International family law describes the laws that apply to family law matters that have an international element. That element may be that a spouse, a partner, a spouse-to-be, or a child is a national or domiciliary of another country. Or it may be that the parents are in a country other than their country of origin, or that a child is away from its country of origin, or that spousal or partnership assets are in another country. It may even include a family that lives in the country of origin of all members of the family, one of whom might in the future be located overseas or have assets overseas. As such it could encompass almost all families since it is now the norm for families to have at least one member who is out of the country at some point of time.
Paradoxically, while we live in an era of globalization and instantaneous international connections, family laws remain almost completely local and parochial. Family law continues to be the domain of nation states and to be interwoven with local culture, religion, and history. Within some regions, of which continental Europe is the prime example, there is a trend towards some regional standardization of family laws but in general nation states continue to guard, often jealously, their sovereign right to promulgate family laws that purport to be right for their local society. Family law is handled in the United States at the state level. Although the differences between the states as to family law have been reduced in recent years, as a result of federal legislation in some areas (e.g., child support), the promulgation of uniform laws in other areas (e.g., child custody), and a general trend towards uniformity in all matters across the country, changes in family law are made by state legislatures.
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 German woman living in New York to marry in Bermuda, move from Chicago 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 returns with the children to live in Chicago, each party might well require legal advice regarding many matters, each having a significant international component, concerning divorce, custody, equitable asset division, child support, spousal support and child abduction.
Family lawyers may have little experience in handling international cases. If 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 regard prenuptial agreements skeptically, such as England. Other jurisdictions enforce marriage contraxts 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.
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 law and perhaps the forum, that is 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.
ABILITY TO MARRY/ EFFECT OF FOREIGN DIVORCES
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 the country, where a client resides. The following types of divorce present particular issues:
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.
Serving clients in the Commonwealth, U.S., and Internationally
Suite 2020, One Riverfront Plaza 401 West Main Street Louisville, Kentucky 40202
09:00 am – 05:00 pm
09:00 am – 05:00 pm
09:00 am – 05:00 pm
09:00 am – 05:00 pm
09:00 am – 05:00 pm
Copyright © 2023 Obi Law Group, PLLC - All Rights Reserved.
This is an advertisement. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
*Immigration Services are Offered Nationwide and Obi Law Group, PLLC does not offer or ADVERTISE General Business or Civil Law Services Outside of the Commonwealth of Kentucky Unless by, through, or in association with Licensed Local Counsel.