Only in France

This from the UK Telegraph about the aftermath of a french divorce. The report claims that a 51-year-old man was fined under article 215 of France's civil code, which states married couples must agree to a "shared communal life". A judge has now ruled that this law implies that "sexual relations must form part of a marriage".

The rare legal decision came after the wife filed for divorce two years ago, blaming the break-up on her husband's lack of activity in the bedroom. A judge in Nice, southern France, then granted the divorce and ruled the husband named only as Jean-Louis B. was solely responsible for the split. But the 47-year-old ex-wife then took him back to court demanding 10,000 euros in compensation for "lack of sex over 21 years of marriage". The ex-husband claimed "tiredness and health problems" had prevented him from being more attentive between the sheets. But a judge in the south of France's highest court in Aix-en-Provence ruled: "A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. "By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other."

Do my divorce lawyers legal fees have to be recorded contemporaneously and itemized in a bill?

Baroness Shackleton and Sir Paul McCartney

Fiona Shackleton and Sir Paul McCartney. Sir Paul confirmed that he was happy with Lady 


The answer would appear to be -- it depends whether your divorce is taking place in California or England and Wales. Here is a truly amazing article from the English Telegraph. This is an extract from the article:

"Madonna and Sir Paul McCartney appear to have been charged hundreds of thousands of pounds more than the hourly rate would have demanded, documents show, a practice known as “marking up. The Conservative peer, who represented the Prince of Wales and the Duke of York in their divorces and remains solicitor to Princes William and Harry, appears to have charged her clients more than twice as much as the rate for the actual number of hours she had recorded as having spent on their cases, according to internal time sheets. The sheets, seen by The Daily Telegraph appear to show that a six-figure sum was added to bills of both Madonna and Sir Paul, as well as at least seven other clients in a column headed ''mark up. In one case a £14,000 bill for work on the former Beatle’s divorce from Heather Mills shows a “mark up” to £150,000." Read the full article.

Just to let you know I am an English Solicitor admitted to and practicing in California and I have NEVER included such a mark up on any of my bills. 


New Mediation Rules for Separating Couples in England and Wales

Guardian.co.uk reports - Last week the government's independent Justice Review Panel published its interim report on the family justice system in England and Wales.

It is a welcome and broad review of a system that is, as noted by the panel's chair, David Norgrove, under serious strain. Too many cases involving separating families take too long to resolve, with children sometimes waiting more than a year for their futures to be determined. The panel has rightly pointed out that lengthy, complicated legal processes are emotionally and financially draining for parents and distressing for children.

Its recommendations, now out for consultation, are thoughtful and intelligent. They include a positive emphasis on encouraging separating couples to consider non-court dispute resolution services, and on assessing whether they need parenting information.

So far, so good. But the government, apparently too impatient to wait for anything as slow as a fully consulted, well-considered and balanced review – even one commissioned by itself – introduced new rules on mediation for separating couples on Wednesday.

Under the changes, first announced by the justice minister Jonathan Djanogly in February, couples wishing to go to court should now first attend a meeting with a mediator who will assess whether their case is suitable for mediation.  Read the article.

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EU children to benefit from speedier maintenance payments

Gozo News.com reports- "With an estimated 16 million international couples in the EU and 30 million EU citizens living in non-EU countries, the issue of retrieving child maintenance from abroad will grow. For example, a couple living in France get divorced and the father moves to the United States. But will the child still receive the maintenance payments a French court ordered him to pay?

Under a new Convention signed by the EU, the American authorities would cooperate with those in Europe to make sure the father fulfils his obligations and the child still gets support." Read the article.

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England: Electronic Tagging to Prevent Re-Abduction of Child

Thanks to Jeremy Moyler's International Family Law Blog

As a means of preventing international child abduction, the English High Court has issued a consent judgment requiring that a mother be “electronically tagged” before being allowed to visit her child. Re A (A Minor) March 17, 2009.

