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I’m considering leaving my country. I’m married to a person who I cherish and love and we got married in our country of birth in a legally recognized, religious marriage and what I mean by that that we both have a religious heritage, we registered our marriage legally in our country of birth and residence, and it’s not a civil marriage.

We are both educated and we are both employable and employed, but one of us has a far greater work experience which made them have better pay and a greater amount of assets mostly acquired before marriage. In our country of birth, co-habitation is illegal and lengthy engagement periods aren’t culturally accepted, and the burden of the marriage expenses falls on the male spouse to deal with. The law “mainly” states: what’s mine is mine, what’s yours is yours, and what’s ours is ours especially when assets were acquired before marriage including the matrimonial house. Also, our country of birth doesn’t recognize civil divorce if the marriage wasn’t civil in the first place.

My questions are the following:

  • What happens if one of us applies for divorce outside our country of birth?
  • What happens if one of us applies for divorce in our country of birth?
  • How property is divided especially pre-marital assets such as pensions, house brought into marriage, saving accounts, inheritance / expected inheritance, and investments?

    Our marriage is doing well but it is still young, and even though we both trust each other but we both don’t believe in absolute trust due to life lessons. Another reason I'm asking this question that I would have entered into a domestic contract before marriage (pre-nup) if my country of birth laws were different to protect any assets I brought into the relationship.

    Thank you very much for your help :)

    (Clarifications) : A court will consider our relationship a marriage but our country of birth will not consider the civil divorce legal. I'm concerned with assets acquired before marriage, the matrimonial house which was acquired before marriage, the pensions as one of us has a bigger pay check, and whether a court of law in our new country take into consideration the laws of our country of birth when dividing property especially that we entered this marriage while implicitly agreeing that we have separate property before and during our marriage.

    In our country of birth, property is what you have your name on it which requires no domestic contract to be signed before marriage.

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    "we got married in our country of birth in a legally recognized, religious marriage and what I mean by that that we both have a religious heritage, we registered our marriage legally in our country of birth and residence, and it’s not a civil marriage." This is confusing. It is difficult to imagine how the first statement in bold would be inconsistent with the second statement in bold. But, the heart of one of the questions you are asking is basically whether you are married for the purposes of the new country's laws. Also, we need to know the country of birth to know its effect there. – ohwilleke Feb 1 at 18:51
  • "A court will consider our relationship a marriage but our country of birth will not consider the civil divorce legal." Still confusing. Is there divorce at all in the country of birth? If so, what kind of divorce? Islamic law divorce perhaps? – ohwilleke Mar 27 at 18:15
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What happens if one of us applies for divorce outside our country of birth?

Are You Married?

If one of you applies for a divorce outside the county where you got married, the court in the country where you are applying for the divorce will first ask: "Are you legally married?"

The court will look to the country where you got married (and any other country where you lived after you got married) to determine how to answer this question.

The court could (1) conclude that you are married because it finds that your were legally married in the place where you had your religious marriage for its purposes, or (2) the court could find that when you moved to some other country before moving to the country where you are seeking divorce, that the intermediate country recognized "common law marriages" (in a common law marriage country you are married if while living there you hold yourselves out to the public as married, view yourself as married to each other, and have consummated the marriage or cohabited), and that you became married then, even if your original religious marriage wasn't a legal marriage. Common law marriage is recognized in some U.S. states (including Colorado, where I live) and existed in Scotland prior to the year 2006.

I personally am not able to clearly tell from the facts in the question whether or not you would be considered currently married in Australia, Canada or NZ based on the laws of the country where you had your religious marriage.

If You Are Not Married

If the court determines that you are not married, your property will be divided and custody of children and child support will be determined as it would be between unmarried people in the country where the application for a divorce was made and a divorce will not be granted because the court will find that you weren't married in the first place.

When people are not married, property is usually divided based on formal legal title to property, usually there is no alimony, usually custody is handled in accordance with the best interests of the child, and usually child support is determined based upon local law based upon the economic means of the respective parties and the nature of the custody arrangements.

