Divorcing a local spouse has all the bureaucratic pitfalls of getting married, as well as the distinct possibility of being taken to the cleaners by your ex and the Cambodian courts.
By Charlie Lancaster
Alongside many successful mixed marriages in Cambodia, there are those that don’t have a happy ending. As last month’s article showed, getting married in Cambodia can be an expensive and time-consuming affair, but it pales into insignificance compared to the potentially ruinous process of breaking up that union. Many foreigners have tales of how buying themselves out of a loveless marriage and enduring the convoluted divorce proceedings not only made the split even more acrimonious, it also cost them their life savings.
“Divorce is frowned upon in Cambodia and this is reflected in the law. It isn’t an easy process,” says Sam Sokong, an attorney with the Cambodian Defenders Project, an organisation that provides free legal services to the poor. “Foreigners are mostly ignorant of Cambodian family law and [sometimes] marry without thinking about the consequences.”
Many foreigners are in a similar position to Sokong’s clientele of Khmers illiterate when it comes to the local laws. Putting their trust in their partners can prove to be a fatal error when it’s all over bar the shouting. “It is vital that foreigners are aware that without a copy of the marriage certificate, it is impossible to get divorced,” says Sokong. He cites one foreigner who left all the wedding details for his future wife to arrange. Later, when he asked for a divorce, she refused to hand over the marriage certificate, leaving him without legal recourse to the investments made in her name.
Officially, to start the procedure off, any divorcing couple have to present to the court one or more valid reasons for annulling their marriage. These can include desertion without good reason, failure to look after a child, physical violence, adultery, impotence or physical separation for more than a year. The couple must then return to the courts three times, typically over a period of six months, to re-affirm their commitment to the divorce – or inform the court of a reconciliation.
Christopher McKenzie, a lawyer for BNG Advocates and Solicitors in Phnom Penh, believes the lengthy process, like many other anomalies in the Cambodian legal system, has less to do with some kind of moral judgement and more to do with the typical difficulties faced when dealing with the Cambodian judiciary.
“The court system in Cambodia is still in its infancy and the divorce process can be costly and time-consuming, not to mention bewildering,” he says. The only real beneficiary of the money paid out for a divorce is often the court itself. Furthermore, many participants allege that it is common practice for court officials to cream off 10% of the value of the family assets in a range of dubious processing fees.
“We paid $600 for the marriage certificate,” says Carl Bruce, an Australian who is currently divorcing his Khmer wife of three years, “but by the time the separation is legalised we expect that figure to have tripled.” Consequently, the best legal advice a divorcing couple could take would be to avoid the courts as much as possible and try to come to a personal settlement.
“If the parties do not make an out-of-court settlement with regards to property and custody, legal fees could well be in the thousands for foreigners,” says McKenzie.
British national Steve Henshaw and his Khmer wife Sok Sophy have decided on a do-it-yourself divorce. “We don’t want to get the courts involved,” says Henshaw, “because as [I am] a foreigner, they will squeeze me for whatever they can get.”
With the thorny problem of custody of their children undecided, Henshaw is particularly keen to avoid placing this issue in the hands of people he says he can’t trust. “We don’t want a stranger dictating our relationship with our children, especially as we have heard the courts tend to favour the Khmer partner in any settlement,” says Henshaw.
McKenzie agrees that foreigners are in a vulnerable position. “They have little or no knowledge of Cambodian customs and procedures. In private negotiations the couple still have a sense of autonomy; in the courts it is down to the decision of one judge.”
For couples without offspring, the division of property becomes the battleground. Unless an alternative agreement is made beforehand, each partner is supposedly entitled to half of the assets obtained or earned during the marriage. However, as foreigners cannot own land in Cambodia, the rub for people such as Henshaw is that he has no right to the land bought in his wife’s name prior to their marriage.
“If a foreigner buys land and puts it in the name of his spouse before the marriage, the chances of getting any of it back are slim,” says McKenzie. “There is no legislation to protect those in relationships that don’t have official legal status.”
Rather than face the pain and obfuscation of a Cambodian divorce, many foreigners jump on a plane and annul the marriage when they get home. However, while a foreign court can generally grant a divorce, it cannot enforce the division of any Cambodian property. A lack of an out-of-court agreement exposes foreigners to the risk of losing anything they held in the country.
“I am not suggesting people should be cynical,” says Sokong, “but I strongly advise foreigners to familiarise themselves with the law and get a hard copy of all marriage and property documents. Otherwise they may leave the marriage with little more than lost funds and bad memories.”