International Family Law Chambers

Conference Papers

IFLC home page
About IFLC
Getting advice
Case reports
News and publications
Our location

IFLC links

9th Australian National Family Law Conference – Sydney 2000

International Property Workshop
Tuesday 4 July 2000 at 2.00 pm

International Matrimonial Property Litigation:
Some tips for the family lawyer


As an Australian family lawyer who has practised in London for the past 10 years I encounter international cases frequently. When multi-jurisdictional issues arise in the context of financial litigation answers to simple questions are not easily found. The amicably separating couple who only want to know what a “fair” property division would be cannot be blamed for suspecting a professional conspiracy on the part of the lawyers who advise that the answer depends on which jurisdiction or jurisdictions is/are appropriate and that choosing the correct jurisdiction(s), and the criteria for determining “fairness,” is likely to be a very expensive exercise.

The subject of this workshop session is, by itself, worthy of a week-long international conference. To my knowledge no specialist international family law text exists. In his elegant work Conflict of Laws in Australia (6th ed, 1995) Dr Peter Nygh summarizes the international law of matrimonial property and financial relief in 18 pages but you have to read most of the other 565 pages to get the full picture because topics are often interrelated (for example procedure, enforcement, choice of law, trusts, corporations, bankruptcy and deceased estates). The international lawyer’s bible, Dicey and Morris on the Conflict of Laws (13th ed, 2000), also contains much of relevance to family law in its 1600 pages. But there is nothing comprehensive which is specifically focussed on international family law.

In this paper I can but outline some of the more significant issues which arise in international matrimonial property litigation and give a few brief pointers on how to avoid some of the more common pitfalls. This is by no means an exhaustive treatment of this complex subject.

2. Some common problems and a few answers

2.1 International recognition and enforcement

Are matrimonial property adjustment orders reciprocally recognised and enforceable between Australia and other jurisdictions? We all know that orders for maintenance are because Family Law Regulations 25 through 56 give us a nightmarish procedural regime for doing so. When is some clever international convention draftsmen going to cut through all that red tape and outline a simple procedure which allows respectable due-process jurisdictions to simply email or fax each other their certified maintenance orders for immediate recognition?

We also know that “custody orders” can be registered internationally in some jurisdictions as provided in Family Law Regulations 23 and 24, the prescribed overseas jurisdictions having been set out in Schedule 1A (an odd assortment which includes most, but not all, of the United States plus Austria, New Zealand, Papua New Guinea and Switzerland). Do those four non-American jurisdictions have anything else in common except their inclusion in Schedule 1A? And why are some obvious candidates, such as the various United Kingdom jurisdictions and the provinces of Canada, not included? Another job for the international convention drafters.

And, of course, everyone knows that marriages and divorces are almost universally recognised between the different jurisdictions of the world. However, there are some important exceptions to this general rule.

With this background of amiable international comity it is not surprising that family lawyers just assume that a property adjustment order made by the Family Court of Australia will be automatically recognised and enforceable in England, and vice versa. The bad news is that this is not so.

The English antecedent of the Australian Foreign Judgments Act 1991 is the Foreign Judgments (Reciprocal Enforcement) Act 1933. Both Acts specifically exclude matrimonial causes from the reciprocal enforcement scheme. On reflection, this is understandable. Yes, there is specific legislation to allow reciprocal enforcement of maintenance, but enforcing a maintenance order against a payer’s income in a foreign jurisdiction does not raise the same gravity of issues as enforcement of a property adjustment order, which would strike at the core of national sovereignty over land. Forced sale of real estate ought not to happen without a hearing on the merits in an Australian court.

Dr Nygh discusses the problem of reciprocal enforcement of matrimonial property orders at pages 419-420. The only directly relevant case is Caddy v Miller (1986) FLC 91-720; (1986) 10 Fam LR 858. A California court had divorced the couple and divided their property, the order including a term that the parties were confirmed in their ownership of an interest in a home in Sydney. Some years later the wife applied to the Family Court of Australia for a property adjustment order in relation to the home, tantamount to a second bite at the cherry. She succeeded at first instance but on appeal the Full Court held that her claim should be dismissed on the basis of cause of action estoppel. It should be noted that the California court order did not change the interest of the parties in the Sydney home, it just confirmed their existing interest in it.

