By Jeremy D. Morley
New York Law Journal
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:
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 U.S. 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.
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:
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, 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:
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:
When international people wish to divorce, international family law counsel may help with:
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.
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