With a rise in the geographical mobility of workers and their families, so comes a rise in the number of international marriages and relationships. Inevitably many of those marriages and relationships fail. As a result, relationship breakdowns increasingly have a cross-jurisdictional dimension.
It is increasingly important for clients and legal practitioners alike to be aware of the complexities involved in dealing with international family law issues. Cases involving conflict of laws and questions about the application of foreign law are becoming more and more common and many international family law issues such as the recognition of same sex marriages, the rights of cohabitants and pre and post-nuptial agreements, have been hotly debated in the press and in wider society.
There is no evidence that the growth in the number of family law cases with an international element will abate any time soon. This is an area of the law that is incredibly complex, involving many cross-cultural jurisdictions and hence conflict of laws governing financial arrangements, children, cohabitation and marital agreements. Add to this some relatively new challenges, such as surrogacy, overseas adoption and alternative methods of dispute resolution, and it is hard to pin down a definitive process when approaching a family law case that involves multiple jurisdictions.
Although the rise of cross-jurisdictional cases are on the up globally, it’s also worth remembering that the issues can be just as complex closer to home. Scotland and England are also different jurisdictions, with different laws and procedures.
As well as the differing issues, each jurisdiction will have a different approach to process of divorce, including length of separation, grounds for action, and involvement of mediation or arbitration. The “race to jurisdiction” is often the key element in an international case. In many situations, where a case starts, it finishes.
Couple this with the fact that one jurisdiction will usually be beneficial to one party (therefore one may assume that proceeding within the alternative jurisdiction will be of benefit to the other party) and the reason for the “race” becomes clear.
To complicate matters further, where one party resides in Scotland and the other in England, which of the two countries was the parties’ home immediately prior to separation is of more relevance than in which jurisdiction proceedings were first commenced.
Legal advisers must be able to advise clients on whether they would better benefit from their case being heard in one jurisdiction or another. A single jurisdiction has to prevail, and the first challenge is to establish where the case is going to be heard.
In cases where there is doubt about which country has jurisdiction, these decisions will likely be made on the basis of a number of factors. Residence at the time of the relationship breakdown is very important, but other key contributors will be ownership of property in two or more different countries, the main residence of any children of the relationship, and the location of other financial assets, including co-owned businesses.
It is crucial for Scottish solicitors dealing with international cases to have an awareness and insight into these issues. Because a comparison of the law in two different countries is often required, solicitors need to have a network of international colleagues who can be consulted to give expert advice on the procedures in that other country. This allows an informed decision to be made and where best for a client to have their divorce handled.
Divorce and family law issues are complex in any case, due to the emotions involved. This rise in multi-jurisdictional cases only puts more pressure on, and having an awareness of the best approach is crucial to guiding couples and families at such an emotionally trying time. • Alasdair Loudon is a partner at Turcan Connell and a fellow of the International Academy of Matrimonial Lawyers (IAML). www.turcanconnell.com