States, in another country with which the United States has a Social Security agreement (totalization) or abroad in a non-treaty country. A divorce decree from another country presents further complications. Non-U.S. former spouses may, however, be able to collect U.S. government benefits on the earnings record of a U.S. former spouse.
While the U.S. government benefits are federal, the determination of the validity of a divorce is based on the law of the state of the worker’s domicile when the divorced spouse files for these benefits. States may question whether there was sufficient nexus by one of the spouses to the foreign venue for the divorce, whether the foreign divorce would have been considered conscionable in the state of the worker spouse’s domicile and other factors beyond the scope of this article.
Discovery, Enforcement, Collection
Identifying and locating marital assets is one of the most challenging aspects in a cross-border divorce. Outside the United States, pre-trial discovery in courts of law is often limited in scope, sometimes requiring parties to wait until the trial is underway for significant insights. Transferring assets to family and even friends when a divorce is apparent is more common in some countries compared to the United States. And the recent popularity of digital assets particularly favored by some multinational investors further complicates discovery. Often, a cost-benefit analysis suggests stopping short of an exhaustive search and pursuing what appear to be opportunities with the greatest likelihood of a significant recovery.
The trend toward global transparency may enhance efforts to locate hidden assets. For instance, under amendments to Australia’s Family Law Act 1975 and Income Tax Assessment Act 1997, spouses’ Australian pension information is available to interested parties during a divorce. The rise in government registries of beneficiary owners, while motivated by the fight against tax evasion and money laundering, may also prove to be helpful in tracking down a spouse’s assets. Although some countries restrict access to such registries, there are typically exceptions for law enforcement and persons with a legitimate interest.
Responses to what’s perceived by some offshore jurisdictions as an invasion of privacy range from enacting further firewalls to cooperating with foreign courts to achieve justice. For instance, in 2016, a British Virgin Islands court authorized a third party to assist a foreign judgment creditor in tracing assets, based on the debtor’s past pattern of evasive conduct.37
Enforcing a foreign court decree and collecting the assets is a final but often most difficult step in cross-border divorces. As previously noted regarding pension orders, one country may not recognize a divorce decree from another country. For example, under England’s Family Law Act of 1986, which guides English courts regarding the recognition of foreign divorce decrees, a U.K. family court refused to recognize the Radsereshts’ Dubai divorce on the grounds that the wife hadn’t understood what she was signing.38 And more recently, the U.K. Supreme Court didn’t recognize a divorce from Ghana, deeming it was obtained without the requirements for a U.K. divorce.39
Religious-based divorces pose particular dilemmas. Islamic divorces by “taleq,” or the husband’s repudiating his wife by repeating “I divorce you” to her three times, often aren’t recognized in non-Islamic countries. This was the case with Hussein v. Parveen,40 in which an English court didn’t recognize a taleq divorce obtained in Pakistan. On the other hand, because religious marriages are the only legal form of marriage in Israel, in 2017 a Florida appellate court didn’t recognize an Israeli form of domestic union known as “reputed spouse” for succession purposes, noting “the deference we must afford to a sovereign nation’s authority to define, for its own people, the unique status of marriage . . .” and concluding that “the probate court erroneously conflated a domestic union under Israeli law with marriage under Israeli law.”41
Financial and legal advice for multinational clients is complex and changing. Cross-border divorce proceedings are no exception. Challenges include jurisdictional differences, locating and dividing assets held in multiple countries under various legal titles, trends in spousal maintenance and dealing with multi-country agreements and legal precedents for marital dissolutions. With the increase in cross-border marriages, the need for professional advisors with knowledge of international divorce and other facets of family law continues to grow.
Endnotes
1. World Migration Report 2022, International Organization for Migration.
2. Wikipedia defines “transnational marriage” or “international marriage” as a marriage between two people from different countries.
3. U.S. Bureau of Labor Statistics, retrieved from the Federal Reserve Board of St. Louis (April 5, 2023).
4. U.S. Census Bureau (2011).
5. The HCCH 1970 Divorce Convention provides for the recognition in each contracting country of divorces and legal separations obtained in another country.
6. The United States isn’t a signatory to this but often recognizes foreign divorces if they’re valid in the country where they were decreed.
7. Brussels II Regulation EC No.2201/2003.
8. Rome III Regulation: European Union Divorce Law Pact of 20 Dec. 2010.
9. There’s considerable controversy among U.K. legislators as to the timing and choice of EU laws to be sunset versus retained. Without a negotiated settlement, courts and different countries are left to work out important issues such as the appropriate venue for a divorce.
10. Estrada v. Walid Bin Ahmed Abdullah Al-Juffali, EWHC 213 (Fam 2016).
11. The Divorce, Dissolution and Separation Act 2020 amends the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 to remove fault-based concepts in proceedings for divorce, dissolution and (judicial) separation in the United Kingdom.
12. Pierberg v. Pierberg, EWFC 24 (2019).
13. Villiers v. Villiers, UKSC 30 (2020).
14. AZS and Another v. AZR, SGHC 102 (2013).
15. SA v. FA, EWFC 115 (Sept. 9, 2022).
16. English-speaking countries such as the United States and Ireland, as well as former English colonies and overseas territories.
17. Corte di Cassazione, No. 11504 (May 10, 2017).
18. Waggott v. Waggott, EWCA Civ 727 (2018).
19. Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations, adopted by the 21st session of The Hague Convention on Private International Law.
20. This can cause significant challenges with qualified domestic relations orders issued by U.S. courts over English pensions.
21. Goyal v. Goyal, EWFC 50 (2016).
22. Ebanks v. Ebanks, WL 358867 (Fla. 2d Dist. Ct. App. Jan. 29, 2016).
23. Under Florida law, had the property been owned as tenancy by the entirety, it would have become tenants in common on the divorce, and Arthur’s estate would have owned one half of it.
24. Lalonde v. Agha, 62 R.F.L. (8th) 268 (Ont., C.A. (2021).
25. Hague Convention on the Law Applicale to Trusts and on their Recognition of Trusts (July 1985).
26. In March 2019, the Cayman Islands Trusts (Amendment) Lawextended the firewall protection of Cayman trusts and companies.
27. J v. V, EWHC 3110 (Fam 2003).
28. Daga v. Bangur, EWFC 91 (2018).
29. Margaret O’Sullivan, “Discretionary Trusts—Practical Concerns: Where Trust Law Meets Family Law,” STEP Canada 19th National Conference, Toronto (June 12-13, 2017).
30. Joy v. Joy-Morancho, EWHC 2086 (Fam 2017).
31. BJ v. MJ,EWHC 2708 (Fam 2011).
32. Piercing the corporate veil refers to looking through the corporate structure to the assets within, thus violating the doctrine that a company is a separate and independent legal person, distinct from its shareholders.
33. Prest v. Petrodel Resources Ltd, UKSC 34, 2 AC 415 (2013).
34. Akhmedov v. Ahkmedova & Others, EWHC 1526 (Fam 2020).
35. Gary A. Wolens v. Commissioner, T.C. Memo. 2017-236.
36. Internal Revenue Code Section 2801.
37. UVW v. XYZ, British Virgin Islands (Oct. 27, 2016).
38. Radseresht v. Radseresht Spain, EWFA 2932 (Fam 2017).
39. Botwe v. Brifa, EWHC 2307 (Fam 2021)
40. Hussein v. Parveen, EWFC 73 (Fam 2021).
41. Cohen v. Shushan, 212 So. 3d 1113 (Fla. Dis. Ct. App. 2017).