International enforcement of financial orders after divorce

Enforcing financial orders internationally after divorce, particularly where a former spouse, income or assets are overseas, is important to help secure compliance with a financial settlement, maintenance provision or other enforceable court order. The route to enforcement will depend on the type of order and the country in which enforcement is required. It’s important to understand how overseas assets are treated in divorce to avoid unnecessary complexities, delays and high costs.

This article focuses on financial orders made in England and Wales. At Ward Hadaway, our team of divorce solicitors can provide the expert legal advice you need to navigate the divorce process, including dealing with foreign assets.

What is international enforcement of financial orders?

International enforcement of financial orders refers to the legal process of seeking compliance with a financial settlement after divorce, a maintenance order or another enforceable court order when a former spouse, their income or their assets are located across international borders. It can involve recognition, registration or fresh local enforcement steps in the country where enforcement is sought, using that country’s domestic procedures to recover payments, redirect income or take action against assets.

Domestic enforcement is more straightforward because the order can be enforced through various methods and the court can be asked to determine the most appropriate method. International enforcement is more dependent on the type of family financial order, the country involved and whether a reciprocal family-law enforcement regime applies. Maintenance orders have the benefit of specific international enforcement frameworks.

The 2007 Hague Maintenance Convention applies worldwide and is aimed at facilitating recovery of family maintenance. It provides mechanisms for recognition and enforcement of maintenance obligations. It is possible to apply for a maintenance order, vary an existing decision or to have a decision recognised and enforced whether the decision was made in the requesting state or another contracting state. Generally a decision of one contracting state shall be recognised in another, provided it is effective and enforceable In the state of origin. Essentially a valid order in one contracting country will be recognised and enforced in another.

Each contracting state has a central authority whose primary function is to provide assistance in relation to applications. Most EU member states are contracting parties, and beyond the EU the USA and Norway amongst other. A full list of contracting states can be found online.

Non- maintenance financial remedy orders such as property adjustment orders, lump sum payments, and pension sharing orders are entirely different and face significant enforcement challenges abroad because they fall outside international enforcement regimes like the 2007 Hague Maintenance Convention. These types of cases are highly fact specific and the procedure will vary depending on the type of asset and where it is held.

The process of enforcing international financial orders

Enforcing a financial order across international borders requires careful planning and compliance with the legal requirements of the country where enforcement is sought. Since no single global court exists, the process can be complex. Whilst the exact procedure varies depending on the jurisdictions involved and whether reciprocal enforcement arrangements exist, the process of enforcing international financial orders typically includes the following steps.

Confirm the financial order is final and enforceable

Before any enforcement action can begin, the financial remedy order should be legally binding and enforceable. This helps establish the basis on which recognition, registration or enforcement may be sought overseas. If an agreement has not been embodied in a court order, it may be much harder to enforce internationally as part of the financial remedy process.

Establish whether the foreign country will recognise or enforce the family financial order

The enforcement process depends on the legal relationship between England and Wales and the country where enforcement is sought, as well as the type of order being enforced.

For maintenance orders, reciprocal arrangements may provide a route for recognition and enforcement in participating countries. For capital or property orders, the position is often less straightforward and may depend on local law, the nature of the asset and whether the foreign court will recognise or give effect to the English order. It will be necessary to check and ensure the law of the land will recognise the financial remedy order.

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Apply for recognition of the financial order

In many foreign jurisdictions, a financial remedy order from England and Wales may need to be recognised by the local court before enforcement measures can begin. This part of the process may include submitting:

• A certified copy of the financial remedy order.
• Evidence that the order is final.
• Certified translations where required.
• Supporting documentation showing that the parties were properly served or notified during the original family proceedings.

Then, the local court will assess whether the order meets its legal requirements for recognition.

Register the order

Some jurisdictions require a foreign family financial remedy order to be formally registered before enforcement, so that the local court or enforcement authority can use the enforcement procedures available under its domestic family-law system.

This stage helps the local court or authority confirm that the order is one it can recognise or enforce under its family-law rules, and that the parties’ procedural rights have been respected.

Begin enforcement proceedings

Once the appropriate route has been identified and any required recognition or registration steps have been completed, enforcement can proceed using the tools available in that country. Depending on local law and the type of order, this could include:

• Taking steps against assets where local family-law enforcement procedures allow.
• Seeking enforcement against property, depending on the nature of the order and the local court’s powers.
• Recovering unpaid maintenance from income or bank accounts where the relevant family-law regime permits it.

The challenges of enforcing international financial orders

Enforcing any type of financial remedy order internationally as part of divorce proceedings is highly complex and often, especially when dealing with high-conflict divorces, it can cause several challenges to arise.

• Jurisdictional issues: there is no universal family-law treaty for enforcing every type of financial remedy order, so an order made in England and Wales may not be automatically recognised or enforced overseas unless a reciprocal regime or local law provides a route to enforcement.
• Distinctions in order types: there are many different types of financial remedy orders used in divorce, with the most common ones being maintenance or capital and lump sum orders. Some foreign courts only recognise certain types of order under international treaties, while others can require costly, separate local litigation.
• Asset location: tracing offshore accounts, foreign pensions and international real estate can be difficult. Some jurisdictions may not recognise or enforce English family financial remedy orders against certain local assets, so the enforcement strategy should be tailored to where the assets are held.

Working with specialist divorce solicitors from Ward Hadaway means you can understand pensions and divorce, as well as the impact of hidden assets and divorce, and how these can cause challenges during the international enforcement of financial orders.

Ward Hadaway’s divorce solicitors can help

Navigating the divorce process is difficult for anyone, whatever the circumstances. At Ward Hadaway, we understand that rebuilding your life post-divorce after dealing with international enforcement of financial remedy orders may seem daunting.

Our divorce solicitors are here for you every step of the way to provide expert legal advice and help you in securing a financial order across borders.

Contact us for a confidential chat.