Frequently, we are instructed by clients who either own property overseas, or their spouses own property overseas. There is often a presumption that the English and Welsh Courts cannot deal with those properties.
This is not correct.
The property must be disclosed to the court
If necessary, a joint valuation undertaken
The English and Welsh Courts will consider the properties value when deciding how to divide the property and
The English and Welsh court can make an order which affects that overseas property
Associated costs of dealing with the sale or transfer will need to be obtained and will also be considered.
The Court can Order for the property to be transferred or sold.
The practical difficulty arises if the spouse who owns the property, refuses to comply. The courts of the country where the property is situated may or may not recognise and enforce the English or Welsh Order. Enforcement often depends on local law and any reciprocal arrangements between that country and the UK.
In practice, judges frequently deal with this by:
Ordering a spouse to sell the overseas property.
Offsetting the value of the overseas property against UK assets. This would mean that the spouse who owns the overseas property keeps it, but the English assets are divided more in favour of the other spouse
Making ancillary orders to encourage compliance. For example, the husband who owns the property overseas will not get the benefit of the share of the sale of the UK property, until he has complied with any orders associated with that overseas property.
We will always try to negotiate the resolution of financial matters, without recourse to the courts.
The courts can be, have to be, fairly rigid in their approach to the resolution of financial matters. But negation can give the parties a wider variety of solutions.
I have recently negotiated, that the husband retains the overseas property. If he is to sell or transfer it, the proceeds are divided equally between he and his wife. But, until its sale, the wife had a significant number of weeks use of the villa, each year (to stop any potential issues, the order was specific in the dates the wife would use it, the costs of upkeep etc).
When faced with overseas property complexities, there are techniques to overcome obstacles, delivering communication and agreement without recourse to the Family courts.
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