This is consistent with the general principle, discussed in Dicey and Morris pages 938-948, that, where a legal action concerns immovable property, the court of the country where the land is situated has exclusive jurisdiction. This general principle is also recognised by implication in section 31(2) of the Family Law Act 1975 which provides that “…the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories”, in other words, not in relation to real property outside Australia. The section was referred to in the judgment of Fogarty J in Gould and Gould; Swire Investments Limited (1993) FLC 92-434, pages 80,451-80,454, a judgment with which Nicholson CJ and Finn J concurred. In Gould the court held that it did have jurisdiction to make orders in relation to a company registered overseas, that is, a (corporate) person outside Australia.

The problem of not being able to enforce property orders overseas has sometimes led parties, with the support of judges, to try to extend the scope of the law. In Fickling and Fickling (1996) FLC 92-664, the Full Court overturned a decision whereby the trial judge had ordered a husband with assets overseas to pay a lump sum to the wife. The judge had tried to help the wife by converting what was in fact a property adjustment order into a maintenance order, so as to enable reciprocal enforcement against the husband’s assets in the United States. The case illustrates the importance of distinguishing the various components of a financial order, particularly maintenance orders from those that relate to property adjustment.

Sometimes the distinction is not so clear. In a case which, in many ways, was very similar to Fickling, the European Court of Justice found a way to allow a wife to enforce an English lump sum order against the husband in the Netherlands by categorising the lump sum as relating to maintenance. In Van den Boogaard v Laumen [1997] 2 FLR 399, the European Court said that the fact that the maintenance was provided in a lump sum, or even as a transfer of property, was not material. The central issue was the intention of the original court in making the order. If the intention were to provide for needs the order could be categorised as maintenance.

Following this decision by the European Court it may be that an adventurous English judge will find a way to allow enforcement in England of what might appear to Australian eyes to be a property adjustment order in the manner of Fickling. The devil will be in the detail of the precise words of the order. Those hoping for international enforceability should take care to make clear in drafting the order that a that lump sum is intended to be for maintenance, that is, to satisfy needs. I wonder if the Family Court of Australia has had a good look at the reasoning of the European Court? Perhaps the problem illustrated in Fickling can be overcome with some enlightened thinking.

2.2 Should I stay or should I split?

When two or more jurisdictions are entitled to hear a matrimonial case one must ask which of the available choices is the more appropriate forum. For example, one or both of the parties to a marriage might be an Australian citizen, which would give the Family Court of Australia jurisdiction. However, if the couple are expatriates living and working in London and with all their assets within England and Wales, then common sense will dictate that, in most cases, the matrimonial dispute ought to be sorted out in England rather than Australia. If one of the parties were to commence divorce or financial proceedings in Australia in these circumstances the Australian court may well order an injunction staying the Australian proceedings to allow the English court to determine the matter. Similar powers exist in England to deal with the reverse situation.

Interestingly, however, in my experience the Family Court of Australia is less likely than its English counterpart to stay proceedings on a forum conveniens basis. The rule applied in England, that a stay will be granted in favour of a clearly more appropriate or natural forum (Spiliada Maritime Corp v Cansulex Ltd [1987] 1 AC 460) is not applied in Australia where a more stringent test prevails. Under Australian principles, a stay will be granted only if the local (Australian) court is a clearly inappropriate forum (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. In Voth the High Court of Australia said it would be appropriate to stay proceedings where they would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging or vexatious in the sense of productive of serious and unjustified trouble and harassment. Voth was followed in a family law context by the High Court of Australia in Henry v Henry (1996) FLC 92-685.

On the basis of Henry, it will be a brave litigant who attempts to stay Australian matrimonial proceedings. This is not to say, however, that appropriate circumstances will never exist. In my opinion, the hypothetical case outlined at the beginning of this section would fall clearly within the Voth criteria. The difficulty arises in applying the law to less clear cases. Fine judgment is required. Stay proceedings often go on appeal and the costs implications of failing in an application can be significant.

