Throughout this series, I have discussed what Xabier can do to prevent the divorce and financial claims from being determined in England (a priori, he could have signed a post-nuptial agreement; a posteriori, he can challenge whether England is the most appropriate jurisdiction for the case), and I have also gone through the consequences for Xabier if these steps are unsuccessful. But what would happen if Xabier is successful, i.e., if the divorce and financial claims do move to and are determined in Spain? Would that necessarily mean that the parties' separation of assets will prevail? Would Sara be bound by Spanish law as the law that will decide her financial future, with no input whatsoever from English law?
Unfortunately for Xabier, the answer is no. Not many things are final and definitive when it comes to family law. There are a few cracks through which English law could squeeze through.
Potential influence of English law on maintenance claims
Firstly, there is the issue of Sara's spousal maintenance and Iker's child maintenance. The Spanish court must apply whatever law the 2007 Hague Protocol says is the applicable law in matters of maintenance, because Spain is a signatory of that protocol. And the protocol dictates that the general rule for maintenance claims is that they will be subject to the law of the place of habitual residence of the creditor. This means that, if Sara decides to stay in England, English law should apply. Although there are some exceptions to this general rule that may allow Xabier to break free from English law, there is a clear risk for him in the event that Sara refuses to return to Spain.
Secondly, Sara could try to reopen the financial claims in England even after the Spanish courts hand down a final judgment. How is that even possible? Well, in short, because English family law is quite sure of its superiority and fairness. So, even if Xabier's challenge to the jurisdiction of the English courts is successful and the proceedings end up in Spain, if Sara is not satisfied with the Spanish order/judgment because she finds it unfair, she will be able to reopen the claims in England – or at least, she could try to. If successful, this would allow the English court to make a new order, essentially overturning or ignoring the Spanish outcome.
For that possibility to emerge, the English courts only ask that one of the parties is habitually resident or domiciled in England, or that there is a property in England that at some point served as the family home. As some English family lawyers say, who are very critical of this type of application, England has crowned itself as a worldwide appeal court in matters of financial claims after a divorce.
Pre-emptive actions and freezing injunctions
But things go even further than that. Let's say that Sara is planning to make this application to reopen her financial claims in Spain, but she hasn’t made it yet. If she believes that Xabier is about to dispose of some asset or another in a way that may prejudice her future claim (for example, he is going to gift an asset to a third party), she can ask the court to issue a freezing injunction.
Eventually, if Xabier's assets are located in Spain, Sara will need to enforce all this in Spain. Will Spain look with kind eyes at a court order that is patently incompatible with a previous order made in Spain? Probably not. But if Xabier has assets in England or elsewhere, and even if his challenge to the jurisdiction of England goes ahead, he must be made aware that there are various risks waiting for him along the way in this journey.
The lesson here is clear: in the complex world of international family law, the match isn’t over until it's truly over.
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