Cross-border marriages are increasing in the EU. But what happens when couples discover that European union does not extend to the divorce courts?by Janine di Giovanni / December 15, 2010 / Leave a comment
Published in January 2011 issue of Prospect Magazine
I once had a practical Scandinavian friend. When she heard I was marrying a Frenchman, she was deeply concerned.
“I shall be married soon,” she said sagely.
“Will he be French?” I asked, because she had a history of French lovers.
She looked shocked. “Of course not. He’ll be Danish, like me.” Then she added: “It’s too complicated to marry someone outside your own culture.”
At the time, I thought my friend was overly cautious. I have spent most of my life outside my own culture, and had no problem with cross-border relationships. I am half Italian and I was born and raised in the US. I then moved to England and became a British national in my early twenties. In my late thirties, I moved to Paris to marry a Frenchman and have a child, and again changed nationalities. I now have three passports and absolutely no sense of identity.
Having spent two decades working as a foreign correspondent, I thought, rather naively, that my cultural sensitivity was highly tuned. I have lived in Africa, squatted for months in tents in Afghanistan and spent weeks on end in refugee camps in Gaza. France, I thought, with its bucolic lifestyle, great food and wine, retirement at 60, would be a breeze—the shortest cultural learning curve of my life. Also, most of my friends are from a mixed heritage: half something, half something else. It’s a rare thing for me these days to meet someone with two parents from the same nation.
Soon after my idyllic Alpine wedding, I realised I was wrong. From the shock of the French public hospital where I gave birth three weeks after my chaotic arrival, to navigating my way through the Parisian social structure, it’s been a long, hard slog. It has taken nearly six years to excise a feeling of rage simply from having to go to the town hall, armed with a battery of paperwork, to fill out tax forms. I have finally sought “acceptance” of the rigid French educational system; mothers who scream at their children if they fall down; and sharp-elbowed pedestrians with no sense of spatial boundaries who shout “Dégages!”(get lost).
All marriages are difficult, but my Danish friend was right—binational ones are even more trying. I began to realise this upon my introduction to French bureaucracy. Preparing for the wedding, I had to arm myself with all of my legal documents—plus my parents’, many of which were lost during the second world war—and have them translated from Italian and English to French. Grumbling incessantly, I had to find my father’s baptism records, a letter from a French doctor in New York saying I was fit to marry and have children, and what seemed like hundreds and hundreds of notarised forms, all of which required my signature.
This should have been a warning. A few months later, trying to open a French bank account nearly drove me to the loony bin. It took a month. And I was lucky: for some foreigners in France, it takes a year. I also realised that everyone—no matter how sophisticated or worldly they are—guards their own heritage with a vengeance. I am also guilty of this. I have never felt American, even as a child and in Notting Hill, where I lived for years, I had zero sense of identification with the Manhattan bankers’ wives who were my neighbours. Yet after becoming a French citizen, I found myself clinging like a Titanic survivor to Halloween, Thanksgiving, cheeseburgers and the star-spangled banner. I had strong aversions to foie gras, Edith Piaf and Canal+.
Some find harmony and a middle ground, as the French prime minister, François Fillon, and his Welsh wife Penelope must have done in their 30-year marriage. But it is tricky. While I turned more Anglo, my husband seemed to morph into a cross between Serge Gainsbourg and Charles de Gaulle. Even when giving birth, I was aware of the culture clash.
“Your manners!” He hissed, appalled, while I cursed and screeched and told the nurses to go to hell during my labour. Manners! Only the French could think of politesse and appearances during shock waves of agony.
“My husband tells me to put on makeup when I go out to get the newspapers,” says another English woman, married to a Frenchman for 20 years. “And that says it all for me about a binational marriage. No tracksuits allowed in Paris.”