(read more on Jeremy's Blog)

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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International: German heiress tests prenup law in £100m divorce case

This from the UK's Telegraph April 21, 2009

One of Germany's richest women, Katrin Radmacher, is to use the British courts in an attempt to enforce a prenuptial agreement which would leave her ex-husband without a penny of her £100 million fortune.

Fiona Shackleton
Divorce lawyer Fiona Shackleton has been hired by Nicolas Granatino to oppose his ex-wife Katrin Radmacher

In a landmark case, Miss Radmacher, a paper industry heiress, will argue that Nicolas Granatino is bound by an agreement he signed before their marriage in 1998 in which both parties agreed not to make any claim on the other if they divorced.

If she is successful, it could result in prenuptial contracts becoming legally binding under English law for the first time.

Mr Granatino, 38, who gave up his job as an investment banker to become a £30,000 a year researcher at Oxford University, has already been awarded a £5.6 million lump sum following a High Court hearing last July.

On that occasion Mrs Justice Baron ruled that it would be "manifestly unfair" to hold Mr Granatino to the contract, which was signed in Germany before the couple married in London.

Miss Radmacher, 39, will take the case to the Court of Appeal next week, but her legal team will face a formidable barrier in the form of Fiona Shackleton and Nicholas Mostyn QC, the lawyers who represented Sir Paul McCartney in his divorce from Heather Mills and who have been hired by French-born Mr Granatino.

The couple met in Tramp, the members-only nightclub in Mayfair, when Mr Granatino was working as a £320,000 a year merchant banker for JP Morgan, and his wife was running a clothes shop in Knightsbridge with her sister. The couple went on to have two daughters now aged nine and six.

Problems began in 2003 when Mr Granatino decided on a change of career and took up a lowly-paid post as a biotechnology researcher at Oxford, and the couple divorced in 2006.

At the previous hearing, Mrs Justice Baron heard that the husband had "virtually no assets" whilst his ex-wife had £54m in liquid assets and another £52m in capital assets, giving her an annual income of £2m.

Although the judge recognised that the prenuptial agreement would have been fully enforceable in Germany or France, they have never been legally binding here, and she said that the arrival of the couple's children had "so changed the landscape" that it should be set aside, and awarded Mr Granatino £5,560,000.

She also noted that the husband had not received independent legal advice before signing the contract and his wife had not disclosed the full extent of her assets at the time.

Miss Radmacher, meanwhile, accused her husband of deliberately delaying his doctorate to "maximise his claim" and said that if he "wishes to be an academic he must live as such".

Miss Radmacher was granted leave to appeal after two judges ruled that she had an "arguable case" that her husband should only be entitled to maintenance payments to cover the cost of looking after the couple's daughters, who spend a third of their time with their father and the remainder with their mother in Düsseldorf.

The outcome of the case will be keenly anticipated by divorce lawyers in London, seen as the divorce capital of the world because of the number of wealthy foreign couples who choose to make their homes here.

English courts tend to protect the weaker financial party in divorce cases, and most experts expect Miss Radmacher to fail.

Julian Lipson, head of family law at Withers, said: "The Court of Appeal will need to weigh up the conundrum between respecting the autonomy of parties to agree a financial settlement at the outset of their marriage, and the need for state interference at the time of divorce to protect the financially weaker party and any children.

"It is a political hot potato for one European member state to be saying that it will not respect a legally binding contract entered into in another, but the English court tends to be paternalistic in protecting divorcing spouses from themselves."

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India woman 'divorce scam' arrest

Thanks to Judith's Divorce Blog
By Sanjay Dasgupta 
BBC News


Indian police have arrested a woman who is alleged to have tricked a number of men into marriage only to get a divorce and extort large sums of money.

The woman, from the city of Mumbai (Bombay), is said to have threatened each husband with lawsuits, alleging that she had been harassed for dowry.

The woman and her parents were arrested in the southern city of Bangalore.

The woman's lawyer has denied the charges, saying that her client had married just once, not nine times.