Some of the important qualifiers to these general rules are that:

(1) some of the jurisdictions in question recognize a concept called "putative marriage" which afford the rights of a married person to someone who isn't legally a spouse but who believed in good faith that they were a spouse that accrued through the time when the person seeking relief discovered that he or she wasn't actually married (often this isn't formally recognized in statutes but is an equitable remedy provided for by case law);

(2) some of the jurisdictions in question give people who have cohabited (particularly if they raised children together while doing so) some statutory legal rights beyond mere strangers vis-a-vis each other that arise from what is sometimes called their "de facto" relationship even though it wasn't a marriage relationship, if court action is taken fairly swiftly following a breakup (e.g., Australia's de facto relationship law is explained here and varies somewhat by province, and Canada has similar laws in most provinces);

(3) some of the jurisdictions in question do not recognize putative spouse rights, or de facto relationship rights, but will honor verbal or written agreements between two people in a domestic situations upon which the person seeking relief relied or for which the person seeking relief provided some benefit to the person from whom relief is sought, under contract law. But, if the sole benefit provided in exchange for the promises was sex (this is called a "meretricious" relationship) then the contract will not be enforced on the grounds that it was an illegal contract (this is usually a case law development interpreting existing contract law, rather than a statutory legal doctrine).

If You Are Married

If the court finds that you are married, then a divorce proceeding will follow according to the same laws that would apply if you had originally been married in the country where you are seeking the divorce (except that if you lived in a country with community property when some property owned by the couple was acquired that community property will be treated as owned 50-50 by the two of you regardless of how that property is titled).

Typically, this ends the marriage and also involves an equitable division of marital property, an alimony award if appropriate for an amount and a duration based upon the circumstances, custody arrangements for the children according to the children's best interests, and child support based upon the respective economic means of the parties and the custody arrangement which is put in place.

Also, Australia and New Zealand and Canada all have a waiting period from either separation, or from filing a divorce, before a divorce can be made final in some circumstances.

Country Of Birth Rules

What happens if one of us applies for divorce in our country of birth?

You have stated that:

our country of birth doesn’t recognize civil divorce if the marriage wasn’t civil in the first place.

and, that you didn't have a civil marriage. But, you don't identify the country of birth which is important because we need to know what that country's laws are when you have a religious marriage which is legally registered but not a civil marriage. The answer is both non-obvious and is not necessarily the same from country to country.

Some countries would say that you are still married in that situation and deny you a divorce but might possibly allow a judge to decree arrangements for a legal separation, or allow you to seek to have the religious marriage annulled if it was in some way defective.

Other countries might treat the two of you as if you had never been married, in which case the law pertaining to unmarried couples would apply, apparently along the lines that you suggest in your question.

Also, some countries (e.g. India and Israel) have different marriage laws for people who belong to different religions. So, it may be necessary to know your religion as well as the country where you got married to determine what would happen in the country where the two of you married.

But, without more details, this question is impossible for anyone to answer accurately.

Property Division Rules

How property is divided especially pre-marital assets such as pensions, house brought into marriage, saving accounts, inheritance / expected inheritance, and investments?

Mutual Agreement

All of the jurisdictions mentioned allow the two of your to come to a mutually agreed separation agreement made with full disclosure of the financial facts so long as it does not cheat the interests of your mutual children, in lieu of having a court decide these issues. A mutually agreed separation agreement does not have to divide property in the same way that a judge would have divided the property according to local law. But, if there is not a mutual agreement a judge will decide how to divided the property of the couple

Judicial Division Of Property In Separate and Community Property Systems

All of the jurisdictions mentioned, if they find that there was a legal marriage, or that putative spouse rights apply and that there was not a mutually agreed separation agreement, would have a a judge make an equitable division of marital property following a hearing at which evidence would be taken.

To the extent that the property of the respective spouses is treated as being part of a "separate property system", that is basically it (although there is some case law guidance about what is fair and what is not). The judge is charged with "doing the right thing" as long as it is fair and equitable.

To the extent that the property of the respective spouses is treated as being part of a "community property system" (e.g. the property was acquired in CA or Spain and the court recognizes the community property system status of property acquired in that time period), property is divided into the separate property of each spouse and marital property. The separate property of each spouse stays the property of that spouse and the marital property is divided between the two of them "equitably", i.e. in a fair manner starting from the initial assumption that 50-50 is fair but subject to arguments that this should be modified for some reason (e.g. to provide "lump sum" alimony). In a community property system, property owned before the marriage or acquired by gift or inheritance is separate property, and property acquired during the marriage or as a gift to the couple or co-mingled by the parties with marital property, is marital property. The treatment of appreciation in separate property is a fine point that varies considerably. Pension rights are usually considered property that can be divided if they are marital property.

