All Family Lawyers Must Now Know About International Family Law
Whereas a couple of decades ago international family law could be safely ignored by many family lawyers, it is now commonplace in very many cases as a feature or as the predominant initial theme. All family lawyers must understand the issues and principles and what to look out for in receiving client instructions.
The challenges and opportunities
International family law work used to involve only wealthy clients and highly specialist practitioners. It was high premium work and safely ignored. Consigned to a black hole marked too complex. The black hole has imploded. All family lawyers, from initial days of qualification, must now be able to identify the international issues in a case and how they can be dealt with.
The UK has probably more international families than any other jurisdiction in the world, with the separate states of the USA being different jurisdictions. Moreover these international families in the UK are from across the entire world and not just from a few neighbouring or associated countries. Moreover and crucially in the UK, international families are spread around the entire country and not just found in a few metropolitan centres. So all family lawyers, in all communities, will encounter clients with international family law issues.
The UK is also at the international family law crossroads. It is the original common law jurisdiction, with its family laws being originally based on statute but mostly being judge made. It has close legal associations with many English-speaking common law countries around the world. Yet it is close to continental Europe, whether or not in the EU, and many civil law concepts are now found in English law and practice. It is inevitably influenced by communities within the UK and there are undoubtedly recognitions in law of Islamic legal traditions and similar. For almost 20 years it has had EU laws within its national laws and it is a strong proponent of Hague laws which apply around the world.
UK lawyers and judges are recognised as some of the leading international family lawyers worldwide. Many innovations of UK law and practice are borrowed by countries globally. The UK is perceived as a very liberal, gender fair, accessible, open and just system of family law. It is a strong proponent of the best interests of children and makes generous financial provision. It is an attractive jurisdiction for many who have any connection with the UK.
So what are the sorts of issues which practitioners should consider, especially at the outset
- is there jurisdiction, connectedness, with any of the UK countries, noting that England and Wales is one combined country for family law purposes with Scotland and Northern Ireland being separate
- is there any other country around the world with jurisdiction, connectedness, and might it be more beneficial for the client for the proceedings to be in that country; local advice will invariably be needed
- what is the forum test for deciding in which country the proceedings should be? At the moment and pending Brexit, within the EU it is simply whoever is the first to lodge proceedings secures the proceedings in that country. With the rest of the world it is wherever is the closest connection as the test for the appropriate forum to hear a dispute
- are there language, travel or other practical issues with proceedings abroad
- what will be the outcome of the divorce, children and/or financial issues if the proceedings were abroad?
- Will any order made in the UK be recognised and enforceable abroad and will any foreign order be recognised and enforceable here? Implementation of any order must always be considered in international cases. Moreover implementation abroad should be considered before the settlement itself otherwise an order might be frustrated if practically impossible to implement
- in particular given the importance of status, will any divorce be recognised in the country in which either party may be living or working?
- Should there be any injunctions or other steps at the outset to freeze assets or maintain the financial status quo so that any financial order is effective
- is the child in a safe place and practical steps taken to minimise the risk of a child abduction and what are the prospects of a successful child relocation application?
- Is there a marital agreement which may have a jurisdiction clause or choice of law clause or which may be binding in some countries and yet ignored or discounted in places such as England if not providing for needs?
- does the lawyer have sufficient funding in advance, especially if parties are abroad and pursuing costs maybe a problem?
There is much else to consider. Younger lawyers should endeavour to work with more experienced lawyers and counsel. A number of law firms have good information on their website. Textbooks are available. Careful reading of reported decisions, many of which now involve international elements, will build up knowledge. Understanding the needs of clients in a catchment area, perhaps with distinctive connections with certain countries and laws, is really beneficial
International family law is a very enjoyable and interesting area of family law. It used to be an optional specialisation. It is now a compulsory subject for all family lawyers.
About the Author
Prof David Hodson OBE MICArb is a co-founder and partner at The International Family Law Group LLP, London. He is an English solicitor, arbitrator and mediator and also an Australian qualified solicitor, and sits as a part-time family court judge at the Central Family Court. He is an Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Member of the English Law Society Family Law Committee, a Fellow of the International Academy of Family Lawyers, a Fellow of the Centre for Social Justice, a Fellow of the Asian Institute of Alternative Dispute Resolution and a member of the Family Law Section of the Law Council of Australia. He is author of “The International Family Law Practice” (Jordan’s 5th edition Dec 2016). He is Honorary Professor at Leicester University and Visiting Professor at the University of Law. He received the OBE in 2015 for services to international family law. He is an Anglican lay preacher
The International Family Law Group is a specialist law firm, based in Covent Garden, London, looking after international and national families and their children. It has expertise in both finance and children matters, issues concerning relationship breakdown including forum disputes and international enforcement of orders. It receives instructions from foreign lawyers and clients of other law UK firms seek its expert experience. It provides helpful information on its website about relevant law and practice for international families. It has a 24-hour emergency contact arrangement including a child abduction snatch line. More information on its website at www.iflg.uk.com