In a culture where women are often on the receiving end of marital harassment, this case is novel - a 26-year-old woman arrested on allegations she had tricked a number of rich businessmen into marriage, only to file for divorce after a few weeks and demand large sums of money.

Each time, she is alleged to have threatened the husband with a lawsuit unless she was paid off, on accusations that she had been harassed for a dowry.

One of the men lodged a complaint with the police, accusing the woman and her parents of threatening and harassing him.

His lawyer said the complainant was the woman's ninth husband and that she had demanded a large amount of money from him.

The woman has been remanded in police custody by a court in Mumbai until her case comes up for a hearing on Thursday.

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Credit-crunched tycoon loses bid to reduce £11.2million divorce payout

An interesting case from the United Kingdom reported by the Daily Mail about a husband who argued that his divorce settlement should be reduced because shortly after his net worth was decimated by the crash. I wonder whether we will see any such claims this side of the pond. 


Brian Myerson has lost millions in the credit crunch

"A City tycoon who claimed his £11.2million divorce payout should be renegotiated because he had been hit by the credit crunch was today told that he could not 're-write' the deal.

Brian Myerson, 50, had told the Court of Appeal that the global economic crisis had taken a heavy toll on his assets following his divorce from his wife Ingrid.

The Johannesburg-born investor and his sculptor wife divorced in March last year, and he was ordered to pay her 43 per cent of the total £25.8million assets of the marriage, including their luxury South African beach house.

But polo-playing Mr Myerson decided to take the bulk of his £14.6million cut in share in investment company Principle Capital Holdings. 

As the credit crunch tightened its grip, the businessman saw the value of his shares plummet.

In a case that was watched eagerly by wealthy business folk facing similar woes, he told the court last month that if he complied with the order, he would be half a million pounds out of pocket.

Today, three appeal judges dismissed his challenge, saying the 'natural process of price fluctuation, however dramatic' did not satisfy the legal test for a change in a settlement.

They said that although the appeal had its 'dramatic features', its resolution was 'not difficult'.

Lord Justice Thorpe, in the written judgement, said: 'The husband, with all knowledge both public and private, agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead.'

Ingrid Myerson leaves the High Court

In a rhetorical conclusion he added: 'When a businessman takes a speculative position in compromising his wife's claims, why should the court subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest.'

In a cautionary note for anyone considering following the executive chairman's actions he said many could be contemplating an attempt to reopen settlements after encountering 'financial eclipse', but he added: 'They would be well advised to heed the warning that very few successful applications have been reported.'

He did however offer some hope for My Myerson, pointing out that he still enjoyed control of his company and the 'opportunities that go with it'.

'The market place may take a pessimistic view of his future prospects. He may not share the market place view. Unusual opportunities are created for the most astute in a bear market,' said the judge.

Neither of the Myersons were in court to hear the judgement.

But a spokesman for the tycoon said: 'Mr Myerson is disappointed that the court failed to recognise that the economic downturn had rendered his divorce settlement unfair.

'The aim of Mr Myerson's appeal has always been to ensure that the division of assets with his ex-wife was equitable and he will now take his appeal to the House of Lords.'

Before the divorce, the couple, who married in December 1982 and who have two sons and a daughter, lived in a £5million home in Hampstead, north London.

Mr Myerson, who bought an £8million home in Geneva after the divorce, agreed to pay his former wife £9.5million in instalments over four years. She also received a property in South Africa, which was worth £1.5million.

Mr Myerson, the court heard, had property assets, one of which he sold to cover the first instalment of the lump sum, £7million paid in April 2008.

He has four further equal instalments of £625,000 to pay over the next four years.

But Mr Myerson's share stake, once standing at £15million and rising as the price reached £3 per share, had dramatically fallen with the value per share at the date of the initial Court of Appeal hearing standing at 27.5 pence.

His spokesman said yesterday that the high court would be hearing a freestanding application to cancel the further payment due to his ex-wife under the terms of the existing settlement.

'That hearing will be in private,' he said."

