With the world becoming more interconnected each day, the issues facing a family court litigant are becoming increasingly complex, particularly as family disputes are now more likely to have cross-border or international issues. Below are five issues to consider when dealing with cross-border or international issues.
- Experience Matters: It is critical to work with experienced local counsel who are familiar with the aspects of the local and international family laws which may apply to your specific facts. Your local counsel should know and understand the interplay of the different legal processes in your jurisdiction and the local jurisdiction.
- Know the Concerns of Your Client: The needs, wants, and concerns of an international corporate executive going through a divorce are vastly different from a parent seeking the return of their child under the 1980 Hague Convention. Some international issues may need to be addressed in stages or simultaneously in different jurisdictions, so it is critical that you are fully aware of the client’s concerns, as they affect your ability to navigate these complex legal issues.
- Different Jurisdictions Do Things Differently: Simply put, each country’s laws are different, and these differences can critically affect the outcome of your case. One important distinction is the type of law a country may apply: common law or civil law. Common law is generally "uncodified” and relies on a mix of legal precedent and statutes. In a common-law jurisdiction, the court will apply case and statutory law to the facts of the case when making its decision, which may shape the law as a result. The basis of a common-law jurisdiction is an adversarial system: trials with witness testimony and exhibits as the basis for the court’s decision.
Civil law, on the other hand, is "codified" and relies exclusively on a continuously updated legal “code,” setting forth legal remedies, procedures, and punishments. In a civil-law jurisdiction, the court makes its decision within the parameters defined by the legal code. Decisions by the court’s decision have little to no effect on shaping the law, they simply follow what the law already states. As a result, the court tends to rely less on witness testimony and lengthy hearings.
Each type of law will not only require you to prepare your case very differently, it may also result in very different results depending on the issues raised. For instance, in a case involving the division of marital assets and debts, most civil law countries treat the marital estate as communal property and will likely divide the property by applying the legal code with little testimony from the parties. However, if the same case was heard in a common-law jurisdiction, the court is more likely to take testimony from the parties and witnesses during a trial before making factual analysis considering both case law and statutes.
- Make Yourself Aware: A basic understanding of the legal nuances of different jurisdictions can help you to not only be aware of what legal consequences your client is facing, it can also help you to choose the best strategy for the client’s situation.
- Get Documents Translated ASAP: If you are facing a legal situation in a foreign jurisdiction, having a translated copy of all relevant documents can help you quickly address the issues at hand.