The increasingly effortless globalization of international commerce and travel fails to recognize the equally increasing challenges posed by the world still being cut up into perhaps over a thousand family law jurisdictions, none of whose laws perfectly align, and many of which represent outright contradictions. As people become more and more mobile for work, study and personal reasons, many will bring their families with them, or found new families in their adopted countries. But when some of those family units breakdown, spouses and children can become geographically and financially marooned, unable to obtain divorces, unable to move with children, pursuing children who have been wrongfully removed, and unable to obtain financial support.
The world’s nations have not been blind to this international family law conundrum. The Hague Conference on Private International Law has devoted a lot of time to family law, even if the early motivation of the Conference was more to harmonize commercial law. The challenge is that while likely every legal system of the word recognizes a commercial concept like the contract, and that contract law has effectively been around for thousands of years as without it even early civilizations could not have developed, some suggest family law was only invented with the advent of no fault divorce, prior to which it was mostly only the domain of the rich.
There remains very little truly “international law” in the world, being law that applies commonly in all countries, or at least in countries that have signed up to and implemented international treaties. There is some public international treaty law like the United Nations Convention on the Rights of the Child which has application in the family law world, but for the most part family law is “transnational” rather than “international” in nature, meaning individual countries (or provinces and states within those countries) need to figure out how their clashing incompatible laws can somehow work in consort when spouses, children and property might be spread amongst multiple jurisdictions.
“Residency” is probably the most important word to keep in mind for transnational family law (for actual or prospective spouses and children), followed by the phrase “location of property.” Residence and location of property most drive where which country’s law will or should apply within the context of the five key pillars of family law: (1) marriage; (2) divorce, (3) property division, (4) spousal and child support and child custody.
Why is Marriage So Easy & Divorce so Difficult?
The nations of the world present a surprising uniformity in making marriage relatively easy, though there could be residency or religious limitations on marriage. However, when it comes to breakdown of those marriages, the world’s a thousand piece jurisdictional jigsaw puzzle, missing a bunch of the key pieces.
1. Marriage - From a transnational family law perspective, I usually don’t see a lot of trouble over people having been lawfully married. Most countries will recognize each other’s marriages. And most people understand that some kind of government approved marriage licence is necessary in order for a marriage to be valid, such that if they’re refused a licence due to not meeting local requirements, they usually don’t attempt to proceed marry there anyway.
The threshold for marriage is often simple proof that you’re of a certain age, not married to anyone else, and not too closely related to the person you are marrying, but globally marriage laws remain a mosaic with varying ages, abilities to have more than one spouse, and consanguinity requirements. There could also be religious requirements, or sexual identification requirements.
The most common difficulty for marriage recognition may be where couples decide to engage in religious marriages, fully in accordance with the laws of their religions, but don’t believe it necessary to obtain civil recognition of those marriages in the locations they’re married, perhaps because that is impossible due to lack of residency. While the marriages might endure for years as completely valid in the eyes of the couples, their families, and their religions, other states might not consider them valid for the purposes of civil benefits or immigration because of the lack of civil recognition.
2. Divorce - Generally you don’t need to get divorced where you got married. The trick is that most places have a residency requirement (and a waiting period) in order to apply for a divorce. For those places with very easy divorce qualifications, you’ll still need to verify if your home country and the place in which you got married are going to recognize that divorce.
Just because one jurisdiction declares you divorced doesn’t mean other places are going to recognize it, especially if they require you to account for the “big three” of family law already being settled prior to divorce recognition: (a) property division; (d) child support; (c) spousal support.
Increasingly in common law jurisdictions, divorce by itself doesn’t do a lot for you other than permit you to remarry. Property division, child support, and spousal support are commonly first dealt with by way of separation agreement or court order. You can certainly wrap up a request for a divorce into the big three, but it’s only through solving those three issues that you can consider yourself free of the entanglements of family life.
While a court might not give you a divorce unless those three issues are settled, you can settle the big three without a divorce. Indeed, some couples are legally separated for decades and never bother with divorce until one of them decides to remarry.
Follow the Money
3. Property Division - It often makes most sense to sign a separation agreement or bring separation court proceedings in the jurisdiction where most of your property is located. That way local courts can enforce whatever you agree to, or impose a settlement if agreement is impossible. Interim relief - like the forced sale of a family home that a separating couple can no longer afford to maintain - can also be granted that way.