A surprise for many of us is just how deeply culture informs not only the practical but the most intimate elements of relationships. Assumptions about everything from parenthood to meals are shaped by culture, and so is what we expect from each other emotionally, socially, even sexually. Our most basic notions of “love” and “relationship” are defined by our cultural heritage. What may begin as charming difference can become unbreachable barrier when a relationship comes under strain—and what relationship is free from strain?
Globalisation has made binational marriage more and more the norm, rather than something exotic. In the 1950s, inspired by films like Roman Holiday, a certain class of well-bred English girls set off across Europe in their smart little convertibles and ended up marrying glamorous Italian aristocrats. While exciting, life for some of these women was often complicated by cultural mores. At the time, divorce did not exist in Italy, nor would it have been socially acceptable, so they were more or less stuck.
“If I knew what I was getting into, aged 23 and besotted in love, I would have stuck to my own kind,” says one woman, now in her early seventies, who married an Italian landowner but had a long and often unhappy marriage. Equally, nearly all of the non-Frenchwomen who married Frenchmen that I spoke to for this article cited the same things: isolation, the language barrier and a sense of loss of their own identity.
Philippa, an American of Chinese origin who was born in Burma, married a Frenchman she met in Borneo. At home, she speaks English with her two children and her husband speaks French. But that doesn’t leave much room to pass on other languages and traditions, and Philippa’s children do not speak Burmese. “I don’t want our Burmese line to stop, and I am very aware and saddened by it,” she says. “But I am utterly confused at my cultural identity. When you intermarry, you lose your identity somewhat.”
With more freedom of movement across Europe, there has been a steady rise in cross-border marriages (see box, p62)—and consequently, divorces. There are around 350,000 cross-border marriages and 170,000 cross-border divorces in the EU each year—in 2007, 19,500 divorces involved Britons, the highest number after Germany (34,000) and France (20,500). This is leading more lawyers to advise couples who do not share the same passport to consider what they are getting into and to do their legal research before the ceremony.
“I advise everyone to think carefully, that this is not about getting on a plane and drinking good wine,” says Charlotte Butruille-Cardew, a Paris-based family law specialist with an international clientele (she is married to an Englishman herself). “I often tell them to write out before what they expect if things break down—financial, in terms of childcare, in terms of residence.” It is not the most romantic arrangement in the world, but “it will save a lot of heartbreak in the long run.”
It does not help that EU laws lack harmony. For example, barely half of member states honour prenuptial agreements: France, Sweden and Spain do and so may England in future in some cases, following a landmark judgment in October. There is no maintenance for divorced women in Denmark and Sweden. In France, even if a woman has been out of employment for years, she is expected to get back to work after her divorce and support herself.
And some countries, such as France, will apply the laws of the other member states—such as Ireland or Britain—in addition to their own if needed (for example, if an English couple live in France and their children were born in Britain). Other EU countries strictly abide by their own laws.
All this means divorcing spouses have an incentive to shop around for the country which gives them the most money. And this “forum shopping” has huge ramifications. One major problem is that when there are large financial gains at stake—for instance, a French couple living in Britain where the man has made all the money—a husband or wife can race to whatever country will benefit them in the long run and file there first. (In the past, England has been a much better location for a woman to get money from a wealthy man.) Europe is a bit like a gigantic Monopoly board and whoever gets to the Eurostar first wins.
Can all this be prevented? Aside from the luck of the draw, Butruille-Cardew believes prenups, communication, and most importantly “knowing what you are getting into” is the key.
Otherwise, it can be a mess. The stories of the aftermaths of binational marriages turned nasty are hair-raising. Recently, I looked at the website of MessageParis, an English-language site for mothers in the French capital—and the kind of place you go to for advice about bilingual education or breastfeeding—and found a whole section about divorce.
“An (Irish) friend has a ten month old. She was abandoned by her (French) husband during pregnancy… she faces a custody battle and wants to return to Ireland… can anyone help?”
“A French friend is separated sadly from her English husband… he lives in France and she is with the kids in England… they married in England and both are bilingual. She wonders which country will be the less ‘messy’ divorce?”
