Our world becomes smaller each day. The era of globalization has reached the point that families can create almost instantaneous connections with the world beyond. With each expanded connection, the issues in family court are becoming increasingly complex and diverse.
The term international divorce has a broad application and is not necessarily reserved for the rich and famous. It could involve a scenario as simple as a couple having citizenship from different countries or a child and spouse living in a separate country from the other spouse. Or it may be that the parties own properties in several jurisdictions. It simply means that some aspect of the divorce has an international component.
Either way, it is not uncommon for a family to find itself involved in a family court matter that spans countries and jurisdictions. And since these may arise more often than people realize, it is important to keep a few issues in mind when dealing with an international divorce.
- Experience Matters: It is critical to work with experienced local counsel who are familiar with the aspects of local and international family laws that may apply to you and your family. The interplay of the different legal processes in your jurisdiction and a foreign jurisdiction are important. Details matter. Knowledge of these distinctions can make a significant difference in the outcome of the divorce.
- Not All Divorces Have the Same Starting Point: An international divorce may start off with litigation regarding the family’s habitual residence. So, before any issues are resolved by the family court, the family may be involved in litigation to determine which family court will take jurisdiction over the case. The 1980 Hague Convention on the Civil Aspects of International Child Abduction is designed to protect children and promote prompt return of abducted children to their state of habitual residence. It can also be the beginning of many an international divorce as one spouse may leave the country that the family has been habitually residing in.
- Not All Jurisdictions are the Same: Simply put, each country’s laws are different. These differences can affect the outcome of your case. This makes it critical to understand what type of law a country may apply: common law or civil law.
- Common law is generally “uncodified” and relies on a mix of case law and statutes. In a common-law jurisdiction, the court will apply this mix of law to the facts of the case when making its decision. The basis of a common-law jurisdiction is an adversarial system: trials with witness testimony and exhibits as the basis for the court’s decision. Examples of common law jurisdictions are the United Kingdom, British Overseas Territories (e.g., Bermuda, the British Virgin Islands, Turks and Caicos, etc.), other parts of the Caribbean, the United States of America, parts of Canada, New Zealand, and Australia.
- Civil law, on the other hand, is “codified” and relies on a continuously updated legal code, which sets forth legal remedies, procedures, and punishments. In a civil law jurisdiction, the court makes its decision within the guidelines defined by the legal code. As a result, the court tends to rely less on witness testimony and lengthy hearings. Examples of civil law jurisdictions are France, Germany, Italy, Mexico, and Spain.
- Each type of law will not only require you to prepare your case very differently. It may also result in very different results depending on the issues raised. For instance, in a case involving the division of marital assets and debts, most civil law countries treat the marital estate as communal property and will likely divide the property by applying the legal code with little testimony from the parties. However, if the same case was heard in a common law jurisdiction, the court is more likely to take testimony from the parties and witnesses during a trial before making factual analysis considering both case law and statutes.
The issues referenced above are not exhaustive. Each case in family court is unique and specific to the family it involves. Likewise, each divorce (with or without an international component) is unique and specific. It is important to make sure that you are aware of some of the basics if you have an international component to your divorce. It is also important to understand that just because there is an international component that it doesn’t make the matter insurmountable or impossible to resolve.
This firm has experience in resolving these types of issues. Keep in mind, the law (no matter what jurisdiction) provides us with the ability to resolve any number of situations, including complex or international ones, with a tailored solution for that specific situation or family. No two families are alike, so every case should be resolved on an individual basis. Please contact us if you think you have an international divorce or similar issue, and we will be happy to assist you. If we are not licensed to practice law in a court that has jurisdiction over your case, we will work to find an experienced local attorney to enhance the strength of your legal team.
Blog post by attorney Jonathan W. Lounsberry. Click here to read more about Jonathan.
The posts on this website/blog are published as a service to our clients and friends. They are intended to provide general information only and should not be construed to be formal legal advice regarding any specific situation and should not be construed as forming an attorney-client relationship. Success in the past does not indicate the likelihood of success in any future representation.
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