Reflections on International Considerations

It is often a surprise to our international clients how stark the differences can be in family law and procedure worldwide. In almost every case involving parties either born, or living in Europe or further afield, there has been a conversation in which clients express shock at different elements of the English system. This is particularly true of financial cases.

Whilst by no means an exhaustive list, below are some of the areas in which choice of jurisdiction can lead to vastly different processes and outcomes.

Disclosure obligations

In England, the disclosure process of a financial case is usually the most time-consuming. First, obtaining and compiling the reams of evidence that must be exchanged with the other party and filed at court. Twelve months bank statements for every single account owned worldwide is just one example. Secondly, the list of questions and further requests which follow, especially in cases with complex finances or where trust is an issue. It is common to see third parties such as accountants or valuers instructed where expert knowledge is required or where there are complex financial structures.

By contrast, there are some jurisdictions in which parties simply provide figures (without evidence in support), and here trust forms an important part of the process. That, of course, might be tricky for some. The actual categories of assets which must be disclosed also vary, with England at the more expansive end (largely due to the breadth of orders which can be made, which is dealt with in more detail below). There are pros and cons to both approaches. For cases in which there are concerns about non-disclosure, the English approach will appeal, with adverse consequences for parties who refuse to comply with their disclosure obligations. However, this level of disclosure can lead to increased costs. If the separation is more amicable and there is trust between the parties, more limited disclosure can be a better approach. As always, it depends on the facts.

What factors can be considered by a judge?

Separation and divorce can be an emotive issue. These emotions are heightened where the separation has come about as a surprise, or the circumstances of the split have involved third parties.

Conduct is one of the factors that an English judge may consider when deciding what financial order should be made. However, conduct is more strictly defined than might initially be realised – the fact that your partner had an affair which led to the breakdown of your relationship is very unlikely to be relevant to a financial judge (albeit it is likely to be one of the most important elements for you). This can be a bitter pill to swallow. Rather, conduct such as non-disclosure of significant assets or wilfully transferring assets out of reach will be taken into account.

However, in other countries such as France, not only can conduct such as adultery be considered, it can have an impact on the financial order made. The adulterous partner could be financially penalised. This may be good news for some and not for others. Again, it is easy to see the pros and cons to both approaches – one arguably more tailored to helping a client emotionally as well as financially, the other trying to remove as much emotion from an already incredibly stressful situation.

What exactly can a court order?

Judges in England have a lot of discretion in terms of what they can order – lump sums, periodical payments for varying lengths of time, pension sharing…..the list goes on. For those who commend the English system it is seen as positive that a judge can tailor a solution to what works for the particular couple or family involved – flexibility should in theory breed fairness. For critics, the discretion is too wide and it is argued that it is difficult for anyone to know exactly what they will pay or receive and for how long.

Even just across the border in Scotland, the system is completely different, with formulas used to work out terms of periodical payments. Likewise, in France, there is an upper limit of 8 years that a party can be ordered to make monthly payments to their ex-spouse. Clearly, the choice of jurisdiction can have long lasting consequences.

Public vs private?

Transparency is a hot topic across all areas of law, and family law is no exception. There are ongoing discussions regarding the extent to which family law proceedings should be open to the public and there is a fine line between ensuring that users understand the entire court process, and keeping private matters private. At present, there is a new transparency pilot in certain family courts around the country, which enable media professionals to attend hearings in financial matters. If this is the case, parties are informed and are able to raise objections. However, given the strict guidelines in terms of what exactly can be published (anonymisation being a key component), it is not a given that a judge will disallow a media professional entrance to court even if the parties object.

The above is by no means an exhaustive list, as every jurisdiction has its own law and procedural rules. Our number one piece of advice remains – if your case is likely to have international links or considerations, make sure that you consider legal advice in the relevant jurisdictions. To not do so could be (quite literally) costly.

Written by Colleen Hall (née Nwaodor) at Kingsley Napley.