And another: “I am American, recently divorced from a Frenchman with two small kids, he also left after the birth of the second child. We are currently having custody conflict as he wants 50/50 custody and the youngest is only 18 months old…”
The cases go on and on, making one feel jumpy, at best, about the entire institution of marriage, let alone dating someone you have not known since the age of six.
“It is so frustrating for me, to see Anglo-Saxon people disappointed when they go through a divorce here,” says Butruille-Cardew. Custody is a particular problem in France, even when women have given up employment to raise their children. “Most Frenchwomen work here, and a judge will expect a woman to work after a divorce and take care of herself. For many expat or Anglo-Saxon wives, this is not in their culture. They arrive here to be wives and mothers.” It is, she adds, “heartbreaking” for them to receive garde partager (50-50 shared custody of the children) which is the norm in France. “Most judges will give it to the couple,” she says. “Even if there are many French child specialists who disagree with it.”
“In France, the law considers men and women equal,” adds Juliette Minot, another French family lawyer who specialises in international cases. “Which means that most judges will lean towards giving the mother and father garde partager.” Sometimes children as young as three are ordered to spend one week with the mother, one week with the father. It is such a common scenario in France that a recent romantic comedy, One Week in Two, was made about the ramifications of partners moving their kids across town every other week. It’s not exactly a happy or healthy scenario for a small child to be carting their backpacks to and from their alternate homes. But that is the way it’s done in France, unless the father does not want it, or he works extremely long hours.
But if he does, the mother will probably lose her custody battle no matter how hard she fights. Another lawyer told me off the record: “Look, the father can be a drug addict, an alcoholic—pretty much everything except an axe murderer—before a judge will lean to the side of the mother. It’s very much geared towards the man in France.”
“From an Anglo-Saxon perspective, for expats or British or American nationals, it’s a huge shock,” says Butruille-Cardew. “They are used to a culture of maternal preference.” This was the case with Caroline Bourke, an Irishwoman and a “farmer’s daughter” as she puts it, who married a man born in Germany and brought up in France. She went to France to work in IT, met her husband, and ended up having a child and moving with him to the family château in Normandy.
“Suddenly I was the châtelaine, which I had no intention of being,” she says. Bourke was also up against a huge cultural divide: though she had gone to France to work, she wasn’t completely fluent in the language. She felt cut off from French people and most of her friends were in the expat “bubble.” She also cites her mother-in-law as a problem—which is not a joke. “I have seen many, many cases in international marriages and divorce where the cultural problem was also the relationship with the mother-in-law,” says Butruille-Cardew. For Bourke, her isolation and lack of understanding of the French system made her feel dependent: an uncomfortable position. After things began going wrong with her husband, she felt intimidated and locked out of French law.
“My former husband knew the system, was from a powerful family, and when it came time to provide manifestations in court, he had people who knew him for years and years and could write to defend his character,” she says. “I had nothing.” She also says, in her experience, a French judge will inevitably side with the French national rather than a foreigner. “It’s what they know.” After an agonising divorce, Bourke ended up leaving her son in France with his father, and returning to Ireland to be with her family. “I needed to go home,” she said. “After the divorce, I had no income and no chance of working, so it was the only solution.” She visits her son often, and he comes to Ireland. But the situation is far from ideal and it is complicated to mother across borders. And now, her ex-husband is marrying a Chinese woman and wants to move to Asia and take their son with him.
Bourke will have to go back to court, a situation which she describes as “a nightmare.” According to EU statistics, international divorces can cost six, possibly seven figures in euros by the time a couple is finished fighting.
Butruille-Cardew says efforts are periodically made to harmonise the laws (see box below). But, as she points out, “there is no harmony on it at the moment, we all have our national law dealing with what are father’s rights, what are women’s rights.”