With a little co-operation from both sides, arguments over forum can sometimes be resolved by agreement. For example, if there is real property in both Australia and England, it may be necessary to have property adjustment orders made in both jurisdictions because neither England nor Australia will be able to enforce the other’s order. A device I have used with success in the past is to reach agreement that proceedings will be issued in both jurisdictions but that there will then be a consent stay in one jurisdiction while the proceedings in the other jurisdiction continue to completion by negotiated settlement or court order. Thereafter the jurisdiction in which the proceedings have been stayed can be revived for the purposes of making any orders which the court hearing the substantive dispute does not have the jurisdiction to make.

This technique of “splitting” the forum can be effective in helping to resolve financial disputes. It can also be used when the parties want to divorce in one jurisdiction but have financial orders made in another. Australians living in England are usually repelled by the archaic Matrimonial Causes Act 1973 which requires one of them to allege matrimonial fault against the other if a divorce is to be granted before a two-year separation period has elapsed. Conversely, English clients, impatient for a quickie divorce, may not want to wait for the 12 month separation period mandated by Australian legislation when they know they can be divorced in their home country in three or four months by proving adultery or unreasonable behaviour.

In some cases where a choice of jurisdiction is available, it is possible to make everyone happy (a rare occurrence for the family lawyer!). It can be agreed between the parties that the divorce will take place in one jurisdiction and that the financial proceedings will be entirely or partly conducted in the other jurisdiction. For more on this interesting subject of splitting jurisdictions see Forum Conveniens and Split Trials in International Family Law, November 1999, page 122.

There are some pitfalls to avoid when splitting jurisdictions. In Australia, if the divorce is granted overseas, the section 44 (3) Family Law Act 1975 bar on financial applications 12 months after decree absolute does not apply. In England, if there has been a foreign divorce, the Matrimonial Causes Act 1973 jurisdiction for financial orders does not exist. This is because in England financial orders are ancillary to the principal proceedings of divorce. This connection between principal relief and ancillary relief used to prevail in Australia before the Family Law Act 1975. Australia is indeed fortunate that it severed this nexus, making stand-alone matrimonial financial applications possible. England has had to pass special legislation to overcome the jurisdictional difficulty. The Matrimonial and Family Proceedings Act 1984, Part III, allows a party to apply for financial orders in England after a foreign divorce. The catch is that the applicant must first be granted leave to apply. The case law indicates that such leave is not easily granted. In fact, in about half the reported decisions the applicant has failed to obtain leave to proceed.

The jurisdictional matrix between Australia and the United Kingdom hides many traps for the unwary. With careful preparation many of the pitfalls can be avoided. The golden rule in matrimonial financial cases where international issues arise is that, before negotiations or proceedings are commenced, indeed, before the client is given recommendations as to a particular course of action, advice should be sought from expert family lawyers in all other relevant jurisdictions.

2.3 The logistics of international litigation

I want to share some of the basic rules of practice I have learned in the 10 years I have been in London doing international matrimonial litigation. I have learned the hard way, now I can make it a little easier for you.

  • Find a good expert lawyer in every relevant foreign jurisdiction and get advice before taking any substantive action.
  • Be frank with your client about the likely difficulties, delays and expense which arise in a case where international issues must be considered.
  • Look for ways to compromise disputes over jurisdiction and forum. Usually, the question as to whether a particular court has jurisdiction is answered with a simple yes or no. The more difficult question, when two or more courts have jurisdiction, is which one is the more appropriate forum. This is inevitably more difficult to resolve because, at least as between Australia and England, the discretionary tests applied by the respective courts to determine stay applications are different. Compromising the potential forum dispute as suggested in this paper will save the parties much heartache and expense.
  • Give early consideration to the problem of international enforcement of orders. Generally, proceedings should be run in the jurisdiction where the assets sought to be affected by orders are situated. However, there are exceptions to this general rule. Do not assume international reciprocal enforcement - check the law, including the foreign law, carefully.
  • Consider differences in economic circumstances between countries. A dingy flat in an outer London suburb may appear in a Form 17 Financial Statement to be equivalent in value to a Toorak mansion, but this does not mean the garret dweller should be ordered to sell and downsize. A London taxi driver earning the equivalent of $100,000 per annum may not necessarily be able to afford to pay 27% of his (adjusted) taxable income to support his two children living in Australia because he could be paying more than half his net income just for rent and council tax in his garret.
  • Plan early how you will get evidence before the court in case you have to go to a defended trial. Will witnesses travel voluntarily? Can documents be subpoenaed across borders? Are there facilities in the court for giving evidence by video link?
  • Beware settling for a specified lump sum which is intended to be paid in a foreign jurisdiction at some future date. Currency exchange fluctuations can seriously erode the value of a lump sum between the making of the order and payment. If you want your client to receive a certain amount in Australian dollars from an English court then ensure the order is written in Australian dollars or, alternatively, clarify who will be responsible for/benefit from a variation in the exchange rate before payment is made.

