We take a closer look at the most common misconceptions about international family law.
Below are some common issues that affect family clients, and the misconceptions that can inadvertently arise.
1. Where to divorce
Often it is assumed that a couple must apply for their divorce in the same country where they were married. This is not the case. Where a family have connections to more than one country, it may be that they have a choice as to the jurisdiction in which they apply for a divorce. It is important to properly explore all options.
2. How jurisdiction for divorce will affect a financial settlement
London is frequently described as the 'divorce capital of the world'. The English courts have a wide discretion when dealing with financial claims arising out of a divorce. This approach can be vastly different to other parts of the world. This may or may not be to one parties' advantage.
It is vitally important to seek early advice to firstly confirm whether a choice of jurisdiction is an option, and then to investigate which jurisdiction suits your circumstances the best.
It is also important to note that advice is best taken before dealing with or responding to any documents as sometimes even a basic response, such as acknowledging, can be an acceptance of jurisdiction.
3. Recognition of equal marriage or civil partnership
It is commonly presumed that same sex marriages or civil partnerships will be recognised abroad in the same way as they are in England. This is not always the case. It is important to seek specific advice in relation to the laws of the country concerned.
4. Pre-nuptial or marital agreements
Whilst pre-nuptial or marital agreements are recognised in some other countries, they are not legally binding in England. It may be that the terms of the agreement will be upheld by the Court, but it will first consider the conditions and circumstances under which it was entered into and whether it would be fair to do so.
Find out more about international pre-nuptial agreements.
After a separation it is sometimes the case that one party may wish to move abroad for a job or to be closer to family. The right to do so is often misconstrued and can result in unintentional child abduction, which is a criminal offence.
If relocating to another country from the UK, you cannot proceed without the other parent's agreement (in writing) or permission from the court. The same rules apply even for a holiday.
If an application to the court is necessary, it will be determined in accordance with the child's welfare. The court will undertake a holistic analysis weighing each option against the other and considering all the circumstances of the case.
If a move back to England from another jurisdiction is being considered, advice needs to be sought in that jurisdiction before making a move.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.