Saturday, 13 October 2012

The Impact of International Law on Families

In society today the modern family unit has changed. It is no longer the case of husband, wife and 2.5 children. The family unit today maybe an unmarried couple of opposite sex or a couple of the same sex. With this change in society there has also been a lot of change within the employment markets with husbands and wife's travelling all across Europe and on some occasions living apart in different countries. So when a separation occurs in such a case, the argument is often  whether UK law or the law of another country should apply.

The reality is that as lawyers we are comfortable with the UK laws which regulate the breakdown of a relationship but when there are other elements of law that can apply, unless solicitors are aware of the limits of their expertise and know when to call in the experts or tell the client clearly that this is not an area that they familiar with, couples that are part of the overseas relationships can suffer. There will certain aspects of European laws which may favour one party over the other. In some cases they may provide your clients with a more favourable outcome.

Where the proceedings are started will determine the law which will apply to that matrimonial breakdown. If for example parties have not lived in the UK for a certain period of time before they file the proceedings then the UK laws will not apply. However, it may that the husband or the wife return the UK and reside here for the specified time before filing a Petition under UK laws and then jurisdiction is opposed by the other party .

The modern globe trotting families have other complications in their affairs should the marriage or relationship end. Often there may be homes in more than one country or multiple investments made in the different countries. This can complicate the management of the financial settlement which may impact on the financial resources available to each party. Over and above that there may be pre nuptial and post nuptial agreements in place which one party may seek to have considered unfair if it discriminates against one party or the children. The post nuptial agreement/ pre nuptial agreements are another issue and these have been discussed in a previous article.

In a case involving international laws it is important to ensure that the appropriate experts are appointed to assist the lawyers based in the UK to ensure that the settlement that is reached is fair. The question is can UK based solicitors represent their UK based clients who own property abroad. The answer is yes they can provided that they know when to call in the experts and ensure that the correct team is put together to represent the financial interests of the client. It is important to also understand the legislation and provisions that apply in the country in which the other spouse is resident. Only if you know the laws regulating a separation in the country of their chosen habitual residence can you ensure that you can advise them of where there interests are better protected. It may be beneficial to apply the laws of the other state to reach a settlement in which negotiations will take place between a UK lawyer and an overseas lawyer.

Over and above the issue of the financial settlement is the issue relating to contact between the children and the non resident parent. Where should the children reside and with which parent? Here is the issue is not just about with which parent but in which country. Often if the parties live in different countries this is a major issue and often one party may seek to return to their country of origin after the marriage has ended. Children will inevitably suffer as contact cannot be arranged each alternate weekend and it is important to be inventive with the ways that contact can be accommodated. There are many sites such as face time, Skype and other such applications that can ensure that the relationship between the children and the non resident parent continues. Again, the situation becomes more complex in terms of child maintenance and again the issue of which state will regulate it and how will non payment be recovered become major parts of the lawyers considerations.

In my view it is important to recognise that the laws relating to such families can be a minefield and experts should be drafted in to ensure that any client is not at a disadvantage when the marriage has ended and the situation requires the application of international laws. At Leeds Family Law we are acutely aware of international laws and their complications. Our solicitor will not hesitate to refer the client to an expert should this be required. At Leeds Family Law we put together teams that will represent our clients interests fairly and justly who work alongside our experienced Director/Solicitor and Collaborative Lawyer, Talvinder Penaser. We represent many clients with properties and investments abroad. If we find that we are in a position where an expert is required we will locate such experts and ensure that our client is protected. If you are in a similar situation and require advice please do not hesitate to contact us on 0113 3944145.