3. Clever tactics or dirty tricks?

I will conclude with a story about an Irishman, an Australian and a Mexican. The Irishman is a husband, the Australian is a wife and the Mexican is a divorce lawyer. This actually happened.

The husband and the wife married but did not live happily ever after. Following a judicial separation in Ireland, the wife returned to Australia, and the husband moved from the family home in Dublin to Paris with his company. Later he decided he wanted a divorce. He was in the process of setting up a branch of the company in London so he filed a divorce petition in London. However, his timing was not quite right because he could not establish the jurisdictional basis of one year’s residence in England or English domicile. His Irish domicile of origin had clearly been retained. Under Irish law this meant that, even if the English court did have divorce jurisdiction, the divorce would not have been recognised in Ireland.

Apparently none of the husband’s lawyers in Ireland, France or England thought of asking an Australian lawyer if divorce in Australia would be possible. The wife wanted a divorce but she wanted this to be in Ireland because the former matrimonial home was there and she needed a property adjustment order. No order made in France, England, Australia or anywhere else would be able to force the husband or an Irish Registrar of Land Titles to sign the property over to the wife. Incidentally, she was also attracted to the Irish jurisdiction by the fact that the law there does not allow for a clean financial break on divorce.

Forum disputes can be quite adversarial and costly and the wife’s English application for a stay was vigorously pursued in the face of cries of foul play from the husband and his solicitors. The correspondence was intemperate by the standards of English solicitors. Just before the hearing the husband sacked his English solicitors and came to court in person, agreeing meekly to withdraw his petition on the basis that the wife would seek an uncontested divorce in Ireland. The wife then commenced Irish divorce proceedings. However, the husband had a secret when he came to the English court to withdraw his petition. He did not tell the judge or anyone else that six weeks previously he had obtained a Mexican divorce by proxy, that is, by mail, in the State of Tabasco, without notice to the wife or her lawyers.

What a neat trick! Presumably the Mexican lawyer had advised the husband that the divorce would be recognised world wide.

This ace was pulled out of the husband’s sleeve in an affidavit filed by his Dublin solicitor in opposition to the wife’s Irish divorce application. Furthermore, the husband had already re-married in New York.

It was essential for the wife to get divorced in Ireland if she were to get enforceable orders in relation to the Dublin former matrimonial home. She was also still keen to ensure that no court would give her a clean financial break on the divorce. Could she continue with her Irish divorce and claim for property adjustment notwithstanding the Mexican divorce? In Ireland, as in England and Wales and many other jurisdictions, the power of the court to make financial orders is dependent on the making of an order for divorce as principal relief. No divorce in Ireland meant no property adjustment order in Ireland. If the Mexican divorce were recognised in Ireland then the wife’s Irish divorce proceedings had to fail.

The general rule of private international law is that at least one of the parties to a marriage must have a real and substantive connection to the jurisdiction granting a divorce in order for the divorce to be recognised internationally. The Australian position is explained by Dr Nygh in Conflict of Laws in Australia. He concludes (at pages 401-403) that a Mexican divorce by proxy will not be recognised in Australia under the private international law rules of real and substantive connection with the jurisdiction. He cites as authority the decision of Justice Baker in Barriga and Barriga (No. 2) (1981) FLC 91-088; (1981) 7 Fam LR 909, where it was held that a Mexican proxy divorce would not be recognised in Australia.

