Legal considerations for expat women when considering divorce
Where will the case be heard? Which law will apply? Several countries may claim jurisdiction. For example, in the case of a divorce between spouses of different nationalities and/or living in a country other than their country of origin. One might think that the rules governing divorce are the same for men and women. In practice, however, the situation of expat women can be more precarious, depending on the country.
A European Regulation to simplify Private International Law
To address the jurisdiction issue, the European Union (EU) adopted Regulation 1529/2010 on December 20, 2010. This regulation, also known as the "enhanced cooperation regulation", has been in force since June 21, 2012. It applies to all EU member states and simplifies private international law by allowing spouses to choose the law under which they wish to divorce. If they cannot agree, Article 8 of the Regulation applies. The article provides for 3 cases to determine the applicable law: the spouses' habitual residence at the time of the divorce application, their last common residence during the previous year (or if one of the spouses still resides there), or the law of the common nationality of the spouses.
Finding the best jurisdiction as an expat woman
National laws are intended to avoid conflicts. In France, for example, Article 1070 of the Code of Civil Procedure offers the same choice as the European Regulation but with a hierarchical option that prioritizes the place of habitual residence. However, other jurisdictions may still declare themselves competent to hear the case. In any case, expatriate women must ask themselves: "Which jurisdiction is most favorable to me?" After all, that jurisdiction will determine custody rights, property rights or alimony. However, some jurisdictions remain highly unfavorable to women.
In the Philippines, for example, divorce is illegal. This situation places an even greater burden on women, who cannot divorce even if they have suffered domestic violence. There are two procedures for separation: physical separation (but the couple remains legally married and therefore cannot remarry) and annulment of the marriage on the grounds of "mental incapacity" of one of the spouses (the only permissible ground). The exorbitant cost of this procedure limits its scope. In Lebanon, for example, divorce is not defined by the Civil Code but by the country's 18 recognized religions. These religions determine the law. However, according to the NGO Human Rights Watch, all religious laws discriminate against women.
Choosing the law of your country of origin is not always advisable. Depending on your situation, your country of residence's law may be a better option. It's best to seek the advice of a sensitive lawyer who is willing to listen. Women are not always heard properly by civil authorities.
When culture helps or hinders women's rights
In the United States, women file for divorce about 70% of the time. The figure is 75% in France and 62% in the United Kingdom. In the US, this figure rises to 90% if we focus on women with higher education. In these countries, where women's emancipation has given them more rights and where the struggle for women's rights continues to gain momentum (despite the ban on abortion in the United States), divorce is not taboo. The culture of marriage has also changed; the weight of the Church is diminishing, as is the "symbolic weight" of marriage. These women, expatriates or not, who seek divorce are financially independent and want the best for themselves. If the marriage no longer suits them, being stuck is not an option. For expatriate women, however, divorce in such countries will raise a financial issue. The cost of a divorce in New York or Tournai (Belgium) is not the same.
But culture continues to play an important role, both in countries where it's easy for women to divorce and in those where the process is more complex. In India, for example, the weight of culture continues to weigh on and against women to the point of affecting the legal framework. It's worth noting that since December 28, 2017, women can no longer get an instant divorce (triple talaq). Before that date, Muslim law allowed a man to repudiate his wife by pronouncing "talaq" (you are divorced) three times. Today, husbands and wives are liable to imprisonment in such cases. This is a first step forward for Muslim women. But other traditions remain. Often, even the authorities are reluctant to listen to them. Divorce then becomes a battle that lasts many years, a never-ending struggle.
Divorce abroad: the weight of society
The struggle is all the more difficult because expat women are often the notorious trailing spouses. They have sacrificed their careers to follow their husbands abroad and don't always manage to return to the job they left behind. They don't work (or sometimes are not allowed to work). They take care of the children and follow up on their education. However, financial issues arise with divorce considerations. How are these expat women going to survive if they are not working? If they have children, how will they care for them? Will they continue to live in the foreign country? Will their spouse pay alimony? What are their rights?
In addition to these practical questions, the context can work in the expatriate's favor or against her. Does she have her family's support? Parents-in-law? Relatives? What was it like before the divorce? Divorce is not always well understood by those around them. It also brings about questions and judgment from others. There is also the weight of culture and tradition in the eyes of family and friends. Sometimes, expat women who file for divorce feel unfairly accused of disrupting family harmony, harming the children's development, etc. In these complex cases, women must have allies.
Choosing the right lawyer is essential. The best way is to contact women's associations and other activist groups, which often have lists of compassionate professionals. Living abroad tends to multiply everything, for better or worse. To cope with a divorce abroad, it's essential for expatriate women to be well surrounded by family and friends. Again, kindness and respect are crucial. Women need to feel that they are not being judged. There are also discussion and support groups, so you don't have to keep all your feelings to yourself. Joining these groups also allows you to hear others' stories and gain perspective.
More tips for handling a divorce abroad as an expat woman
Consider drawing up a prenuptial agreement before you get married. Many couples consider this a sign of distrust. A prenuptial agreement doesn't mean you don't trust your spouse. Instead, it defines how your property will be divided during your marriage. You can add clauses to it for greater protection if you are the trailing spouse.
Meet with professionals before your expatriation: a notary, a specialized lawyer, etc. Once again, it's not about doubting the solidity of your relationship but about being better prepared for your new life abroad, especially if you're going to a country whose laws discriminate against women. This is also the time to think about diversifying your assets. If you're next in line, consider your finances so you're not dependent on your partner. Keep a bank account in your own country. Open a bank account in your name in your expat country.
Divorce is often a bigger shock than you think, even if it's amicable. Before taking the plunge, prepare yourself physically and mentally by ensuring you have a trustworthy lawyer, sympathetic relatives, etc. You also need to ensure you have the financial resources to cover the divorce costs, especially the post-divorce period.
Some people feel the need to project themselves into the post-divorce period immediately. They visualize their careers, imagine a move to another country or returning home, or embark on new projects. Others, on the other hand, feel the need to take a "mental break" to digest the divorce and start over. Whatever you decide, listen to yourself without being influenced by others. Despite your best intentions, those around you can sometimes push you to project things too positively and brutally. Listen to yourself and see the divorce as a new beginning.
