Camilla Fusco, Partner
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In this era of global travel and with the expansion of the EU over the last 6 years Family Law practitioners are increasingly called upon to advise from an international perspective. These considerations feature regularly in cases where clients may be non-UK nationals or married to (or in relationships with) non-UK Nationals. However a “domestic” case can soon develop an international dimension, for example, if one party moves abroad or has assets located in another country.
Help is at hand in the form of the third edition of International Aspects of Family Law (published in spring 2009); produced by the International Committee. The Guide provides practical advice and “black letter” law. As well as updating and amplifying the previous 2004 edition some welcome new chapters have been included covering financial provision for children, cross border recognition of contact orders, cohabitation, civil partnership, trusts, international aspects of pensions and matrimonial property regimes.
The following scenarios illustrate the type of international issues which family solicitors may well encounter:-
1. Jill consults you regarding the maintenance paid by her former husband Richard for their two sons under the financial Consent Order made when they divorced 3 years ago. Jill is worried because Richard has never been a reliable payer and has now told her he is moving to Boston with his American girlfriend to take up an IT position with a major US computing company. Jill wonders what steps she can take in the future if Richard defaults under the maintenance Order.
Chapter 18 of the Guide (“Reciprocal Enforcement of Financial Orders”) gives a helpful explanation of the relevant statutory provisions and regulations in this area. There is also a useful table in the appendix setting out the statute, procedure to be used, the type of order to which it applies and the countries covered. This includes reference to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 (SI 2007/2005) which applies Part 1 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 to all US States (subject to minor modifications). This would enable Jill to apply to enforce the English child maintenance Order in Boston once Richard is resident there.
2. Karen, a Danish doctor at the local hospital, seeks advice about her forthcoming marriage to Ben, her English fiancé. She was divorced in Denmark 5 years ago after a brief marriage and is concerned to check whether her Danish divorce is valid here.
Chapter 3 of the Guide deals with the recognition of overseas marriage, divorce, nullity and judicial separation orders. Although Brussels II Bis provides a framework of recognition of foreign orders between EU Member States, Denmark is the exception as it is not a signatory. Therefore the Family Law Act 1986 is applicable and the practitioner needs to check whether the requirements under Section 46 (1) & (2) are satisfied to see if Karen’s Danish divorce is valid here.
3. Marco separated 2 months ago from his girlfriend Donna with whom he has a 3 year old daughter, Lucia. Marco has just received a letter from Donna’s solicitors asking for his proposals regarding Lucia’s maintenance and housing arrangements. Marco would like to sort this out as soon as possible as he is returning to live in his home town near Rome next month to help run his family’s ceramic factory after his father’s recent death.
Chapter 17 of the Guide focuses on Schedule 1 applications under the Children Act with an International element. The practice management section is essential reading in helping the practitioner identify urgent considerations before proceedings are issued (in any country). Because a European dimension is involved the Brussels I regulation (Council Regulation EC No. 44/2001) is relevant particularly as Marco will be returning to live in Italy imminently. Brussels I has a Lis Pendens rule i.e. the first person to issue (and take the necessary steps to serve) secures jurisdiction and it will be for the Court of that country to decide whether to stay the proceedings there, thereby allowing another country to deal with the case. Therefore it will be vital for Marco to seek advice from an Italian family lawyer regarding financial provision for children under Italian law so that urgent consideration can be given as to whether it would be better for him to issue proceedings in Italy. (Given the range and extent of powers available to the Court under Section 15 Schedule 1 of the Children Act 1989 Italy is likely to be the preferred jurisdiction for Marco).
4. Fiona, a former client, telephones on behalf of her brother Martin who lives in Dublin. Martin is having problems regarding contact with his 10 year old son Matthew who moved to London last year with Martin’s ex-wife, Mary. Martin had already obtained a contact Order in Dublin before their move and had hoped that Mary would adhere to this but unfortunately this is not proving to be the case.
Chapter 6 of the Guide is a useful account of the law and systems in place for the cross-border recognition and enforcement of orders relating to custody and access. Both incoming and outgoings cases are covered with practical information regarding procedure. The provisions of BIIr offer a simplified process for Martin. The contact order obtained in Ireland will be directly enforceable in England provided it is accompanied by a prescribed form certificate confirming that certain minimum procedural safe guards were observed when the decision was made. As long as the relevant certificate accompanies the Irish Order Mary cannot oppose its recognition by the English Court and Martin can pursue enforcement here by filing an originating summons or C1 (invoking Chapter 3 of B II r).
With international issues increasingly arising for the family practitioner, the third edition of International Aspects of Family law is a useful tool, however it is crucial that the wider background and issues are considered at the outset and so chapter 1 on practice issues is essential preliminary reading.
For further information email Camilla Fusco or call 020 7940 4000.
