Solicitors Family Law Association
Tuesday 14 October 2003
International Family Law Practice:
Some Tips for Avoiding the Pitfalls
Paper presented at the Manchester SFLA Regional Group
Seminar
by David Truex
International Family Law Chambers, London
SFLA Accredited Specialist Lawyer
Barrister & Solicitor (Australia)
Solicitor (England and Wales)
The Matrimonial Football Game:
Whose Rules?
What rules govern the “game”
of family law dispute resolution? Is it soccer, American gridiron,
Gaelic, Rugby union or league, Aussie rules or a strange game played
in a far off land of which we know little? Is the ball round or oval?
What are the dimensions of the playing field? Are you allowed to stomp
on the opposition when they are lying comatose and prostrate on the
turf?
Here are some of the questions to ask
at first interview to establish the appropriate jurisdiction or jurisdictions
for any proceedings:
1. Does one of the parties or a child
have now (or entitlement to acquire later) foreign domicile, residence
or citizenship rights (including dual or multiple residence/citizenship)?
2. Have the parties lived together or separately in a foreign jurisdiction?
3. Did the parties marry in a foreign jurisdiction and, if so, is
there a marriage contract (which may or may not specify jurisdiction
for family law proceedings)?
4. Are assets (or debts) or other financial resources held in foreign
jurisdictions or is income earned offshore?
5. Are there any foreign family-related companies, trusts or other
such structures?
6. Do religious or cultures laws or norms need to be considered (Islamic,
Roman Catholic, Jewish, etc)?
If initial instructions indicate that
any of these issues arise you must recommend that the client obtain
advice from an appropriately qualified foreign lawyer before a decision
is made as to whether proceedings should be issued in England and
Wales.
If you issue in the wrong jurisdiction,
or are too slow to initiate proceedings in the right jurisdiction,
your client’s case could be severely prejudice and your professional
indemnity insurer may be left to carry a heavy burden.
Finding a Foreign Law Expert
In England and Wales, particularly in
London, there are many family lawyers with foreign qualifications.
The SFLA, the Law Society, Reunite and various embassies and high
commissions keep lists. Community cultural organisations and religious
groups may also assist in finding appropriate experts.
If proceedings in a foreign jurisdiction
have been commenced, or should be commenced, your client will need
to find an appropriate lawyer in the jurisdiction. Finding a specialist
family lawyer can some times be difficult or impossible. Ask the client
if she or he has already spoken with a lawyer in the appropriate jurisdiction.
If not, it will be your responsibility to find someone.
The British embassies and high commissions
overseas keep lists of foreign lawyers. The Foreign and Commonwealth
Office can put you in touch. The International Academy of Matrimonial
Lawyers and Martindale-Hubbell websites list foreign lawyers. Be aware
that it will be your responsibility to test the expertise of any foreign
agent lawyer you intend to instruct on behalf of your client. Do not
be shy about asking whether there are any language difficulties, whether
the lawyer has substantial family law experience, and international
experience in particular, and do not forget to clarify fees and terms
of business.
The best recommendation will always
come from a trusted colleague who can vouch for the expertise of a
foreign lawyer. The SFLA International Committee will soon publish
a list of recommended foreign lawyers. Until the details appear on
the SFLA website assistance can be sought by telephone from SFLA Central
Office.
Recognition of Foreign Relationships,
Marriages and Divorces
Traditionally family lawyers have had
to worry only about recognition of marriages and divorces. With legal
recognition of various forms of social partnership becoming more common
in foreign jurisdictions, the family lawyer must now widen his or
her scope of enquiries. For example:
1. If the parties were married in a
foreign jurisdiction, is the marriage recognised in England and Wales?
2. If the parties lived together in a foreign jurisdiction, but did
not marry, does that foreign jurisdiction impose rights and obligations
on them (e.g. Australian defacto relationships legislation)? If so,
to what extent is the relationship recognised in England?
3. If the parties were divorced overseas, or a separation order or
other order relating to personal status was made in a foreign jurisdiction,
to what extent will it be recognised in England and Wales (e.g. Mexican
divorce by proxy)?
4. Status of children: does an Australian unmarried father with joint
parental responsibility under Australian law lose PR when the family
moves to the UK? If so, does this happen immediately upon arrival
or only after a period of time, e.g. when the family establishes habitual
residence?
5. Germany does not recognise an obligation on the part of a step-father
to maintain a child of the family who is not a child of the couple.
In what circumstances (if any) can the mother use English law to impose
such an obligation to maintain on a German step-father? When she and
the child move to England? Or when he moves to England? Or only when
the whole family moves to England?
6. To what extent are residence and contact orders relating to children
reciprocally recognised between the UK jurisdictions and “overseas”
jurisdictions? The European (Luxembourg) Convention of 1980 effects
mutual recognition between member states but otherwise there is no
reciprocity. Therefore, although a Liechtenstein children order will
be recognised in England, one from Canada, the USA, Australia or New
Zealand will not.
7. Spousal maintenance and child support orders and agreements are
reciprocally recognised between the UK and many other jurisdictions.
However, the enforcement procedure is a nightmare and the Hague Conference
on Private International Law has a five year plan to simplify the
system. Unresolved question: are administrative assessments (as opposed
to orders or Court-registered agreements) from foreign jurisdictions
such as the USA and Australia recognised in the UK? We need a test
case!
