International Family Law Practice: Some Tips for Avoiding the Pitfalls

David Truex

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 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 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?
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. The EU is also examining the problem. Unresolved question: are administrative assessments like those of the Child Support Agency (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 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.

Some tips:

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.
2.For non-BC 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 BC 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? What about costs?
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.

A Commercial

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 practitioner’s shelf.

If your next client brings an international question into your office the answer is likely to be found in International Aspects of Family Law. At only £55 for SFLA members no one can afford to be without it.

Order your International Aspects of Family Law through SFLA Central Office today!

David Truex
28.04.2004

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