by Jeremy D. Morley
International marriages and personal relationships place special demands on family lawyers whose clients require dependable advice about complex international family law issues. This has led to an increasing role for international family law counsel.
Today, it would hardly be unusual for an American man and a French woman living in New York to marry in Bermuda, move from New York to Singapore on business, own real estate in Canada and a business in England and have children in school in Switzerland. If they separated and one spouse unilaterally returned with the children to live in New York, each party might well require legal advice regarding many matters, each having a significant international component, concerning divorce, custody, equitable distribution, child support, spousal support and child abduction.
Family lawyers may have little experience in handling international cases. Should they handle such matters without the assistance and collaboration of experienced and knowledgeable international family law counsel, they risk not representing their clients’ interests competently.
International family law attorneys are usually familiar with different legal systems (ideally, civil as well as common law), whether by practice, academic experience, or otherwise. While no one can know the laws of all countries, international family law counsel are experienced in discovering, understanding and comparing such laws, not by merely reviewing the bare language of the governing statutes, cases or treaties, but by evaluating the practical impact of the laws as they might apply to their clients’ actual circumstances in the various legal systems in issue.
Genuine knowledge of foreign practices and social customs is another critical element of the ability to counsel on international family law matters. Typically, international family law attorneys are multicultural in experience and outlook, and understand the particular concerns of people from different cultures.
International counsel collaborate with local counsel in each jurisdiction and offer a critical overview and understanding of the ‘big picture’ of an international family law case that local counsel can rarely give, so as to provide coordinated, coherent and effective advice to clients. They also assist clients and counsel by drawing on international networks of counsel, consultants and experts.
International counsel’s work frequently centers on helping clients make the critical “first step” decisions in complex international situations. The initial steps in many of these cases are the most significant. Preliminary questions may include: Should the client stay in the foreign residence or move ‘back home’ before instituting a divorce? What steps should the client take before moving to another country? May a parent with certain rights of custody from a court in one country unilaterally take the child to another country? What would be the consequences of such a move? Clients must have knowledgeable and experienced advice when making such decisions.
The specific issues with which international counsel may provide assistance include prenuptial agreements, international child abduction, international divorce, international relocation, the ability of individuals to remarry and international child custody.
International people who marry should decide whether they need a prenuptial agreement. Their attorneys should make recommendations as to which law should govern. Laws concerning prenuptial agreements vary considerably throughout the world. Some jurisdictions prohibit prenuptial agreements, such as Hong Kong and England (although there is a trend in England towards enforceability). Other jurisdictions enforce prenuptial agreements liberally, such as most civil law jurisdictions, while other jurisdictions, such as most United States jurisdictions, enforce prenuptial agreements provided certain strict conditions are fulfilled and absent unconscionability.
In the extreme example of an Australian national living in New York with business interests in France who is engaged to a Taiwanese national living in Munich with real estate in California, it might be necessary to consider whether English, Australian, Taiwanese, New York, German, French or California law might govern the agreement and it is then necessary to select the most appropriate and beneficial.
International family law counsel will coordinate analyses of the laws of the various jurisdictions, coordinate the advice as to the appropriate jurisdiction and perhaps draft the agreement with local counsel’s review. International counsel must understand and be sensitive to the effect of local practice on potential enforcement, ensure that clients are well advised concerning such laws and procedures, and ensure that clients understand that the advice concerning local law is derived from local counsel.
International counsel might recommend “mirror agreements”, whereby prenuptial agreements are drafted in accordance with the laws of more than one jurisdiction, each “mirroring” the other, to ensure that if one is unenforceable a “back-up” agreement may be enforceable nonetheless.
Ability to Marry
International family law counsel handle issues concerning the effect of prior marriages on proposed marriages. Thus, they will advise as to the recognition in the jurisdiction in which the parties plan to marry or reside of divorce decrees issued overseas.
Divorce through plenary court proceedings is not the universally accepted model. Since foreign divorces vary enormously in form, structure and procedure, counsel must advise as to the extent to which they will be recognized in this country. The following types of divorce present particular issues:
· Religious divorces, such as (a) Islamic talaq divorce, which in traditional Islamic law is simply the husband’s triple declaration of divorce; (b) Jewish rabbinic divorce (“get”), which has recognized civil law authority in Israel, and varying degrees of recognition elsewhere in the world; and (c) divorces in Cyprus, which, under Cypriot law, for members of the Greek Orthodox Church can usually only be issued by a church tribunal.
· Registry office divorces, such as in Japan and Taiwan (and, with certain variations, in China and Korea), whereby both spouses merely file a paper in a local registry office and are promptly divorced.
· Quickie” divorces, such as in the Dominican Republic, whereby one party typically travels there for a couple of days with a consent paper signed by the other spouse, and a court issues a divorce decree quickly thereafter.
