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EULawyer
EULawyer, Lawyer
Category: Republic of Ireland Law
Satisfied Customers: 237
Experience:  Titular Attorney (Avocat) at Ioan-Luca Vlad Law Office
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This is my situation which I am quite anxious about and

Customer Question

This is my situation which I am quite anxious about and trying to figure out what to do next. I left my husband one year ago - he had a very bad temper and whilst never physically abusive, emotionally it was very difficult and I just couldn't do it anymore as he was unprepared to look at his behaviour and manner. He also found things difficult I think and was glad I ended it. We agreed at the time that we would get on with our lives independently and sell a property we own together 50/50 as it's in both our names. I invested over 100,000 Euros in this and he invested 40,000 euros and did all the renovation work. this property is in another European country, which he is from and in which he now lives.
When I initially sought legal advice, my solicitor advised that if my husband divorced me in that country, that divorce would be quicker than in Ireland and also could be recognised here under Brussels 2. One year later, my husband has done nothing and does not reply to emails or phone calls when I try to find out what is happening about house sale and divorce - I get a short reply of I'm working on it, I will update you shortly or I won't drag things on forever but I’m getting increasingly anxious and frustrated. I have offered him the option of buying my share of the house and no reply to this either. I know when i spoke with my solictor originally, she said if the divorce was easy and straightforward, we'd be looking at about 3k but if it got difficult and was between two locations, it would be more like 50k. I don't have this kind of money and even if the house was sold as a result of proceedings, that would be most of my house sale funds gone to the legal process, so I’m feeling stuck and powerless. We have lived apart for the last 14 months and it’s only in the past 2 months, he has become totally uncommunicative and I don’t want to jump the gun on what may be a temporary blimp. I’m feeling absolutely paralyzed and afraid and would welcome some guidance.
My questions are 1. if i start judicial separation proceedings here and he refuses to engage, what happens then ? 2. I work full time and I rent a property here, he lives a self sufficient lifestyle there by choice, growing vegetables and keeping guests in the house, is it possible he gets to keep the house even though I made such an investment ? He has always lived in this way in one way or another and has no interest in mainstream society. 3. Should I just walk away and give him the house because I'm terrified I will end up with a large legal bill and no house funds to pay it ? 4. If it ends up being resolved and the house is sold, is it possible that i contract my part in this from Ireland and not have to travel to the other country to do this as I really don’t feel able for the confrontation.Thank you.
Submitted: 6 months ago.
Category: Republic of Ireland Law
Expert:  EULawyer replied 6 months ago.

Welcome to JustAnswer!
As your European Law expert, I am reviewing your question and will try to find a good answer for you.

Expert:  EULawyer replied 6 months ago.

Dear Madam,

Thank you for your question. I am very sorry for your situation, and will try to answer the best I can.

However, I cannot say anything without knowing the exact country you are referring to. The reason is divorce and matrimonial property law varies between the countries, as does my knowledge. Depending on where your husband is, I might be able to provide more in-depth information.

Looking forward to your reply,

Dr I L Vlad

Customer: replied 6 months ago.
Germany
Customer: replied 6 months ago.
We married in Ireland and bought property in Germany - he lives there now and I'm in Ireland and the property is in both our names.
Expert:  EULawyer replied 6 months ago.

Dear Madam,

Thank you for your reply. The answer is as follows:

1. Place for divorce: the applicable law is Regulation 2201/2003. According to it, the preferred place for divorce (i.e. the state whose courts have competence to hear it) is Ireland, as the place of your last common habitual residence. However, there is indeed the possibility of getting it in Germany. Either way, it can be recognized in the other country under the Regulation.

2. It is true that the German divorce would be quicker. The problem is as follows:

-> the German divorce would be judged according to German private international law, of marriage and of matrimonial property. This is stated as follows: "In the absence of a choice of law, the spouses’ common national law at the time of the marriage shall prevail. If the spouses do not have the same nationality at that time, the law of the State in which they jointly reside shall apply. Alternatively, the effects of the marriage shall be subject to the law with which the spouses are jointly most closely connected with (art. 15 par. 1 EGBGB[the Introductory Act to the German Civil Code] in conjunction with art. 14 par. 1, 1-3 EGBGB)." In the hands of a good lawyer, this provision can mean anything, including that your German property is owned equally, or is owned separately in unequal shares. The intended purpose of the provision would be to apply Irish law, but the result is not guaranteed.

-> the costs in Germany for a family trial of a value of around 140.000 EUR are around 1.300 EUR for the court tax, and the winning party may claim from the other lawyer costs of another 1.300 EUR, to which one must indeed add perhaps up to 3.000 EUR for practical costs (translations, certificates of custom to prove Irish law etc.). However, if you chose to do it in Germany, the major cost for you would be the local attorney (and of course it is very hard to actually find one who will work for the statutory 1.300 EUR recoverable amount), one who speaks English and knows private international law (most attorneys, whatever the country, don't).

3. If you start the trial yourself in Ireland, as the Regulation entitles you to, you may have the following advantages: a) the possibility of obtaining legal aid, if you meet the criteria (see http://www.legalaidboard.ie/en/); b) a local, more accessible solicitor; c) local courts which you can understand. Also, it is highly likely that the Irish courts will apply Irish law and give you shares in the German house according to your countributions.

4. The court process supposes a summons. The summons can also be sent internationally, according to Regulation 1393/2007 concerning the service of judicial and extra-judicial documents. This means that, once he is summonsed, he must attend either directly or through an attorney. If he does not engage, the court can decide in his absence. What your local Irish attorney must do is just to ask the court to scrupulously follow the letter of the Regulation (it would be wise also to produce a sworn translation into German of the summons, even if your husband speaks English), so that, in the recognition proceedings in Germany, no contrary arguments from him can arise;

5. You should not give up, particularly because the law allows you to make this claim in your own country and courts. But remember, this is a "who goes first to the court" game. It is called "strategic divorce" or "forum shopping" and is what high-powered attorneys do. If he starts the trial in Germany, it is well started, and the opportunity is gone;

6. Once you have an Irish ruling, the court costs for recognizing it in Germany are around 240.- EUR, plus attorney costs, but in this case they are much lower, because no claims on the merits can be raised;

7. Regarding your question no. 2, the possibility is quite high in Germany, much lower in Ireland. The idea is this: before German courts he could claim that he needs the house, and is the only one who uses it in practice, and therefore he should have it in kind, and you should only get a formally determined compensation, but since there would not be a sale, the compensation would be determined at the lowest limit for similar properties in the area. The Irish court would most likely look at the amount invested;

8. Finally, whichever country it is judged in, if you do get an actual share of the house in kind, then yes, you may sell it from abroad. You must give a power of attorney to someone in Germany (must not necessarily be an attorney, can also be a property manager or intermediary) to make the actual sale in Germany, but the power of attorney can be made in Ireland, at the German Embassy / Consulate and sometimes at a notary public as well.

I hope my answers were useful and look forward to your rating, which is essential to my activity.

Cordially,

Dr I L Vlad