Frequently Asked Questions
International issues can lurk, unnoticed, in the simplest of cases. Failing to spot them can be costly for the client, the lawyer and the lawyer’s professional indemnity insurer. At International Family Law . com we often help other lawyers avoid, or minimise the effect of, problems arising in cross-jurisdictional cases. We understand the basic principles of international family law litigation because we deal with them on a daily basis. Set out below are IFLC’s
1. Ask every new client for details of all possibly relevant foreign jurisdictions, including:
Many clients have foreign connections, such as nationality, residence rights, assets, etc. An Australian divorce or order relating to children or finances may adversely affect the client's rights. Always consider the foreign options which may be available. Maybe your client should get a foreign divorce, or perhaps there are good reasons for not divorcing.2 .Get advice from foreign lawyers in any relevant jurisdiction before commencing proceedings in Australia or elsewhere.
3. Ensure that your client issues and serves proceedings first in the most favourable jurisdiction.
4. Consider the possible benefits of using two (or more) jurisdictions, for example, divorce in one country and children and/or financial issues in another.
The classic split jurisdiction case arises when family members live in different countries. For example, the Australian businessman posted to London for a couple of years may want a "quickie" English divorce and Australian orders in relation to finances and children, particularly if the wife and children have returned home to Australia.
5. Keep an open mind and look for the good points in foreign family law systems. Be tolerant of the different standards of foreign cultures.
The Australian family law system is among the best in the world. But the federal state jurisdiction divide still gives us the occasional headache and equitable discretion in property division can be an expensive luxury. The High Court in England rarely has its wide-ranging jurisdiction questioned. Swedish matrimonial property settlements are relatively clean cut and cost effective.
THOU SHALT NOT
An Australian court cannot, as a general rule, make an effective order in family law proceedings requiring one party to transfer to the other an interest in real estate located outside Australia. In England and Wales a matrimonial property adjustment order cannot be made if there has been a foreign divorce, unless special circumstances persuade the court to grant leave to make an application.
Applying for a residence order may be interpreted as an admission of an intention to retain the child in Australia, thus facilitating a summary return to the child's habitual residence jurisdiction under the Hague Abduction Convention.
8 . Commence any proceedings which may adversely affect a party’s
immigration/residence/tax status in Australia or elsewhere.
If a dependant spouse has a visa based on the marriage relationship, separation or divorce may trigger the revocation of the visa. The wife and children may have to return to their home country at short notice. Separation has significant revenue implications (income tax, inheritance tax, capital gains tax, etc.) in many countries.
9 . Advise a client to consent to a child leaving Australia for a long
term stay in a foreign jurisdiction on condition that the child will later
be returned to Australia to live.
Even if a parent has an Australian order requiring the return of the child to Australia, a foreign court may decide that the child's best interests override this. Some protection against this risk may be gained by having a "mirror order" made in the foreign country, before the child leaves Australia, providing that the Australian court will retain primary jurisdiction to determine questions of residence and contact.
10 . Allege adultery in any case where the adulterer is resident in Saudi Arabia.
Adultery is still grounds for divorce in many countries, and a criminal offence in some. If your court documents or correspondence are likely to be read by a judge in a foreign jurisdiction, be careful what you write. Consider getting advice from a family law expert in the jurisdiction.
PS As with all Commandments, there are exceptions. For example, it is OK to be intolerant of beheading adulterers in Saudi Arabia.
PPS These Commandments are reproduced from the IFLC brochure distributed to delegates at the Australian Family Law Conference held at the Gold Coast 26-30 September 2004. Comments in italics are by way of explanation.