At our recent inaugural Brodies Family Law Conference, we had the pleasure of welcoming a panel of exceptional speakers who provided delegates with a day of fascinating and hugely informative insights into some of the most topical issues in family law.
In this article, we focus on the particularly complex subject of international family law which was the topic of presentations by Marie Clark, Advocate, and Lucy Greenwood, Partner in the International Family Law Group LLP.
Divorce across borders: international considerations
Lucy Greenwood highlighted some considerations for family lawyers where clients have a connection to more than one country. Depending on where each party was born, is domiciled, holds citizenship, is habitually resident, or where the parties last resided together, it may be that proceedings can potentially be raised in more than one country. In that event, deciding where to raise proceedings is crucial and can have a significant impact on how matters evolve and ultimately on the outcome for the client. Unlike national proceedings, it is also important for your preferred jurisdiction to be seized, before notifying the other spouse of any intention to divorce. However, once jurisdiction is seized, negotiations can commence.
Given that family laws vary significantly from one country to another, initial considerations such as whether there are any requisite periods of marriage (or separation) before proceedings can be raised, or the attitude of the courts to cohabitation or pre/postnuptial agreements, may be very significant. Where a couple has a connection to or assets in more than one jurisdiction, advice from specialist family lawyers should be sought in each country; to include advice about the ability to have any orders which are made in one jurisdiction, being recognised and enforced in the other. Ancillary financial considerations such as tax and the comparative costs of litigation may also have a key role in assessing which jurisdiction to use. The cost of having to litigate in multiple jurisdictions, even just to stay or put on hold proceedings in one country to enable those in another to proceed, could be significant – particularly if jurisdiction is contested.
Cultural issues often play a part too. For example, cohabiting and same sex relationships are viewed very differently from country to country – even within Europe. Some jurisdictions afford equal or broadly comparable rights to marriage for same sex couples; others do not recognise same sex-marriage or legal partnerships at all.
Practical considerations were also highlighted – such as acceptable modes of service abroad, translation and notarisation expenses, and the duration and costs of litigation.
Children: international considerations
Marie Clark's presentation focused on international issues relating to the exercise of parental rights and responsibilities (PRRs) in respect of children. It was particularly interesting to explore the Scottish approach to the exercise of PRRs in comparison to that adopted in other jurisdictions – with the UAE, the United States and Japan all being considered along with European nations Germany and Italy (which each have a very different legal framework to Scotland and indeed to one another).
In the UAE – where the vast majority of the population are non-Muslim ex-pats with connections to various countries – international family law issues arise frequently. Although the UAE has established and is developing a non-Muslim legislative code, its application varies throughout the UAE. Although under the new regime the is a presumption of equal physical custody of the child how that will operate in practice s uncertain. And legal guardianship appears to continue to vest in the father. Legal guardianship is wide ranging and gives a father complete control over matters such as education, health as well as the right to retain a child's passport. The mother's consent is not required and she has no right to object to the manner in which a father exercises his right of legal guardianship of their. A mother may also forfeit her right to physical guardianship in certain circumstances, which do not apply equally to the father.
In stark contrast to the emerging approach in Scotland children's views are not considered in the UAE, and are rarely taken into account in the USA. In Japan, the law determines a primary carer who retains (usually) sole custody of the child with the other parent having limited ongoing involvement. Germany has the concept of Super Parental Rights which give one parent the ability to make significant decisions regarding a child without the consent of the other. This can include the decision to relocate to another jurisdiction. While in Italy, an increasingly oppressive approach to family law is seeing the removal of rights of same sex parents and the closing of certain alternative paths to parenthood – such as surrogacy, which is illegal. There are moves in that country to deem surrogacy to be an international crime which would inhibit the ability of Italian citizens from entering surrogacy arrangements anywhere else in the world since doing so would be to risk criminal sanction on their return. And there are moves also to divest the non-genetic mothers of children already born through surrogacy and living in family, of their parental rights.
This gives just a flavour of the divergence of legal rules in Europe and beyond, which emphasises the need for family lawyers to be able to flag with their international clients the potential for significant issues to arise and the importance of having a network of contacts throughout the world who can be called upon to provide advice to clients to enable them to make informed decisions.