In England and Wales, the recognition of an overseas divorce is governed by Part II of the Family Law Act 1986. The tests include habitual residence in, domicile in or nationality of the overseas jurisdiction in which the divorce is granted. There is discretion to refuse recognition if the divorce was obtained without notice to the other party. However, at pages 399-400 of Conflicts of Laws in Australia, Dr Nygh sets out a hypothetical example to illustrate how section 104 of the Family Law Act 1975, which deals with recognition of overseas decrees of divorce, could allow Australia to recognise the Mexican divorce because it was recognised in New York where the husband re-married. Although this may be true in certain circumstances, in the context of this particular case concerning the Irish husband and the Australian wife, where the husband had deliberately misled the court about the Mexican divorce, I cannot imagine that an Australian court would make a declaration that the Mexican divorce was valid in Australia. In England section 51(c) of the Family Law Act 1986 allows the English court to refuse to recognise an overseas divorce as valid if such recognition would be manifestly contrary to public policy. Although this point has not been examined in the English law reports since Kendall v Kendall [1977] Fam 208, a case which preceded the 1986 Act, in my opinion an English court would refuse to recognise the Mexican divorce. Recognition would be manifestly contrary to public policy in the light of the husband’s failure to inform the court about it when he applied to withdraw his English divorce petition.

So, did Ireland recognise the Mexican divorce? The question was never decided because the parties settled. The husband turned up at the Dublin High Court with counsel on the day of the hearing and announced that he would accept the Irish jurisdiction for divorce and financial settlement. The wife, who had flown from Australia to Dublin for the hearing, participated in settlement negotiations and a deal was struck at the door of court which gave her a settlement sum which took into account the wasted costs in the English proceedings.

Although we will never know whether the Irish court would have recognised the Mexican divorce, my hunch is that it would not have. I do not offer this view as an expert opinion because I am not qualified to advise on Irish law.

The moral of this story is that one should not try to be too clever in international cases. The husband’s actions, in launching an English divorce petition when not in a position to establish the jurisdictional basis, and then obtaining a Mexican proxy divorce in the course of those English proceedings without informing the court or the wife’s legal representatives, put him at risk of a severe reprimand, and perhaps a costs penalty, from the court. Both parties would have been spared much anxiety and cost, and the divorce and financial settlement which would have been resolved much more quickly, if the husband had simply agreed at an early stage to accept the jurisdiction of the most appropriate court, in this case, in Ireland.


International family law cases raise particularly difficult issues. The first problem is how to recognise when an international issue arises. Examples include:

  • When a party or a child was born overseas or has foreign domicile, citizenship or residence rights.
  • When the parties married overseas or made a marriage contract overseas.
  • When there are assets or other financial resources held overseas or when income is earned overseas or when a family-related company is registered overseas.

Families with specific cultural or religious traditions also need to consider special laws which may govern their status, obligations and rights. Although such cases are not usually thought of as international, similar issues of jurisdiction and recognition can arise. The alert family lawyer will approach such cases with his or her mind open to the cultural and legal implications. Particular difficulties can be encountered in cases where religious laws (Islamic, Roman Catholic, Jewish, etc) may be considered by the family to be of greater significance than the civil law.

I will close with some advice from Lord Justice Thorpe of the English Court of Appeal, delivered in a judgment when he was still a Judge of the Family Division. In M v M (financial provision after foreign divorce) [1994] 1 FLR 399, at page 407, His Lordship said:

"Cases with an international dimension require very careful strategic review and profound consideration, not only of prospects of short-term gain but also justice and finality for the benefit of all members of the divided family. They do particularly require wisdom and experience that can only be gained from specialist practice in this comparatively limited field."

David Truex
4 July 2000

back to News and Publications
218 Strand, London WC2R 1AP, England
Tel: +44 (0) 20 7583 5040   Fax: +44 (0) 20 7583 5151


print this page