Dispelling some of the myths of international family law

The International Family Law Group LLP offers some insight and advice into the myths surrounding international family law including some all-important question and answers for families living abroad.

Family law

The laws of the world concerning family relationships are still predominantly national but too often international families face problems, bureaucracy, misunderstandings and simple obstacles in just living as a family in a country.A decade or so ago, marrying someone from abroad or living and working in another country was a rarity. Now many millions of people are moving across the globe to relocate as families and as individuals to live and work abroad.Living as a family in another country can be difficult at the best of times, but it is even more difficult when there are relationship difficulties. 

International families and the law

The laws of the world concerning family relationships are still predominantly national but too often international families face problems, bureaucracy, misunderstandings and simple obstacles in just living as a family in a country.England only applies English law but there are many countries, principally within Europe, that apply the law of another country in a process known as ‘applicable law’.Even within the UK there are different laws. England and Wales are one country for family law purposes. Scotland is a very different country in relation to family law matters and regarding the court structure. The Republic of Ireland is a separate sovereign state. The Isle of Man has its own legal system, although much of Manx law is based on the principles of English common law. 

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Some countries like the US and Switzerland have quite different laws between the different states or cantons. Other countries such as Australia have one combined law for the whole country on some aspects regarding international families but different laws in each state on other aspects, whereas India and Israel have different laws dependant on religion. The EU does not include Denmark for some family law legislation. As international family lawyers we are regularly asked to explain what some have described as ‘myths’ about international family law. We have taken a number of the most common questions to try to dispel some of these issues.

I have to divorce in the country where we were married?

No. One can choose in which country to divorce if there is a connection. It does not have to be the country where you were married. When a couple divorce, apart from issues concerning any children which are paramount, the next big issue is to secure the best possible financial outcome. England has been described as the ‘divorce capital of the world’ as we tend to be generous especially to wives in terms of financial settlement. Each case is different.

I can move to another country to live with our children if our marriage is over?

If the other parent does not agree, no move can take place, not even for a short holiday. An application for permission needs to be made to the court before the move takes place. If the other parent agrees, this is fine but we recommend securing permission in writing stating that the move is permanent. If you are a single mother and the father does not have parental responsibility for the child and no contact provisions are in place, you can move but again we never advise this without notifying the other parent. If you take a child abroad, away from his home without consent, you may find yourself facing criminal proceedings for child abduction which may result in a fine or imprisonment. Huge powers are given to the court to track down parents who abduct children. The Data Protection Act has no status in a search for missing children.  

I am returning to my homeland with our children now my relationship is over so that’s okay?

No (see above).  

England will recognise my pre-nuptial agreement when I divorce?

Pre-marriage and other marital contracts are not yet legally binding in England. However, a leading case has said that in these cases:"...the Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

My husband or wife has engaged a lawyer in the country where we used to live to deal with the divorce so I have to sign these forms?

No. This could be the worst thing you could do. It does not matter how amicable your separation may be, you should always take preliminary advice. Even if you have reached agreement, always run it by a solicitor to ensure the settlement is fair and gives you protection from a future claim.

I have received some papers about a case in a foreign court, I will just write to the court to explain my position.

Take care before you respond to any foreign court papers, as certain answers in a response may mean that you accept the jurisdiction of the court permitting the case to proceed. Always take specialist advice from a foreign lawyer and from an English lawyer and do so immediately. Court papers will set a date when you will be required to respond so doing nothing is will almost always be prejudicial and may result in orders being made against you which will inevitably be against your best interests.    

We have a property abroad which my husband agrees to transfer to me. As we are in agreement about this, all I need to do is to sign the forms?

Do not sign anything until you have taken legal advice in the country where the property is situated. It might be impossible to transfer the house into your sole name and tax might be payable on the transfer. 

I dispose of my assets situated abroad as the English court cannot do anything about it?

If you think that your assets abroad are safe, then think again. The English court has power to make worldwide freezing injunction to stop the transfer. These injunctions are made initially without notice and very quickly.  

I am marrying a British Citizen so I can live in the UK forever?

If you have married a British citizen abroad and you are not yet here, you will need to apply for permission to enter the UK. You will need to obtain a spousal visa. This is a very complex area of law and each country has a different set of rules so take advice from an immigration specialist advice as soon as possible.

My same sex marriage will be recognised in every country in the world?

Unfortunately, this will not always be the case. Many countries still do not recognise same sex relationships. Always check your rights and entitlements in the country where you wish to move well in advance. The status of your marriage in the eyes of the law in the ‘receiving country’ can affect a variety of factors including immigration status, property rights and inheritance.

I can bring back a child from another country to adopt and live with us as a family?

If you bring back a child without going through the correct procedures even in the most urgent and desperate of cases, you may find yourself guilty of committing a serious criminal offence. Always consult a specialist adoption lawyer or reputable adoption agency.

We have a house in England and one abroad and as we have already made our Wills here, that is sufficient.  

If you have assets in another country, you must make a Will in that country to deal with all assets belonging to you there. In many countries the transfer of property on death by Will is governed by the law of the country where the property is situated, not the law of where the deceased was living at the time of making the Will or at the time of death. Many countries apply the local law of succession and estate administration to real property so a Will must be made in accordance with the local law. Any Will made without such advice may be invalid. Always keep a copy of both Wills in each country. 

Any lawyer can do family law with an international element?

International family law is a very niche and specialist practice area. Once an international element is thrown into the mix, it all changes dramatically. There could be disputes over jurisdiction, foreign judgements or orders in place. Speed is usually of the essence. Only a specialist international family lawyer will have the knowledge and experience to navigate these complex issues.All our lawyers at The International Family Law Group LLP are experts in their field and have a wealth of experience. We could only cover a small number of issues here so if you require advice or for further information please contact Lucy Greenwood on +44 (0)203 178 5668 or visit www.iflg.uk.com.

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