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Family Law

CANBERRA FAMILY LAW – England:Australia, get more than the ashes! Dividing assets on separation: home and away – by International Family Law Specialist, Carmel Brown

By April 5, 2014No Comments

Different countries operate different systems and therefore these issues affect an ever increasing number of families who live and work abroad.

It is vitally important therefore that you seek legal advice early on to ensure that you are aware of the potential settlement in your case.

Q: How differently are financial issues dealt with abroad? How will our assets be divided?

A: Some countries operate a system informally known as community of property.  In these cases, the assets accruing during the marriage up until the date of separation are divided equally.  Pre-marital and post-separation assets and all inheritances and gifts are taken out of account.  This inflexibility can sometimes produce unfair outcomes.  This system gives no accounts to commitments made within a marriage which are often to one spouse’s prejudice, e.g. giving up a career for child raising or moving countries to be with the other spouse.

Maintenance may be in addition to this division, although an increasing number of countries do not grant spousal maintenance for more than a few years after the divorce.

Q: My husband and I are Australian citizens. Can England apply Australian Law in relation to our matter?

A: No, England only ever applies English law.  Some countries apply not their own domestic law but the law of the country with which the couple have the closest connection, known as “choice of law” or “applicable law”.

Q: How will the English Family Court know what are the assets to be divided?

A: There is an obligation on each spouse to give full and complete disclosure of all of their resources worldwide.  However, this applies in most countries.  England is a leading country in its intensive and effective investigation of disclosure, with very wide international powers to obtain documents and information.  England requires disclosure of personal assets held in the name of trusts, companies, other family members or in other ways designed to conceal true ownership and wealth.

Q: How does the way England deals with ascertaining what assets are to be divided compare to other countries?

A: Ascertaining the assets to be divided in some countries, even if to be divided equally, can be hard work and often simply impossible.  Some countries rely on self-disclosure without any opportunity of corroboration or investigation.  Some countries have minimal investigation powers.  Some countries ignore assets put within trusts or companies, even if done to evade marital responsibilities.  Some countries ignore offshore assets, i.e. resources outside the country.

Q: My partner and I are cohabitating but are not married. Do England and Australia differ in the way they deal with cohabitation and what are our rights in both countries?

A: In England, as an unmarried couple you would have no legal rights if you separate, regardless of whether you are cohabitating and have shared assets. However, in Australia, if you satisfy the courts that you are in a de facto relationship, upon relationship breakdown the property division will be dealt with in the same way as if you were married. Generally speaking, in Australia, marriages, civil unions and cohabiting couples will be treated the same for the purposes of property division, maintenance and inheritance.

Carmel Brown, is a solicitor at The International Family Law Group – a law firm specialising in international family law matters based in Covent Garden, London.

 

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