International family law counsel must analyze the laws of divorce in (a) the jurisdiction which granted the divorce, (b) the jurisdiction in which the parties are now residing or domiciled and (c) any jurisdiction to which the parties plan to move in the future.
Polygamous marriages spawn a vast array of legal consequences in different jurisdictions and may create extremely complex issues for international family law counsel.
International Child Abduction
International child abduction, often by a parent or grandparent, is increasing as more people travel and reside overseas. International family law counsel coordinate all aspects of these cases, which often require immediate action in multiple jurisdictions.
If a child is abducted from the United States to a foreign country, international counsel may assist the left-behind parent by taking the following steps:
· Determine whether the case can be brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), as implemented into U.S. law by the International Child Abduction Remedies (“ICARA”), 28 U.S.C. 11604;
· Prepare and file the Hague Convention application, including preparing expert affidavit(s) (with local counsel, if appropriate) as to petitioner’s custody rights under the law of the state of the child’s last habitual residence;
· Coordinate with the Department of State’s Office of Children’s Issues;
· Help the client retain local counsel in the foreign jurisdiction;
· Assist local foreign counsel prepare affidavits and testimony proving the necessary elements of the application and disproving any defenses raised by the abductor;
· Conduct legal research concerning the custody laws of the last habitual residence and international interpretation of the relevant provisions of the convention;
· Help the client retain local counsel in the state from which the child was removed to institute temporary and permanent custody proceedings;
· Help local counsel prepare and prosecute the custody proceedings;
· Determine the appropriateness of instituting criminal proceedings against the abductor under federal law (Parental Kidnapping Prevention Act of 1980) and state criminal law, and take appropriate measures to encourage law enforcement authorities to issue warrants and take other actions;
· Coordinate appropriate action if the abductor flees to a third jurisdiction;
· Coordinate the institution of measures to cause the foreign state’s authorities to enforce its court’s return order; and
· Determine and help implement alternative strategies in the case of abductions to countries that are not parties to the Hague Convention.
If retained by a parent who is alleged to have abducted a child to a foreign jurisdiction, international counsel will assist the client to retain local counsel in the foreign jurisdiction, assist in preparing the defense and assist in defending any actions that the left-behind parent asserts in the state from which the child was removed.
If a child is abducted from a foreign country to the United States, international family law counsel’s representation of either party may include:
· Appearing in the action, either directly, through local counsel or pro hac vice.
· Working with local counsel in the foreign jurisdiction to procure affidavits concerning the extent of the parties’ custody rights and to determine whether to institute custody proceedings.
· Preparing the Hague Convention case for a hearing (invariably on an expedited basis since the treaty calls for prompt action and ICARA allows American courts to take immediate measures to protect the child).
· Trying the case.
· Handling a host of post-hearing matters, including prosecuting or defending against claims for payment of the applicant’s costs, fees and expenses in accordance with 28 U.S.C. 11607.
When international people wish to divorce, international family law counsel may help with:
· Selection of the forum. This requires a determination of which jurisdictions are available concerning (a) the marriage, (b) the real property, (c) the personal property, (d) custody of the children, (e) child support and (f) spousal support. Counsel must then determine the applicable laws for each jurisdiction, including the conflict of law rules and make predictions as to the likely outcomes. Divorce laws vary considerably around the world, as do the actual practices of divorce courts. Selection of the best forum is often the single most critical decision in an international family law case.
· Advice as to initial steps to be taken or not taken. Typical issues are whether the client should (a) relocate; (b) take the children to another country; (c) remove assets; (d) institute suit immediately; and (e) seek immediate injunctive relief.
· Retention of local counsel.
· Development and implementation of case management strategy, including coordinating factual investigations, taking discovery, responding to discovery requests, handling pre-trial motions, preparing for trial and handling appeals.
International family law counsel may assist clients who wish to relocate with a child to a foreign jurisdiction or wish to prevent the other parent from doing so.
Counsel’s representation might include advising or procuring advice concerning the left-behind parent’s ability to enforce visitation rights in the foreign country. For example, a parent seeking to enjoin a Japanese national from taking their child to visit Japan might retain international counsel to secure evidence establishing that foreign parents are powerless to secure a child’s return from Japan. This might include evidence establishing that Japanese courts will not enforce foreign visitation orders; that in Japan the Japanese parent customarily receives sole custody; that Japan is not a party to the Hague Convention; and that the U.S. State Department warns Americans that Japanese courts will not help them secure their children’s return even if they have an American custody decree.
International family law counsel also assist in international child custody matters. This includes determining which is the best jurisdiction, assisting foreign local counsel if the action is instituted in a foreign country, helping resolve problems arising from the institution of custody actions in more than jurisdiction, and developing case strategy.
International family law counsel play a key role in assisting clients and family lawyers handle a multiplicity of complex international family law matters.