Even if you have the potential to use the law of a place where your property isn’t located in order to divide it, if voluntary measures to split it up fail you might need to recommence legal proceeding a second time where the property is located if you have an out of jurisdiction court order pronouncing on asset division. Many incorrectly assume because they have a court order from one place, all courts worldwide (or even within the same country) will simply rubberstamp foreign order enforcement; rather, you should assume a huge new fight every time you enter a new jurisdiction with that order.
While you might think there must be a simple way to just file a foreign court order in another jurisdiction, and that place will automatically recognize it and give you what you want, that unfortunately not the way it works is your ex-spouse fights you on recognition.
This isn’t to say a property order from another jurisdiction is worthless. Some couples could have property in several jurisdictions, and they ultimately need to pick only one place in which to sign a separation agreement or have a court settle their issues. Multiple separation agreements for multiple jurisdictions of property might also be possible, but great care must be taken that the agreements don’t contradict each other - even in a minor way - as it then might be impossible to know which agreement should be followed. But generally divorce would only happen in one place, as while the separation agreements are in a sense no more than contracts between parties, divorce is usually granted by the state under a statutory scheme, or sometimes by a religious court with government sanction.
If all goes as it should, and each splitting spouse upholds their side of the bargain in a separation agreement dealing with division of all assets, inter-jurisdictional property problems will be a non-issue. But if agreement is impossible, or isn’t fully implemented, and thus a forced resolution to family property issues is necessary, then legally starting off in the right place is crucial to avoid financial and emotional exhaustion in a multi-year battle over transnational judgment enforcement.
Follow the Support Enforcement Tools
4. Spousal and Child Support -Executing an agreement or bringing court proceedings for spousal or child support in the place where the payor is resident makes the most sense when possible, as then like for property division it will be easiest to enforce payment by using the court process and civil administrative support systems of that jurisdiction if after you obtain a spousal support order the payor refuses to pay.
Many jurisdictions have enacted much greater enforcement powers for family support payments than for other kinds of civil debt. Cancellations of government permits and seizure of income tax refunds can all be very effective in encouraging family support payment compliance. But only if the payor is in a jurisdiction with those measures, and that jurisdiction recognizes the support order you have in hand.
Of course if the law of that jurisdiction isn’t advantageous for spousal or child support, proceeding elsewhere might be more advisable. But if that location where the payor is located refuses to recognize the foreign support order, perhaps because of fundamental legal system incompatibility, then the foreign proceedings might have been pointless unless there is a chance in the future that the payor might move to a jurisdiction more open to enforcing the order.
Follow the Children
5. Child Custody - Jurisdictions generally will only deal with child custody if the children are resident in the jurisdiction. What being resident means can have infinite interpretations. While emergency applications to bend the rules on residency due to the children being in danger may be possible, generally being on holiday in Florida does not guarantee the Florida courts will take jurisdiction if you decide you don’t want to return to Canada with the children after the March Break vacation .
Even where children have been wrongly taken from one jurisdiction to another, while you can seek diplomatic help from your own government in making a request to the other government for voluntary return of the children, if the parent who has the children refuses voluntary return, you’re going to wind up in court wherever the children might be located. And be prepared for a fight that might last years, even if you’re in a Hague Convention jurisdiction, since appeals are always possible.
Although the Hague Conventions have agreed upon many principles concerning the voluntary return of children to another jurisdiction, many countries haven’t signed on to the Hague Conventions, and even for those who have it’s their own national laws which implement the Conventions. The Conventions don’t have their own court systems, and don’t have supranational rules that trump the domestic laws of states where children are found.
The 4 Principles of Family Law Jurisdiction
1. For marriage and divorce, ensure you not only qualify under the laws of the place you are planning the marriage or divorce, but also that the place(s) where you ordinarily reside will recognize the marriage or divorce.
2. For family support (spousal or child) proceedings, generally attempt to commence proceedings wherever the payor is resident.
3. For family property proceedings, generally attempt to commence proceedings wherever the property is located.
4. For child custody proceeding, generally commence proceedings where the children are ordinarily resident, which might not be the same as the location they are found in at the time of a parental split.
There are unfortunately a myriad of exceptions to these principles. But at least using them as a base minimize that risks of wasting huge amounts of time and money in the wrong jurisdiction.
Gordon Scott Campbell practices transnational and inter-jurisdictional family law throughout Ontario, Canada. His work especially involves complex international custody, support and property disputes including appeals. He has served with the Department of Justice Canada, Global Affairs Canada, and as a delegate for Canada to United National and APEC meetings. Learn more at www.nofearfamilylaw.com.