A French judge will sometimes let a woman relocate to her own country (after a legal battle) if she can prove that she cannot work in France, or cannot speak the language. But that often carries a heavy financial penalty—“the mother will probably have to pay all the travel fees, and the father will get access to every holiday,” says Butruille-Cardew.
With the rising pace of globalisation and more countries queuing to join the EU, the number of cross-border marriages will only increase. Everyone gets married with the best of intentions—the last thing on one’s mind walking down the aisle is divorce. But, as Butruille-Cardew and every other lawyer I spoke to when writing this article advised, putting together a well-drafted document before you tie the knot, that spells out exactly what could happen if you split, should give you some security. Although not binding, it should hold weight if you land up in court in front of a foreign judge.
“We live in a world of globalisation,” says Butruille-Cardew. “We study abroad, change country rapidly, meet a boyfriend, get married… when movement is so easy, we don’t realise that borders can cause legal nightmares.”
But this does not mean every binational marriage is doomed, or that every culturally harmonised relationship is perfectly matched. I recently saw my Danish friend again. She did marry a fellow Dane and had several children. As well as sharing a language and culture, they like the same food and the same music. Her parents love him. But they’re at each other’s throats and they’re probably going to split up. She doesn’t remember what she said to me about marrying someone of your own culture.
“I just think,” she says sombrely, “that living with anyone is hard.”
LEGAL DISHARMONY: CROSS-BORDER DIVORCES IN THE EU
The rise in marriage across borders has brought new problems—and an industry in handling international divorces. The question is which country’s law should apply. The wife’s? The husband’s? The country where they lived for most of their marriage? Or the one where they were working when they split up?
The jurisdiction can make a huge difference to the rulings that will determine the future of the whole family: which parent has primary care of children, how the assets are divided and how much maintenance is paid. England and Wales only “take into account” prenuptial contracts which are binding in the US and some of the EU. Malta does not provide for divorce at all, although it will register foreign divorces. Austria and Poland consider which spouse was to blame for the breakdown of the marriage.
The worst scenario is for the couple to fight it out in many jurisdictions at the same time, leading to prolonged uncertainty and huge legal bills. There are, however, guiding principles to try to minimise the problem. For a divorce between an EU citizen and a non-EU citizen, the courts decide where the hearing should be by looking at where assets are located, and what the outcome would be in each country.
For a divorce between EU citizens, the principle for nearly a decade has been that the first court to be approached by either side will hear the case. Perfectly clear—but it brings an incentive to rush. The spouse who waits, hoping for mediation or to save the marriage, might lose out badly. Joanne Edwards, a partner at Manches in London, says: “One of the main issues impacting upon cross-border couples is the race to issue proceedings.”
The EU sees the problem at its worst because the right to travel, live and work in other countries has facilitated cross-border marriages. Of the 2.2m marriages in the EU each year, about 350,000 involve such couples. As Manches points out: “The EU has a comparatively high divorce rate”; of the 875,000 divorces, about 16 per cent are international. In England and Wales, an estimated 24,000 of the annual 150,000 divorces are international.
Several years ago, the EU tried to remove the incentive with a proposed agreement between member states, called “Rome III,” under which courts in all member states would apply the law of the country where the couple had spent most of the marriage.
It was backed by nine countries, led by France and Spain, where legal systems are derived from Roman law and allow little room for precedent or judge’s decision. But Rome III clashes with English law, which is developed through cases. Sweden was also rattled by the notion that its courts might be obliged to apply sharia law if a spouse had come from an Islamic country. Rome III collapsed amid a level of acrimony found in the nastiest divorces.
The EU may yet revive the pact for 12 countries, though not Britain. Pressure for harmony is rising anyway. On 20th October, the British supreme court ruled that the prenuptial agreement between Katrin Radmacher, a German heiress, and her French ex-husband, was legally enforceable. This significantly raised the legal status of such agreements in England, even though they will not be binding unless parliament passes a law.