International Family Law Practice: Some Tips for Avoiding the Pitfalls
SFLA Review May 2004
What EU need to know
With the enlargement of the European Union to include 10 new member states from 1 May 2004 it is more important than ever for family lawyers to know the basic principles of jurisdiction and choice of forum. Brussels II and other EU Regulations apply with immediate effect in the new countries. For example, the habitual residence criteria in Article 2 and the “first seised” rule in Article 11 now govern divorce jurisdiction for Poland in precisely the same way as in England and Wales. Importantly, it appears that the meaning of “habitual residence” under Brussels II and other EU Regulations must be interpreted according to EU law as defined by the European Court of Justice (ECJ) in Luxembourg rather than by reference to domestic precedents.
The concept of residence is a [European] Community notion and as such its meaning cannot be adapted to suit the unilateral and uncoordinated preferences of the various national systems.
Swaddling and Swaddling ECJ (1999) 90/97 (Advocate General’s opinion 29.09.1998).
ECJ cases on habitual residence can be found at the EU website www.europa.eu.int/.
Denmark has declined to accept a series of EU Regulations, including Brussels II. Therefore, in relation to Brussels Regulations which affect family law, it is more accurate now to speak of a Brussels Community (BC) law rather than European Community (EC) or European Union (EU) law.
Within competing BC jurisdictions (for example, England and Wales vs Hungary) being first to issue and serve will secure divorce jurisdiction under Brussels II. When the choice of forum is between England and Wales and a non-BC jurisdiction (for example, USA, Australia, Norway, Switzerland, Denmark) this strict rule is supplanted by the discretionary forum conveniens test. Nevertheless, even in non-BC cases issuing and serving first will be likely to help secure jurisdiction.
It is crucial that the family lawyer identifies the choice of jurisdiction issue as soon as initial instructions are taken. Sometimes it may not be obvious. Has one of the parties retained domicile in the Republic of Ireland or Scotland despite many years residence in London? Is one of them a German citizen? If so, what appears to be an obvious case of English jurisdiction for divorce may, in fact, be one where your client’s interests may be better served by commencing proceedings somewhere else. The Republic of Ireland allows spousal maintenance for life following divorce: a clean break is virtually impossible. In Scotland on the other hand, spousal maintenance following divorce is rare.
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
If initial instructions indicate that any of these issues arise you must recommend that the client obtain advice from an appropriately qualified foreign or ecclesiastical 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 prejudiced 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 sometimes be difficult. 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?
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 adversarial language. Much of the world does not share England’s humane yardstick of fairness and equality to determine 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.
1.If possible, secure
your preferred jurisdiction first. Within the
BC jurisdictions this means issuing a divorce
without notice to the other party and then ensuring
that the required steps for service are taken
immediately. In England and Wales this will usually
mean sending the documents to the Foreign Process
Section at the Royal Courts of Justice in London.
See the Brussels Service Regulation No. (EC) 1438/2000.
This Article is really just a long advertisement for the hot-off-the-press second edition of the SFLA’s International Aspects of Family Law. First published by the SFLA International Committee in 2000, the much expanded second edition is an indispensable guide for all, not just the international specialist.
In the forward to International Aspects of Family Law the President, Dame Elizabeth Butler-Sloss DBE, has written:
It is easy to use
and should become a standard reference on every
Order your International Aspects of Family Law through SFLA Central Office today!
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