The contrast with civil law in Europe is dramatic. In California, the
spouse with knowledge of personal financial matters has the affirmative
and continuing duty of making disclosure and is at significant risk if
the disclosure is insufficient. In civil law countries, the spouse with
such knowledge has little or no obligation to disclose anything and may
play "hide and seek" with assets in a "game" in which the asset-holding
spouse can do the "hiding" and the other spouse has few methods of doing
the "seeking."
Thus, in Austria, neither the General Austrian Civil Code nor the Austrian Marriage Act contain any explicit provisions obliging the spouses to provide each other or the competent authority with information on their income and assets. If a spouse demands a certain amount, the other spouse needs to show that his or her assets are not as claimed, but there is little or no way to force a thorough tracing of assets. In Germany, Section 1580 of the Civil Code requires divorced spouses to provide information to each other as to their income and assets, and the Code contains mechanisms to compel the delivery of such declarations, but there is little that a party can do in advance of trial to probe such declarations or to search for suspected assets.
In Spain, Article 774(2) of the Civil Proceedings Act authorizes the courts -- but not the parties themselves -- to request financial information that they consider necessary either from the spouses themselves or from third parties, especially for the purpose of deciding on the economic effects of divorce. If the spouses disagree on financial issues and the respondent refuses to divulge his or her assets or hinders efforts to obtain such information, the courts may resort to indirect proof or proof by circumstantial evidence in order to resolve such issues. This means that the power of an aggrieved plaintiff is extremely limited and he or she must hope that the judge is extremely proactive. Colleagues in Spain note that it is quite rare to find a proactive judge.
Therefore, in this pending matter, we concluded that the fact that California law imposes such a heavy responsibility on the other spouse to disclose assets, and the court has the power -- which it exercises strongly -- to punish a failure to make such disclosure, tilted the balance strongly in favor of bringing suit in California rather than in Austria.
Conclusion
It is critical when comparing divorce jurisdictions to look beyond the letter of the law and to examine the actual ways in which divorce cases are handled in the respective jurisdictions in the real world. If your client is the party looking for assets, you must pay careful attention to the discovery rules in the potential jurisdictions and especially to the ways in which those rules are likely to be implemented in practice.
Thus, in Austria, neither the General Austrian Civil Code nor the Austrian Marriage Act contain any explicit provisions obliging the spouses to provide each other or the competent authority with information on their income and assets. If a spouse demands a certain amount, the other spouse needs to show that his or her assets are not as claimed, but there is little or no way to force a thorough tracing of assets. In Germany, Section 1580 of the Civil Code requires divorced spouses to provide information to each other as to their income and assets, and the Code contains mechanisms to compel the delivery of such declarations, but there is little that a party can do in advance of trial to probe such declarations or to search for suspected assets.
In Spain, Article 774(2) of the Civil Proceedings Act authorizes the courts -- but not the parties themselves -- to request financial information that they consider necessary either from the spouses themselves or from third parties, especially for the purpose of deciding on the economic effects of divorce. If the spouses disagree on financial issues and the respondent refuses to divulge his or her assets or hinders efforts to obtain such information, the courts may resort to indirect proof or proof by circumstantial evidence in order to resolve such issues. This means that the power of an aggrieved plaintiff is extremely limited and he or she must hope that the judge is extremely proactive. Colleagues in Spain note that it is quite rare to find a proactive judge.
Therefore, in this pending matter, we concluded that the fact that California law imposes such a heavy responsibility on the other spouse to disclose assets, and the court has the power -- which it exercises strongly -- to punish a failure to make such disclosure, tilted the balance strongly in favor of bringing suit in California rather than in Austria.
Conclusion
It is critical when comparing divorce jurisdictions to look beyond the letter of the law and to examine the actual ways in which divorce cases are handled in the respective jurisdictions in the real world. If your client is the party looking for assets, you must pay careful attention to the discovery rules in the potential jurisdictions and especially to the ways in which those rules are likely to be implemented in practice.