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Custody and Hague Convention

This from Richard Gould Saltman's Family law Blog - The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Meaning that the custody must be determined in the US before the child is returned to Mexico.

Egypt fatwa: Community can force divorce



, March 13 (UPI) -- A Muslim cleric in


issued a fatwa saying
communitymembers can file for divorce on a couple's behalf.

Sheik Gamal Qutb, former head of Egypt's top religious institution, the Fatwa Committee at al-Azhar, said Sunday during a meeting at the Egyptian Press Syndicate that his fatwa states that neighbors and family members can file for a couple's divorce if the pair's differences appear irreconcilable, al-Arabiya reported Friday.

Qutb said community members should first attempt to help solve a couple's marriage problems, but should then present evidence of the marriage's failings to a court if the husbandand wife cannot live together in peace.

"If the evidence the neighbors present is verified, the court has the right to divorce the couple," Qutb said.


Recently we've been following posts from around the world. Another one from UPI

No divorce for sex-starved African man, 80

This from UPI March 18th 2009. What to say.....

BINDURA, Zimbabwe, March 17 (UPI) -- A court in Zimbabwe threw out an 80-year-old man's divorce petition after his wife rejected his complaint that they had not had sex in seven years.

The woman, who is in her 50s, told the court they had done it twice recently and she would be happy to provide the gory details to prove it.

"If you want I can describe him (graphically)," she told the magistrate in the northern town of Bindura.

The New Zimbabwean said Tuesday that Magistrate Miriam Banda took the woman's word for it and rejected the divorce application filed by Obert Manjengwa. Manjengwa had sought to dissolve the marriage because he hadn't had relations with his wife for seven years and was getting too old to waste time trying to convince her to accommodate him.

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Saudi court tells girl aged EIGHT she cannot divorce husband who is 50 years her senior

This from the Daily Mail

A Saudi court has rejected a plea to divorce an eight-year-old girl married off by her father to a man who is 58, saying the case should wait until the girl reaches puberty.

The divorce plea was filed in August by the girl's divorced mother with a court at Unayzah, 135 miles north of Riyadh just after the marriage contract was signed by the father and the groom.

Lawyer Abdullar Jtili said:"The judge has dismissed the plea, filed by the mother, because she does not have the right to file such a case, and ordered that the plea should be filed by the girl herself when she reaches puberty."

Mass wedding in Riyadh

Grooms take part in a mass wedding ceremony in Riyadh in June. Governor of Riyadh Prince Salman and a local group organized a mass wedding for about 1600 couples to help people unable to afford expensive ceremonies

"She doesn't know yet that she has been married," Jtili said then of the girl who was about to begin her fourth year at primary school.

Relatives who did not wish to be named said that the marriage had not yet been consummated, and that the girl continued to live with her mother.

They said that the father had set a verbal condition by which the marriage is not consummated for another 10 years, when the girl turns 18.

The father had agreed to marry off his daughter for an advance dowry of £5,000, as he was apparently facing financial problems, they said.

The father was in court and he remained adamant in favour of the marriage, they added.

Mr Jtili said he was going to appeal the verdict at the court of cassation, the supreme court in the ultra-conservative kingdom which applies Islamic Sharia law in its courts.

Arranged marriages involving pre-adolescents are occasionally reported in the
Arabian Peninsula, including in Saudi Arabia where the strict conservative Wahabi version of Sunni Islam holds sway and polygamy is common.

In Yemen in April, another girl aged eight was granted a divorce after her unemployed father forced her to marry a man of 28.

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Putting DIvorce Lawyers Out of Work

Thank you Judith MIddleton for bringing this to my attention. She is an English family law lawyer and her blog at http://judithsdivorceblog.blogspot.com/ is well worth a visit

Last week the media reported how a Gloucestershire builder came up with an ingenious idea to put divorce lawyers out of work. Instead of visiting a solicitor he put his wife up for sale, advertising her in the classified section of Trade-It as “Nagging wife. Very high maintenance – some rust.”

