Shining a light on family law for expats
Edith van Ruitenbeek is a lawyer, mediator and partner at Van Hilten Advocaten & Mediators, a practice which specialises in (inter)national family law.
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 amongst expats.
Where to file for divorce when you are an expat?
Last summer, I once again went through marathon mediation sessions with an expat couple in order to reach a divorce agreement, and, even more importantly, 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 spouse did not want to leave. A joint petition for divorce was filed in August in the Netherlands, in order to prevent further escalation and 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 to be preferred - as there is no single answer to the question “which is best”.
The first consideration should be, of course, whether 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 the Dutch courts facilitate a quick divorce once 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 and which national laws these courts might apply, or are obliged to apply. Here are a few examples.
As 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 and Switzerland, the 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, as the court applies its own law. This implies that you only have to state that the marriage has irretrievably broken down, as the Dutch courts do not assign blame (if any) or consider any related penalties. In this context, it is also worthwhile examining which of the courts with jurisdiction regarding the 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. Once a petition is pending, any other court approached later, will then have to abstain from dealing with the case.
What are your options?
As a lawyer specialising in international family law, I always try to encourage my new divorce clients, especially expat clients, to consider divorce as a transfer from married life to a life after marriage… for both. And to point out how important it is to try to settle the consequences of the 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, whereby the most important asset of mediation is that the parties themselves 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, when the difference in skills and knowledge between the spouses is too great, threatening to create an imbalance too vast to mediate. In that case, a collaborative divorce setting may be a viable alternative. With collaborative divorce, both parties choose their own lawyer to advocate their interests, as well as their common interests.
A coach with a psychological background structures the process, pointing out possible problems concerning children in an early phase and guiding the parents towards a solution. The common goal of this team of five 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.
We do realise that international family law can sometimes be a jungle for our expat clients, despite all the efforts to unify conventions and EU regulations.
Even between EU countries, there remain remarkable differences in rules and legislation. Not only regarding divorce, but also regarding children born out of an international relationship, or when the applicable matrimonial law conflicts with the applicable law of succession, especially when it comes to real estate in different countries.
Living an expat life, the existence of this legal jungle is an important issue to be aware of. Van Hilten Advocaten & Mediators gladly offers you their expertise.
The author of this article, Edith van Ruitenbeek, is a lawyer and partner at Van Hilten Advocaten & Mediators, Nassaulaan 15 Den Haag and De Lairessestraat 129 in Amsterdam.