Enforcing against international assets in divorce cases
It is possible to enforce awards against international assets in foreign countries. How this is done, and how easily, will depend on what country the assets are located in and what agreements England has in place with that country.
How do I enforce against assets in Switzerland?
Generally speaking, foreign divorce orders can be enforced in Switzerland, though it is important to note that Swiss banks cannot be bound by foreign freezing orders made outside of the country. To bind assets based in Switzerland, additional orders must be obtained from the local courts.
How do I enforce against assets in the United Arab Emirates (including Abu-Dhabi and Dubai)?
Though in theory the UAE can enforce financial remedy judgments from England and Wales, in practice it is highly problematic. The local courts will not enforce any judgment which is in conflict with public policy, including those which conflict with sharia law. As almost all English divorce judgments do conflict with sharia principles, the courts are unlikely to enforce them.
Some lawyers believe that it may be possible to enforce an English order by registering it as a civil judgement before seeking orders in the UAE. Vardags is at the forefront of this work.
How do I enforce against assets in the USA?
The precise rules will vary from state to state as the USA has a federal legal system. In most cases, however, it will be necessary to file a suit for enforcement at the local district court. Under the principles of comity, the US courts will, generally speaking, enforce foreign orders that come from “a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries”. England and Wales is generally considered such a country for matrimonial orders.
There is therefore a good chance that a US based court will be willing to enforce a court order made in English financial proceedings.
How do I enforce against assets in France?
France is part of the European Union, and so is subject to European law on the enforcement of judgments throughout the European Union. This means that judgments can be enforced in France without the local court reviewing their substance. It is simply an administrative exercise between the court services in both countries.
That said, relief can only be obtained through the domestic mechanisms. A French court can only use its existing powers to enforce a judgment, so if some remedy is not available in France (for example varying a trust) the French court will not be able to effect this.
It remains to be seen how this will be affected by Britain's decision to leave the European Union. The regulations will remain in place until the country formally leaves the EU.
How do I enforce against assets in the BVI?
Under s.3 of the Reciprocal Enforcement of Judgments Act 1922, orders from an English court may be registered and enforced by a simplified process, unless contrary to public policy. Non-money judgments are not directly enforceable.
Under s 83 A of the Trustee Act, however, trusts based in the BVI are protected by so-called “firewall” legislation and cannot be varied or amended by foreign orders.
How do I enforce against assets in the Cayman Islands?
In the Cayman Islands, judgments can be enforced through the Administration of Justice Act 1920 on the basis of reciprocity, provided that they are not obtained by fraud and are not contrary to Cayman public policy.
With regards to trusts, however, Cayman Islands Trust Law s91 and s 93 set out “firewall” provisions which expressly exclude trusts from variation under a claim arising from matrimonial proceedings in a foreign country.
How do I enforce against assets in Australia?
Judgments from England and Wales can be registered in Australia under the Foreign Judgments Act 1991. Australia and the UK have a reciprocal arrangement for the enforcement of judgments, and so most judgments for payment of money can be enforced there.
A registration application can be made on an ex parte basis, with the respondent then being served a Notice of Registration. The respondent has 14 days to set aside this notice – if they do not apply in that time, the applicant can proceed to enforcing against the defendant’s assets. This will allow the Australian courts to use their usual methods of enforcement to enforce the award.
If you would like to know more about the issues covered in this guide, Vardags offers a free consultation to qualifying individuals.
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