High Net Worth couples are increasingly relocating
internationally for tax reasons as much as personal motivations
such as wealth protection and family motivations.
What rarely crops up on the couple's agenda is the effect of
such a move on their underlying property relationships. In the
Anglo-American jurisdictions, matrimonial property régimes are not
fully understood, and are frequently degraded to the legal status
of a "pre-nup". That does no credit to either legal system, as
there is frequently a sting in the tail when one system assumes
that it applies without taking the other into account. In fact
looking at the Globe, the areas where there are matrimonial
property régimes in force are the 2/3 majority of the areas
influenced by the English, -American and Australian systems.
Nowhere is this more apparent than in the issues that frequently
follow such moves. One symptom or consequence of such a move can be
that one of the couple becomes alienated in the new
jurisdiction. The breakdown of the marriage entails the subsequent
international settlement of the property rights between the
separating spouses. Where one has taken tax or asset protection
precautions such as settling offshore trusts and similar
structures, the issues can rapidly become extremely aggressive and
expensive.
So, before moving to the United Kingdom, those couples who are
conscious of their property rights and entitlement need to review
that area of their life, and take advice from a lawyer competent in
both methodologies as to how to remodulate their matrimonial
régime, to ensure that what they intended to be their property
relationship is maintained, rather than entirely reviewed and
readjusted by a judge in the Family division; operating on entirely
different principles..
On a broad brush basis, the English Family Division takes
"fairness" in divorce proceedings, in what is called ancillary
relief as meaning a 50/50 split of all of each spouses' assets,
irrespective of the allocation given under their matrimonial
property régimes, which despot recent caselaw is still the main
principle. They also look to the maintenance of the weaker
spouse's living standards in their assessment of fairness.
This generally means the purchase of a house or flat in the area
where the Children are being educated or brought up, and the income
necessary to support such a standard fo living
These issues have to be very carefully handled, as in some civil
law jurisdictions "ordre public" looks very askance upon
arrangements for a divorce settlement being included in a
matrimonial property régime, preferring that any adjustment on
divorce or death take place on a separate liquidation basis.
That is why advice is needed to take effect on the move
In short, couples moving from Germany, Russia, Switzerland or
France to the United Kingdom or another anglicised jurisdiction
need to take advice on their property situation and make
adjustments generally before they move.
Overseas Chambers, and its founder, Peter Harris is
ideally situated, in Jersey, to address all sides of the question
of any move.