International Divorce

Thank you again to Jermey Morley for bring this excellant article to my attention.

Money in misery

Feb 5th 2009
From The Economist print edition

International marriages are crumbling with the global economy, revealing unseen pitfalls in cross-border divorce law. Good news for lawyers

Tim Marrs

Correction to this article

MARRIAGES that thrive on money may wither with thrift. That is a depressing lesson from the world economic crisis, which has brought a surge in business for divorce lawyers in former boomtowns such as London and New York. When one or both spouses is from a foreign country, divorce is not just sad but complicated too—especially when most assets may be in a third country, a pension in a fourth, and offspring in a fifth.

Globalisation has made binational marriages, once exotic, much more common among high-earning, highly mobile families. When they stop being high-earning, life gets tricky. Louise Spitz of Manches, a London law firm, has observed an “exceptional” period since September. “With the redundancies in the City there has been a concomitant wave of marital upheaval,” she says. “Families used to living on huge bonus income are unable to continue with the commitments they have taken on—housing and school fees and the cost of living the high life.” Manches has taken on eight more divorce lawyers to cope with the extra work. A high proportion, Ms Spitz and other lawyers reckon, of the once-rich couples now breaking up include at least one foreign spouse. 

So who sues whom for divorce and where? How much money will be awarded to whom? Will it be collected? And how? The answers are far trickier than most non-lawyers would imagine. Take, for example, this lightly disguised but real-life example: a wealthy philandering Texan banker with a French wife. Formerly resident in New York, with a recently-lost good job and rented house in London, he now plans to move back to Texas. His wife, newly suspicious and with no money of her own, wants to take the children home to France. She needs her family, she says. What she actually needs is urgent, specialist legal advice.

A London divorce settlement might give her many millions: a house, school fees and maintenance until the children are adults, or even indefinitely. An English court may well disregard a prenuptial agreement, particularly if one of the parties did not have independent legal advice. And it will tend to care more about immediate needs than about whether assets were acquired during the course of the marriage, or predate it, or are the result of an inheritance. All assets are likely to be divided. If the wife is lucky, she may even be able to collect her share.

In the wife’s native France, things will look very different. In her favour is that conduct counts—so adulterous spouses will be penalised. In most other Western countries, divorce courts have given up attributing blame. Even domestic violence is often ignored, though it still counts heavily in some jurisdictions, such as Florida.

But in the typical French divorce, any alimony (also called maintenance) will be less and for eight years at most; any prenuptial agreement will be binding. Only assets acquired during the marriage are up for grabs. If, in our example, the American husband moves to France, he will be expected to play an equal part in bringing up the children—a requirement that would delight some fathers, but by no means all.

If the errant husband has the divorce filed in Texas, the tables are turned even more dramatically. The wife risks being left penniless. In Texas state law, alimony is usually minimal and temporary—though child support, thankfully, is a federal matter. In America, the law varies hugely between states. Most exclude from the settlement assets acquired before the marriage (but some don't). Most exclude inherited property (but Massachusetts does not). In most states, judges will enforce prenuptial agreements (but not everywhere).

If the Texan husband decides to file in New York, however, he may find the outcome startlingly expensive. As in some English court rulings, New York courts may award one party a share of a spouse’s future earnings—assuming that they are based on a qualification, such as an MBA or medical degree, that was earned thanks to a joint effort in happier times. Yet New York law has one big catch: unless the parties have signed a formal separation agreement it requires proof of cruelty, adultery or abandonment, whereas other states allow “irreconcilable differences” as grounds for a divorce. So binational couples in New York who want to end their marriage may find themselves unable to do it there, and squabbling about alternatives. Rules differ, too, on what constitutes residency in a particular jurisdiction. In hedonistic Las Vegas, six weeks is enough.

According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.

Who gets the children?

Cash and kids may pull in different directions. Countries that are “man-friendly” (shorthand for favouring the richer, usually male, partner) when it comes to money may be “mum-friendly” when it comes to custody. Japan, for example, is quick and cheap for a rich man—unless he wants to keep seeing his children. English courts are ferocious in dividing up assets, even when they have been cunningly squirrelled away offshore. But compared with other jurisdictions, they are keen to keep both divorced parents in touch with the children.

