Crossing borders: international family law
Family & Relationship Law eBulletin - 30 June 2014
The breakdown of an ex-pat relationship requires a careful approach to managing legal issues. If you or your partner lives overseas or has significant overseas assets and you are in the process of separating, it’s a good idea to be aware of some of the key things that you will need to consider.
In this article we look at some issues that commonly arise when an international relationship breaks down.
- Legal forum shopping - which jurisdiction is best for you?
- Working out which is your preferred jurisdictional forum
- Jurisdictional challenges
- Relocation and child-abduction issues
- International maintenance and child support obligations
- Getting advice
It’s important to be aware that the law of more than one country can apply to property and/or parenting issues when an ex-pat couple separates.
As the different laws of each country provide different practical outcomes, it is generally a good idea to conduct an appraisal of which country’s laws may apply, and which of these jurisdictions will give you the best result in the event of litigation. Steps may then be taken to ensure that negotiations or litigation take place in your preferred jurisdiction.
For example, if you live in Australia, your partner lives in Singapore, and you collectively own property in Australia, Singapore and the United Kingdom, then the law in all three of these jurisdictions may apply. In this situation, your lawyer should look at things like which jurisdiction would most likely get you a better result, and how can that jurisdiction be challenged and defended?
In order to properly consider the merits of the various jurisdictions available to you, you will need to obtain preliminary legal advice from practitioners experienced in each of the jurisdictions that are relevant to your situation. Ultimately, if agreement is reached or court orders are made, you may also need to engage legal services in each country, for example, to avoid adverse taxation consequences.
The legal rules that apply to family and relationship law matters in different countries are complex and changing. What applies in one jurisdiction may well not be the case in another. For example, issuing proceedings or seeking particular court orders in a country can impact on other rights that you might otherwise wish to pursue. Without an understanding of these issues, you risk an unfavourable outcome.
If court proceedings are already underway in another country, you must be very careful regarding how you respond to those proceedings. Actions which lawyers commonly undertake in domestic cases, such as filing a defence or response, may make it difficult to subsequently challenge the jurisdiction of that other country or to later seek orders in Australia.
Another issue that we commonly see with separating ex-pat couples is an application by one partner to “relocate” overseas with the couple’s children and, in some instances, children are taken out of Australia against the wishes of one parent.
In these types of cases, the Hague Convention on International Child Abduction may be invoked and for non-signatory countries, other steps may also be required in Australia and abroad. The Hague Convention is an agreement between many countries around the world to uphold orders made in other countries in relation to children. However, not all countries are signatories to this Convention. These applications are technically difficult and require specialist knowledge and experience to navigate.
Maintenance and child support orders and agreements may be enforced between Australia and other countries and it is important to be aware of your potential liabilities in this regard at the outset of settlement negotiations.
If you are involved in a relationship breakdown that crosses international jurisdictions, it is important that you secure appropriate legal advice from an organisation with alliances in other countries.
Lander & Rogers is experienced in international relationship and family law matters, including international maintenance and child support, and we have alliances with many international firms.
Our membership of two leading international law networks, both endorsed by Chambers Global, means that we are able to support the interests of our clients in every overseas jurisdiction. We regularly cooperate with overseas lawyers to provide the best outcome possible for couples who are in international relationships.
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.