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
