INTRODUCTION Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
division of money may reflect the societal norms of the different countries. By way of example, where there is a sophisti - cated and well-funded welfare state in which mothers are encouraged to go back to work after the birth of their child, there may not be laws for the provision of spousal maintenance on divorce because it is expected that the mother will be working anyway and supported by the State. The financial award for mothers in those coun - tries might be vastly different to those countries where it has been expected that mothers look - ing after children at home are as productive as the person who goes out to work and should be provided with support from their ex-partner to allow it to continue. There is a further fundamental difference in a number of countries around the world when con - sidering the financial consequences of a rela - tionship breakdown. In civil countries that use the Napoleonic Code or variations of it, upon relationship breakdown, the marital regime that the parties had entered into on their marriage comes to an end. And the law must regulate how the assets are to be divided according to the marital regime and whether there is any com - pensation to be paid as well as maintenance. On the other hand, in common law countries, parties do not enter into a “marital regime” when they marry. Instead, they continue to act as indi - viduals but – upon the breakdown of the relation - ship – there is an equitable distribution of assets and incomes between them to reflect the fact that the relationship has come to an end. Furthermore, in several countries around the world (including those in the EU), there is a rule of “applicable law” whereby the court may not use their own native laws to determine how
finances are to be distributed but instead may use law from other countries. If the individuals are from a different type of regime (eg, a com - mon law rather than a civil code country), then the court where the divorce is taking place will have to interpret how the different structure “works”. This may well lead to confusion and misinterpretation. Particular areas of contrast between countries, as well as those involving capital distribution, concern whether an ex-spouse should receive maintenance after the divorce has ended – and, if so, for how long – and the level of child sup - port that must be paid by the parties. These are matters in respect of which there can be sig - nificant differences between neighbouring coun - tries – for example, Scotland (where there is very limited spousal support) and England and Wales (where spousal support is much more generous). Some countries have financial structures that are embedded within them and therefore relation- ship breakdown has developed ways of taking them into account and/or dealing with them. By way of example, trust structures are more easily dealt with in common law countries than in civil code countries, where they are less common. Childcare arrangements This is one of the most important – and, at times, controversial – areas that must be resolved fol - lowing the breakdown of the relationship. This guide sets out the general rules that the court will consider when dealing with this issue, includ - ing the weight that the child’s voice has in each country. One area not dealt with in detail is the relocation of children from one country to anoth - er, which is covered in a separate guide.
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