Divorce From a Foreign National

If you are in a relationship with a foreign citizen, you may want to learn about the rights and responsibilities that you have under international family law. The Hague Conference on Private International Law has attempted to harmonize rules on marriage, divorce, and child custody across national boundaries.

In general, nations will recognize marriages that are validly performed in other nations. This may be more complex in the area of same-sex marriage, however, which many countries still do not recognize. A same-sex couple in a country that does not allow same-sex marriage may travel to another country to get married, but it is far from certain whether their marriage will be recognized as valid when they return to the country where they reside.

Divorces also are generally recognized as valid across national boundaries under the Convention on the Recognition of Divorces and Legal Separations. There may be some exceptions when recognizing a divorce would be incompatible with a nation’s public policy. A nation where the divorce was not granted might not recognize its validity if it appears that one of the spouses did not have a fair opportunity to assert his or her rights during the divorce proceeding. A divorce also might not be recognized if the spouses were citizens of a state that did not allow divorce at the time.

Property Division

The Convention on the Law Applicable to Matrimonial Property Regimes allows spouses to choose which laws will determine how property will be divided when their marriage ends. A couple can choose the law of any country where either spouse is a citizen, the law of any country where either spouse has a primary residence, or the law of any country where one of the spouses has started a new primary residence. If the couple does not make a choice, their marital property is divided according to the law of the first state where they had their primary residence after marriage.

The problem is that this Convention has not been widely ratified, so its rules do not apply broadly. Courts have needed to find creative solutions when marital property is in a country where neither spouse is a citizen or a resident, since the court does not have authority over this property. Sometimes, when one spouse controls these types of assets, the court simply will order that spouse to compensate the other spouse with assets over which the court does have authority.

Child Custody and Child Support

Uniform laws on child custody have not yet been developed, but the Hague Conference on Private International Law has addressed the issues of parental child abduction and child support. Regarding abduction, states have agreed that a child should be returned to his or her country of primary residence if one parent takes the child away from that country. This means that nations will cooperate in restoring a custody arrangement after an attempt to violate it by one of the former spouses.

The Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides some transnational rules on child support. Former spouses who had been ordered to pay child support sometimes dodged these payments by moving to other countries where they could not be reached. This Convention responded by requiring nations to enforce child support agreements created in other nations, which means that people who move across borders will need to keep up with their support payments.

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