French property and that the documentation is suitably worded. Such wording must
expressly indicate who is responsible for which
costs, bearing in mind the high level of tax
that might be due, as well as legal fees and
expenses in France.
Not many people follow the example of
the actor, Michael Douglas and his ex-wife,
Diandra, who, in a high-profile divorce some
years ago, agreed to maintain joint ownership
of their Mallorcan home post-divorce. It is
more common for a couple’s assets to be split
and for one party to transfer his or her interest
in a house to the ex-partner, as with Madonna
and Guy Ritchie. This Anglo-American former
couple, married in Scotland, had overseas
assets, including real estate in the U.S. and
UK. They agreed that Mr. Ritchie would retain
Ashcombe House and the Punchbowl Pub in
Mayfair, whilst his ex-wife would retain their
Beverly Hills mansion and New York penthouse.
Not just for celebrities
These days, though, it’s not just celebrities
who experience international divorces. And
whilst most people’s property values may
be somewhat lower than Mr. Douglas’s or
Madonna’s, it does help to have, as early as
possible, one or more independent valuations
carried out by reputable experts and which
both parties will accept. Depending on the
country in question, this is not as easy as it
ought to be, so links with professional overseas property contacts can be invaluable.
Other formalities required normally involve
providing an original, sealed copy of the decree
absolute/divorce documentation, together
with a translation into the local language, often
by a professional or court appointed translator.
A special certificate or affidavit confirming that
the decree absolute has been granted, and
that the court has endorsed a financial settlement dealing with the overseas property, may
also be required. The burden of the additional
time, cost and effort this involves can be eased
if one knows whom to contact.
Should one of the divorcing parties fail to
respect a court order – for example, re-selling
to a third party and distributing the proceeds
of sale – further difficulties would arise. Before
a local lawyer can comply with a foreign court's
instructions, he or she would need to be satisfied that the court order is valid and binding. If
disputed by one of the principals, further steps
may be needed. For example, one might have
to obtain an order at the local overseas court
to enforce the foreign order’s provisions. This
could cause a delay in the transfer of the property or funds, and add to the costs.
The differences between national legal systems
can result in unexpected and unwelcome
consequences for an international couple, and
the potential outcome in different countries
varies enormously. Where a couple were
married, and under what property regime, how
the property was acquired and the title registered, can all restrict what steps may be taken.
Many civil law jurisdictions (eg. France) traditionally treat married couples from common
law jurisdictions (eg. the UK) as having been
married under a regime of separation of assets.
For English and Welsh couples with overseas
property, this may be interesting to note as
our legal regime would arguably appear to
be more similar to one of community for the
matrimonial home and deferred community
for other assets, rather than separation of
property. There may be local laws preventing a
forced sale altogether in certain circumstances.
Matrimonial property regimes and contracts
are outside the experience of many UK lawyers
but may well bind divorcing international
couples. They may have chosen to adopt a
particular regime. For example, in their country
of birth, residence, location of the property
www.theaddressmagazine.com
55