8. Are property adjustment orders reciprocally enforceable between
the UK and foreign jurisdictions? Traditional legal thinking says
no (Dicey & Morris on Conflict of Laws, pp 938-948: where a legal
action concerns immoveable property, the Court of the country where
the land is situated has excusive jurisdiction). See also Foreign
Judgments (Reciprocal Enforcement Act 1933: matrimonial property adjustment
orders excluded from the ambit of the Act. But if property adjustment
can be categorised as “maintenance” then international
recognition and enforcement may follow (Van den Boogaard v Laumen
[1997] 2 FLR 399 (ECJ) and Al-Khatib v Masry [2002] FLR 1053 (Munby
J)).
Moving the goal posts
How do you put your client in a “winning”
position when faced with international issues in a family law case?
I make no apologies for using this deliberately dialectical language.
Much of the world does not share England’s humane yardstick
of fairness and “equity” in determining family law financial
disputes, and even in English jurisprudence the best interests of
the child will not always be the paramount consideration of the Court
(for example, in Hague Abduction Convention proceedings). In jurisdiction
disputes there is no doubt that there are clear winners and losers.
Ask any mother of a small infant returned to a “home”
jurisdiction pursuant to a technically correct but morally spurious
Hague Abduction Convention application. Ask any wife who has been
held to the strict terms of a foreign pre-marriage contract which
says she will receive absolutely nothing upon divorce no matter what
the circumstances.
Some tips:
1. If possible, secure your preferred
jurisdiction first. Within the Brussels II jurisdictions this means
issuing a divorce without notice to the other party and then ensuring
that the required steps for service are taken immediately. Usually
this will mean sending the documents to the Foreign Process Section
at the Royal Courts of Justice. See the Brussels Service Regulation
No. (EC) 1438/2000.
2. For non-Brussels II jurisdictions the old rules of forum conveniens
continue to apply. Issuing proceedings first and effecting service
is not necessarily conclusive but it does not hurt!
3. Do not issue divorce proceedings in England and Wales if you believe
your client might do better in a foreign jurisdiction. For example,
Scotland and Sweden are notoriously mean to wives. Many other European,
and some American jurisdictions can also be perceived as “unfair”
when the terms of a harsh pre-marriage contract will prevail over
discretionary equitable distribution.
4. If you are beaten to the punch by a quicker opponent issuing divorce
proceedings in England when you want the case heard elsewhere, consider
an application for a stay. In Brussels II cases the scope for such
stays is considerably reduced by the decisions of the Court of Appeal
and Mrs Justice Bracewell respectively in the two Wermuth cases [2003]
1 FLR 1022 and [2003] 1 FLR 1029.
5. Similarly, in an appropriate case consider a Hemain injunction
in England to restrain the other party continuing with foreign divorce
proceedings. See Hemain v Hemain [1988] 2 FLR 388 and Bloch v Bloch
(Divorce: Stay of Foreign Proceedings) [2003] 1 FLR 1.
6. If you lose the jurisdiction fight in the divorce proceedings,
consider applying to “split” the trial so that the financial
issues can be heard in the jurisdiction more favourable to your client.
For example, see D v P [1998] 2 FLR 25.
7. If all else fails and you lose the jurisdiction/forum race in the
divorce proceedings, consider asking the foreign court dealing with
the divorce to apply English law to the determination of financial
issues. Although virtually unheard of in England, it is common practice
for the civil law jurisdictions on the Continent to apply the law
which the Court considers most appropriate to the family. For example,
an English couple with English real property who happen to divorce
in France may find that the French Judge will apply English law in
determining how to divide the assets.
8. As a general rule, financial proceedings (and therefore, in the
English context, divorce proceedings) should generally be issued in
the jurisdiction where the assets are located, particularly if the
assets comprise real property. This is so enforcement will be easier.
However, there may be good reasons for avoiding the jurisdiction where
most of the assets are held, for example, if that jurisdiction would
bind a party to a pre-marriage contract which gave him or her nothing.
9. Remember to think of the practicalities of running an “international”
defended trial. Will witnesses travel voluntarily? Can documents be
subpoenaed across national boarders? Are there facilities in the Court
for giving evidence by video link?
10. Beware the hidden traps in foreign laws, particularly relating
to revenue law (capital gains tax, gift duty, stamp duty, inheritance
tax, etc). Also consider the implications of the Proceeds of Crime
Act 2002 when applied to family law cases with a foreign element:
is a reasonable suspicion of money laundering in a foreign jurisdiction
reportable to the National Criminal Intelligence Service? Also, never
issue an English divorce petition alleging adultery against a Respondent
who is resident in Saudi Arabia!
11. Look out for immigration law issues in family cases. Will your
client’s separation or divorce affect his or her right to remain
in the UK? What about the rights of any children? You may need to
consider similar implications in respect of overseas jurisdiction,
for example, will separation or divorce affect a party’s entitlement
to an American Green Card?
12. Try to abide by the spirit of the SFLA Code of Practice and the
Family Law Protocol even though, in the quest to protect your client’s
interests, you may be required to issue proceedings first and ask
questions later. Even in difficult international cases, where one
might be dealing with foreign lawyers who are unfamiliar with the
genteel ways of English practitioners, professional courtesy and respect
for the parties and their children can do much to improve the chances
for amicable settlement being reached, thus saving the family much
distress and expense.
Postscript
Are you ready for the EU enlargement
next year? The Brussels Regulations (Brussels I, II, Service, etc)
will apply immediately in all new member states. If you thought understanding
French and German procedure might be difficult, how will you cope
with a flood of Polish divorces?
David Truex
14.10.2003