None of these jurisdictions would treat an expected inheritance as property to be divided, although an expected inheritance might be considered as one of many factors when making an alimony award.

But, given that there are many different possible jurisdictions involved and that there are already a lot of uncertainties in this question (like what property was acquired in which countries), it doesn't really make sense to get to detailed about what the particular property division rules apply.

UPDATE (March 27, 2019):

[Will] a court of law in our new country take into consideration the laws of our country of birth when dividing property especially that we entered this marriage while implicitly agreeing that we have separate property before and during our marriage[?]

Usually not (in the absence of a marital agreement in writing complying with the new country's laws).

But, some places that have separate property will recognize the community property/separate property status of property acquired in a community property jurisdiction.

In the U.S. the treatment varies from U.S. state to U.S. state and is not uniform nationally.

I'm concerned with assets acquired before marriage, the matrimonial house which was acquired before marriage, the pensions as one of us has a bigger pay check,

These details vary considerably even within community property jurisdictions.

For example, in some jurisdictions, appreciation in separate property and income from separate property during the marriage is separate property, and in other jurisdictions, appreciation in separate property and income from separate property during the marriage is community property.

The place where the divorce takes place usually controls, although some jurisdictions look to the location of the property when acquired or when owned.

Almost no Western jurisdiction in the 21st century cares which spouse had a bigger paycheck during the marriage. The "partnership theory of marriage" is widely practices and assumes that both spouses contributed equally to income from work and income from community property during the marriage.

In our country of birth, property is what you have your name on it which requires no domestic contract to be signed before marriage.

This is true in most community property jurisdictions including most with "civil law" systems based on Continental Europe's legal codes.

Also, bringing in a domestic contract now might breakdown our relationship because the other side may see it a sign of lack of trust.

True.

I personally don't find it fair to divide an account of a million dollars with someone who didn't work hard for it and/or inherited it.

In the 21st century, almost every Western country in the world (and many non-Western countries) disagree with you, although many divorcing husbands and ex-husbands do agree with you.

  • Given the OPs first paragraph, why would there be any doubt as to their legal status as married? That seems to describe the universal conditions for recognizing a legal marriage. – user6726 Feb 1 at 19:57
  • The OP states: "I’m married to a person who I cherish and love and we got married in our country of birth in a legally recognized, religious marriage and what I mean by that that we both have a religious heritage, we registered our marriage legally in our country of birth and residence, and it’s not a civil marriage. . . . our country of birth doesn’t recognize civil divorce if the marriage wasn’t civil in the first place." It isn't clear if one can get divorced in a civil marriage but must stay married forever in a religious one, or it a religious marriage doesn't have legal effect. – ohwilleke Feb 1 at 20:00
  • @user6726 Continued . . . Most civil law countries follow the latter rule (i.e. a religious marriage that isn't a civil marriage has no legal effect). But, some places in Asia and Africa, at least for members of some religions, follow the former rule (i.e. a religious marriage is forever and can't be legally terminated). The question, because it starts with this statement about the marriage being religious but not civil, seems to imply that a big part of the question is the legal status of having one kind of marriage but not the other when one is in another country. – ohwilleke Feb 1 at 20:04
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    @user6726 in Austria, for example, most people get married in a church by the priest. But priests are not marriage celebrants so the also have another ceremony (before or after) in the Rathaus- if they don’t do this they are not legally married. – Dale M Feb 1 at 21:22
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    @DaleM Exactly. And, the most common name for the ceremony that has legal effect in the Rathaus is "a civil marriage." – ohwilleke Feb 1 at 22:28
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Marriage in the conventional sense is a fairly universal concept. If you're married in one country, you're married in all countries. For example, polygamy is illegal in the US, and it is still illegal if your other wife is in a different country. However this is for a specific, official kind of marriage (which almost every government regulates officially). I would say the rule of thumb is that if your ID or passport says married, you'll be considered married everywhere.

