ARTICLE: THE WORLD WIDE SPIDER’S WEB OF INTERNATIONAL FAMILY LAW ENFORCEMENT
The world is not such a big place anymore and as a society our lives have become increasingly global. The vast majority of our clients (and/or their partners) have assets overseas; a number have dual nationality or have relocated to/from the UK; many have taken advantage of more beneficial tax regimes offshore. Such cross-jurisdictional considerations do not just apply to those with exorbitant or even moderate wealth.
The rising international movement of people and assets is somewhat at odds with the markedly less fluid ability of the UK Law to stretch its ambit. However many, despite their international lifestyle, still wish to avail themselves of the UK legal system and at an early stage seek advice and take steps to ensure that their divorce is dealt with within this jurisdiction. One therefore has to address how those UK court orders are treated when seeking to enforce them against a party living abroad or against foreign assets.
It is only fair and reasonable that the laws of one country should not be forced upon another but there is clearly a need for some crossover and compromise. This need has ultimately given rise to a number of European Council Regulations and those most utilised within the realms of Family Law are more commonly known as “Brussells I”, “Brussells II bis” and the “EU Maintenance Regulation”, together with a number of International Treaties that the UK is a party to. Whilst such regulations and treaties set out the procedure and rules for enforcement between the UK and other nations, they are not without hurdles of varying heights that need to be jumped before enforcement can be achieved. For example, the enforcement of a maintenance order on a party living abroad is far more common and has been something the courts have been dealing with for many years and so a more streamlined procedure has been adopted here. However, the concept of enforcing orders against foreign property, capital and more complex financial structures abroad is less systematic.
The cultural, social and moral differences between nations add an additional intricacy and further potential resistance to the enforcement of court orders made in the UK relating to Family Law. Furthermore, there can be idiosyncrasies generated by matters such as a State’s national or religious law or their administrative procedures that need to be overcome and in some countries these additional hurdles can prove insurmountable. In such circumstances consideration needs to be given as to where in fact those legal proceedings should be commenced, to provide the client with the best opportunity of securing an appropriate settlement.
It is important when dealing with cross-jurisdictional matters that legal advice is sought at the earliest stage possible. Even where matters are amicable between parties, Agreements and Orders need to be carefully drafted to overcome some of the pitfalls of overseas enforcement. Specialist legal advice may also be required in the country where enforcement is sought or to actually assist in commencing proceedings abroad. As such, at Russells we have developed and work hard to maintain strong relations with international practices in order to ensure our clients receive the best advice and service when they need it.