The children’s fate, even more than family finances, can be the source of the hottest legal tussles. The American State Department unit dealing with child abduction has seen its caseload swell from an average in recent years of 1,100 open cases to 1,500 now. In Britain, the figures rose from 157 in 2006 to 183 in 2007, according to Nigel Lowe of Cardiff Law School.

Of the cases reported worldwide, mothers are the main abductors when a marriage breaks down. They are cited in 68% of cases. Ann Thomas, a partner with the International Family Law Group, a London law firm, says child abduction has increased “dramatically” in the past three years or so. A big reason is freedom of movement within the European Union, which has enabled millions of people from the new member states to live and work legally in the richer part of the continent. That inevitably leads to a boom in binational relationships, and in turn more children of mixed marriages. Ms Thomas notes that when a relationship between a foreign mother and an English father breaks down, the mother often assumes that she can automatically return to her homeland without the father’s permission. That may be a costly legal mistake.

Tim Marrs

Most advanced industrialised countries, plus most of Latin America and a sprinkling of others, are signatories to the 1980 Hague Convention, a treaty which requires countries to send abducted children back to the jurisdiction where they have been living previously. That is fine in theory: it means that legal battles have to be fought first, before a child is moved. It is a great deal better than a fait accompli which leaves one parent in possession, while the other is trying to fight a lengthy and expensive legal battle in a faraway country.

But in practice things are very different. Views on the desirability of children being brought up by “foreigners” vary hugely by country; so do traditions about the relative roles of fathers and mothers in bringing up their children after divorce. In most Muslim countries, for example, the assumption is that children over seven will be brought up by the father, not the mother, though that is trumped by a preference for a local Muslim parent. So the chances of a foreign mother recovering abducted children from a Muslim father are slim. Apart from secular Turkey and Bosnia, no Muslim countries have signed the Hague Convention, though a handful have struck bilateral deals, such as Pakistan with Britain, and Egypt and Lebanon with America.

Japan has not signed it either—the only member of the rich-country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return. Such requests are met with incomprehension by Japanese courts, complains an American official dealing with the issue. “They ask, ‘Why would a father care that much?’” Countries edging towards signing the Hague Convention include India, Russia and mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively.

Games with different rules

Moreover, even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive. The annual State Department report to Congress on observance of the Hague Convention lists Honduras as “non-compliant” and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing “patterns of non-compliance”. Anyone in a wobbly marriage with a citizen of these countries might bear that in mind before agreeing to let the children go on holiday there.

But America is not blameless either, particularly if parents try to recover their children through state rather than federal courts, where judges may be unaware of the Hague Convention’s requirements. “Except in Florida, New York, California and Texas, a judge may only hear one Hague case in his career,” says a State Department official. Judges who get it wrong can be overruled on appeal, but it takes time and money: the Hague Convention aims to make proceedings quick and cheap, thus making abduction less likely. Whereas Britain offers automatic legal aid to the foreign parent trying to recover the children, in America they must rely on their own resources or a pro bono lawyer.

Making wily choices about possible jurisdictions is often criticised as “forum shopping”. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. As the table shows, totally different rules apply.

So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting, or even finishing, a divorce in a different country. Sorting out these cross-border legal wrangles can be colossally expensive. A tussle between jurisdictions usually starts in six figures, in dollars, euros or pounds; when all four legal bills, of both sides’ costs in both countries, are totted up, it easily shoots into seven figures. And it is hugely time-consuming. The children involved may reach adulthood before the final verdicts are given.

International attempts to tidy up the law have made some things better, but not all. The European Union (where 875,000 divorces take place each year, a fifth of them binational) introduced a reform in 2001 called Brussels II. This has largely stopped “forum shopping”, with a rule that the first court to be approached decides the divorce.