There are other kinds of "marriage" where your ID card will say single but you are effectively married. In the US, common law marriages are an example. In some US states, just moving in with your girlfriend can make the government consider you married, and let your girlfriend sue you for alimony when you break up - funnily enough people only find out they've been "married" all this time when they have to show up in court. Other countries (like yours) may recognize religious marriages. In these cases it really depends. You'd have to see if the country you're moving to also recognizes that particular type of marriage, or at least honors the recognition of your home country. If there is legal precedent you'd go by that. If not, you'd have to make an argument to the divorce court. However, this is not your situation: You say

we registered our marriage legally in our country of birth and residence

from which I'm assuming you are legally married and indicated your status as married on all paperwork. In which case it is irrelevant that you originally got married religiously, most governments will care about the legally registered part and that will count as a bona fide marriage.

Of course these might not apply in countries with very unusual legal systems. For example if you go to a theocratic country (eg. governed by Sharia law) things might be different, you'd have to check that particular country (or at least specify it in your question). If you move from one very religious country to another very religious country that is of the same religion, or an opposed religion, there might obviously be complications. Again, I think such countries are rare and obvious, and you don't specify them in your question, so I'll assume it doesn't apply to your case.

Also, divorce doesn't necessarily involve court proceedings. You can simply sign the paperwork (which will specify how assets are divided or at least say that you've agreed on how to do it) and be done with it. People often end up going to court because they can't agree on what counts as an equitable terms, which is why they go to the divorce courts. I'm assuming that either your country requires all divorces to be reviewed by a court, or you are asking about being sued for divorce, since otherwise the answer is kind of obvious.

What happens if one of us applies for divorce outside our country of birth?

If you are residents of that foreign country in some sense, you will probably be divorced according to the laws of that foreign country. Property will be divided according to the foreign country's laws, although if you have property in your home country, the foreign country may have trouble finding out about them or enforcing their redistribution. Your home country will usually recognize the divorce, but might require onerous paperwork (along with expensive notarized translations, etc.) - which could be an issue for example if you are trying to marry again in your home country and need to prove that you are divorced. Generally, I suspect paperwork will be a nightmare, requiring constant back-and-forth with bureaucrats in your home country, which drags everything out and racks up legal fee bills for your divorce lawyer, not to mention the whole issue of translations. In rare cases, the home country might refuse to recognize the divorce, in which case you will have to live with the huge headache of being treated as single in one country and married in another until you can resolve that situation.

What counts as being a resident, for purposes of divorce? If you have permanent residence, that definitely counts. If you just went there for a week-long trip on a tourist visa, and you decide during your trip that you suddenly want to get divorced, the court will probably refuse to see your case and tell you to go apply for divorce in your home country. This is assuming no unusual complications - for example if you are being abused by your spouse, and during the trip request asylum as well as a divorce, there might be special laws covering that. But that is not the sort of situation one imagines when talking about a simple divorce. Anything less than permanent residence, but more than short vacations (such as students or temporary workers) will depend heavily on the local laws and the attitudes of the court.

What happens if one of us applies for divorce in our country of birth?

You will go into divorce proceedings according to the laws of your home country. If you are not present while your spouse applies for divorce, then the case might be resolved to your disadvantage, or you might be ordered by the court to appear and incur additional penalties for failing to. Assets will be divided according to the court's decision, although if you have assets in foreign countries, the court may have difficulty enforcing their ruling on those.

The foreign country will recognize this divorce unless there is an exceptional situation, such as the divorce being considered unjust (usually not the case). The foreign country might take time to find out about it, so you could conceivably claim to be still married, but that would be fraud and you would get punished when eventually discovered.

Our marriage is doing well but it is still young, and even though we both trust each other but we both don’t believe in absolute trust due to life lessons.

Well, I would say if you don't really trust the person, you shouldn't marry them, but it's not my place to tell you how to live your life. However, if you want detailed information how divorce is handled, you have to consult with divorce lawyers in both your home country, as well as the country you are going to. On this site we can only give general answers, and the specifics of your situation can make a huge difference in this case.

I would have entered into a domestic contract before marriage (pre-nup) if my country of birth laws were different to protect any assets I brought into the relationship.

You can enter a post-nuptial contract as well, it's not that different from a pre-nup. Keep in mind however that in some countries such as the US, those contracts may not hold as much weight as you think. It's not unheard of for courts to simply tear up the pre-nup and just rule however they want anyway. The divorcees can always claim the pre-nup was signed under duress or is unfair, which would invalidate the contract. Some divorce courts have strong opinions about what is considered a fair divorce, and if the court is intent on distributing your assets a certain way, the pre-nup isn't going to stop them.

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