In a cross-border divorce the outcome of the division is set before the division starts — at the moment the court is chosen. Where the petition is filed first, the case usually stays (lis pendens), and with the court come its rules: the same family with the same assets gets fundamentally different results in London, Moscow and Munich. So a conversation about dividing property should start not with the assets but with the matrimonial property regimes — and only then descend to the real estate, the business and the crypto.
Five Division Regimes
The world's systems reduce to five models. Community of acquisitions (Russia, Kazakhstan, France, most of Spain): what was acquired during the marriage splits equally; pre-marital assets and inheritances stay personal. Accrued-gains equalisation (Germany, Switzerland): property is formally separate, but on divorce the difference in gains over the marriage years is compensated in money — the German Zugewinnausgleich gives no shares in assets, only a monetary claim. Discretionary fairness (England & Wales): no fixed regime; the court divides "fairly" under s. 25 MCA 1973 — starting from 50/50 for a long marriage, and where needs require, pre-marital and personal assets are reachable too. The US state mosaic: community property in California and Texas versus equitable distribution in most states. Finally, separation with claims: Cyprus (a contribution claim against the other spouse's increase, presumed up to one third) and the UAE (separation by title, compensation at the court's discretion).
Real Estate: the Law of the Place
Whichever court divides the family wealth, foreign real estate runs into the country where it stands: the local registry will re-title an owner only under a decision it recognises. An English order transferring a villa in Spain still has to be legalised the Spanish way; a Russian judgment on a Dubai apartment has to pass recognition in the UAE. The practical conclusion: for every property, work out in advance not only "who gets it" but "how to enforce it" — sometimes agreeing on monetary compensation is cheaper than two years of enforcing a foreign order.
Business: Valuation and Buy-Out
Company stakes are the most conflict-prone category. The dispute starts with valuation (income or market approach, discounts for minority and illiquidity) and continues with corporate restrictions: articles and shareholders' agreements often flatly prohibit transferring shares to third parties, ex-spouses included. That is why dividing a business almost always ends not with splitting the company but with buying out the stake at an agreed valuation — the only questions are the price and the schedule. Where the business sits inside a family holding or a private foundation, the dispute moves one level up: what gets divided is not the assets but rights in the structure.
Accounts and Disclosure
A modern cross-border divorce is above all a war for information. English proceedings demand full disclosure (Form E) on pain of criminal liability; American ones — discovery with subpoenas to banks; continental systems are softer, but automatic CRS exchange has already handed the tax authorities a map of foreign accounts, and family lawyers have learned to use it. An unmentioned account is not a saved asset but a bomb: concealment, once discovered, turns the division against the concealing spouse and reopens a case that was already closed.
Crypto: Forensics Instead of Secrecy
The myth of "indivisible crypto" died together with blockchain forensics. Courts (English and American first) appoint wallet expertise, trace flows to KYC exchanges and apply adverse inference: refuse to disclose your keys and the court will value the hidden assets at the top of the range and deduct them from your share. For the honest side the reverse strategy works: fix wallet addresses and transaction history as early as possible, before the assets leave for mixers.
Trusts and Foundations Under Attack
Structures protect capital from a lot of things, but divorce is their most serious stress test. An English court can characterise a trust as a nuptial settlement and directly vary its terms in favour of a spouse; a "sham" trust that the settlor kept using as his own wallet the court simply ignores. Assets moved into a structure on the eve of a divorce come back into the division through clawback mechanisms in almost every jurisdiction. What works are structures created in advance, with a real transfer of control and a coherent family logic — succession, consolidation, governance — rather than "hiding it from the wife".
Trusts and Companies in Divorce: Two English Cases
Neither a trust nor a company takes an asset out of an English divorce by itself. The court does not argue about legal title sitting with a trustee or a holding company — it asks a different question: what does the spouse actually have at his disposal? Hence two techniques and two textbook cases.
Charman v Charman [2007] EWCA Civ 503. In 1987 John Charman settled a discretionary trust, the Dragon Holdings Trust (Jersey law at first, Bermuda from 2003), and filled it with what he earned during the marriage; by trial it held some £68 million. The husband's line: a dynastic structure for future generations, run by the trustee. The Court of Appeal answered that it was ordering the trustee to do nothing and touching no trust — it was assessing the husband's financial resource under s. 25(2)(a) MCA 1973. The test question: if the husband asked the trustee to advance the whole or part of the capital, would the trustee be likely to do so? He was the settlor and principal beneficiary, he could replace the trustee, and the letters of wishes spoke for themselves. The trust assets went into the calculation and the wife received about £48 million out of £131 million (36.5%) — a record at the time. The rule the case is cited for is judicious encouragement (an approach originating in Thomas v Thomas [1995] 2 FLR 668 and settled in Charman): the order is addressed to the spouse, not the trust, but the court assumes a trustee will meet a beneficiary's reasonable request. The second layer bites harder: under s. 24(1)(c) MCA 1973 the court may vary a trust's terms outright where it qualifies as a nuptial settlement — made in connection with the marriage and providing for the spouses. In Charman the wife did not take that route, but for trusts created during a marriage in favour of the spouses it is the central risk.
Prest v Petrodel Resources Ltd [2013] UKSC 34. Here the properties stood in the name of the husband's companies, and the first-instance judge transferred them to the wife directly. The Supreme Court rejected that logic: piercing the corporate veil is not a general tool of the family judge, and the doctrine is confined to the evasion principle — a company interposed to escape an existing obligation. The wife still won, through a resulting trust. The husband had funded the purchases, offered no coherent explanation and disclosed no documents; the court concluded that the properties were held on trust for him, so they were his property. The rule: not through the veil but by proving beneficial ownership; silence and undisclosed documents work against the respondent — adverse inferences.
What this changes in structuring.
- Trustee discretion must be real and documented. Minutes, independent decisions, occasions when the settlor was refused. A trust the settlor runs as his own wallet is analysed as a sham or illusory — the storyline set out in trust basics through the Pugachev case.
- A trust created during a marriage for the spouses is a candidate nuptial settlement. Distance from the marriage — pre-marital settlement, an older-generation settlor, a wide beneficial class — lowers the risk; more in the review of asset protection trusts.
- The geography of the dispute matters more than the geography of the trust. England is called the divorce capital for a reason: judicial discretion, full disclosure, access to structures. Offshore firewall provisions such as the Jersey and Guernsey ones may complicate enforcement of an English order where the trust sits, but they do not stop an English court treating the assets as a resource.
- A prenup works where the structure no longer does. It fixes the regime and expectations before the crisis; assembling one across several jurisdictions is covered in the piece on cross-border prenups.
- Transparency is cheaper than concealment. Both structures lost not on the law but on the facts and on the refusal to disclose them.
Pensions: the Forgotten Balance-Sheet Line
Pension rights are the routinely overlooked asset. In Germany the Versorgungsausgleich splits pension rights mandatorily and automatically — foreigners learn this with surprise. In England the court issues pension sharing orders; in Switzerland the second pillar is divided. For families with a long corporate history, pension savings are comparable to real estate — count them from the start, not at the end.
Protection Built in Advance
The only strategy that works every time is the one built before the crisis. A marriage contract with a choice of law closes the regime question; structures created in advance move the dispute from assets to interests in the structure; coordinated mirror documents across the asset countries remove the war of jurisdictions. Anything done after the first divorce consultation is examined by courts under the fraudulent-transfer lens — and, as a rule, unwound.
This material is an expert overview, not individual legal advice.