The problem with this rule is that it encourages those in troubled marriages to end them, not mend them. Even if a marriage is doomed, the trend in family law is to resolve the dispute out of court, typically through mediation. A race to issue proceedings makes it much more likely that matters will get nasty, as well as lengthy and costly. David Hodson, an international family law specialist, notes sadly that “This law works against reconciliations and resolutions out of court. Cases can be won and lost by one spouse issuing a divorce a matter of minutes before the other spouse. That must be wrong.”

Tim Marrs

The law of dirty tricks

Brussels II also encourages some less scrupulous lawyers to behave badly, urging their clients to act fast and dirtily. A London divorce lawyer recalls a case where a husband from an overseas country had acquired his wife’s European nationality by marriage, living briefly in her continental home country before moving to London. Five years and two children later, the marriage was on the rocks, with the husband away working in East Asia. Without his wife’s knowledge, he filed for divorce in her country, one of the stingiest jurisdictions in Europe (from her point of view). His only connection with it was his marriage to the wife he was trying to dump cheaply. Had the case been heard in London, where both parties had much stronger links and had owned a home for years, she would have done far better.

To avoid such cases, a further EU measure, Rome III, tried to stipulate that a marriage should be ended only by the law that has governed it originally. That works fine in similar countries where divorce rules are highly codified, precedents do not matter and judges’ discretion is limited. It already applies in some northern European countries, so that Dutch courts, for example, will apply French law when dealing with a French couple whose marriage has ended during a posting in The Hague.

But such a rule works much less well when other systems are involved. English law is much more complex, and is based on intricate precedents and judges’ discretion that cannot simply be looked up and applied. Even greater difficulties arise when couples come from more distant countries. Would a Swedish court want to apply sharia law to a divorcing couple recently arrived from Saudi Arabia? Many Swedes flinched at that. Mr Hodson complains that it would mean that “the essence of a country’s community life found in its family laws is removed and replaced by the laws of another country.” In the United Kingdom, he says, it would be “entirely against [national] law and policy.”

For richer, for poorer

Now that Rome III has been stymied, a group of nine countries, led by Spain and France, is going ahead under a provision in EU law known as “enhanced co-operation”. This allows like-minded countries to work together, leaving the unwilling behind. And still more international tidying-up operations are in the works. Another Hague Convention tries to harmonise arrangements on cross-border child-support payments—an area that tends to be a bit less contentious than divorce, where views of what is fair differ wildly.

Perhaps the biggest weakness of the system is the advantage that it gives to the richer partner when an international marriage breaks up. Experienced lawyers can operate, if necessary, with high speed to help the poorer spouse—for example, by putting the first hefty legal bill on the husband’s credit card before he is aware of what his wife is up to. In England, that may be followed by a swift move to initiate divorce proceedings, and then an emergency maintenance application that includes provision for legal costs. When the richer party has assets in that jurisdiction, a fair fight is possible. But Kerstin Beyer, a German-British divorce lawyer at the International Family Law Chambers in London, says the tables are often stacked against the poorer (and usually less knowledgable) spouse. Some husbands file for divorce abroad and simply fail to turn up at the English court, hoping that the cost and delay of enforcing the judgment abroad will lead their ex-wife to give up. A client of hers trying to gain the assets she had been awarded in Colorado was faced with a demand for a $15,000 upfront payment from a lawyer there: an impossible expense for someone of her means. Another has been pursuing, expensively and so far fruitlessly, assets in Luxembourg and Germany awarded by a London court. Pensions are particularly tricky. Some countries split them between divorcing couples as a matter of course; others regard such requests from foreign courts coldly.

More fundamentally, divorce arrangements in countries with English-style common law are still liable to be influenced by highly atypical fights between the super-rich, who can afford to take cases to the highest courts. In most marriages there is barely enough money to support one family in one country, notes Ms Spitz. Spreading that between two sides is a stretch, even without an expensive legal fight. As house prices plunge and savings shrivel, divorcing couples are fighting over a shrinking cake.