Madrid - London - Edinburgh: short-haul distances but a world apart when relationships break down

25 November 2013

I recently attended a family conference in Edinburgh, which featured a talk given by Rachael Kelsey, a partner at Scottish firm Sheehan Kelsey Oswald Solicitors, Charlotte Bradley, head of the Family team at Kingsley Napley, and Alberto Perez Cedillo, head of the Spanish law firm by the same name. 

The day's agenda included updates from a Scottish law perspective on children and financial issues. Charlotte, Rachael and Alberto's talk, which took place at the end of the day, was last but by no means least.

The session was set around a case study involving a young Spanish couple who moved to London and also bought a house near Dundee.  The speakers paused throughout the session to advise the wife in the case study which, when advised by Charlotte, Alberto and Rachael respectively, highlighted the differences between each country’s approach to dealing with, for example:

  • securing jurisdiction in a divorce race;
  • financial provision after a short marriage or long marriage;
  • the treatment of company and inherited assets;
  • European marriage contracts and English prenuptial agreements;
  • financial provision for children; and
  • the rights of unmarried cohabiting couples.

What was clear from the talk, but perhaps not surprising, was that the English court’s wide powers of discretion mean that, on the breakdown of a marriage, provision for the financially weaker party (usually the wife) is far more generous than in our Spanish and Scottish counterparts, whose awards are more strict and formulaic. It is therefore not surprising that London has been named ‘The Divorce Capital’.  That said, we also discussed how this can make it difficult for English lawyers to advise their clients on precisely what they will be entitled to on divorce.  We instead have to consider and advise on the range of possible outcomes and the uncertainty which naturally follows in court proceedings in England and Wales. 

On the other hand, with legislation in place in Scotland to protect cohabiting couples, our Scottish counterparts seem to be more generous to unmarried couples seeking provision in their own right following the breakdown of their relationship.  The Law Commission for England and Wales considered the position on rights for cohabiting couples and reported its findings in 2011. Following this, however, and despite pressure for reform, the Government confirmed that no changes will take place to the law in this area during the current parliamentary term.

What does this mean for international families and couples?

What was clear from the talk was the number of choices families who travel or relocate internationally are faced with if their relationships break down.  These can often be complicated.  When moving to another country, it is important to take advice about the practical issues which might arise.  This might include the impact of divorce or separation for your family both in the country you have left and the country you are moving to.  Advice can be sought about the ways in which people can seek to protect their and potentially their children’s interests; such as signing a pre or postnuptial agreement; understanding the validity of a foreign marriage contract in another country; considering a cohabitation agreement if living unmarried in England; ensuring that immigration status is considered and taking advice about the tax implications of a relocation. 

Should you be seeking advice on any of these issues, please contact a member of our family team.

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