October 4, 2013

Cross cultural divorce takes centre stage at high-profile international legal conference

Critical and common global issues including the relocation of children, the definition of domestic abuse – and the cultural complexities in drafting pre-nups were high on the agenda of the International Academy of Matrimonial Lawyers (IAML).

Jones Myers partner Fiona Kendall was a guest of one of the fellows of the illustrious academy – an organisation of global family lawyers with particular expertise in international matrimonial law, including cross-jurisdictional matters.

Fiona, a trained collaborative family lawyer specialising in financial remedies, is an expert in cross-border matters. She examines the key issues under the spotlight for couples and divorce lawyers at the Buenos Aires conference.

“The conference reinforced how family law reflects the culture of a particular country – and how that law won’t always transfer to another country or culture.  As lawyers we may hear of legislation in a country such as New Zealand, which is very progressive, without recognising that such a law wouldn’t work elsewhere.

Our clients are more multi-cultural than decades ago. The days of marrying someone in your own village are long gone in many countries as people are increasingly more mobile. The three key themes of the conference reflected these cultural differences – recognising that whilst cross-cultural marriages are very common and it is easy to meet someone from another country, it can be a huge challenge if that marriage breaks down.

Relocation of children

The global trend of inter-cultural marriages means that if couples divorce children may be relocated to another country. Ahead of the conference the IAML sent out a comprehensive questionnaire to members to examine trends and issues across different jurisdictions. The findings ran to some two hundred pages.  Some of the themes were highlighted in a role play at the conference featuring an Argentinian father and a Scottish mother who, post-separation, wanted to return to live in Scotland with their children.  As a lawyer qualified in Scottish law I watched this role play with considerable interest as delegates discussed the living arrangements of the family and what would be in the children’s best interests.

Coercive control

This is a term used to describe domestic abuse and the conference looked at how different counties view and define coercive control. In some countries financial control is viewed as a form of abuse – so a man telling his wife how much she can spend, and on what, would be seen as coercive control in a divorce case.  However, in other jurisdictions, judges appear to apply a much narrower definition with only violence within a relationship viewed as domestic abuse.

“It is important for family lawyers to understand that what is unacceptable in one country or culture may be seen as normal in another as there are implications for how we handle divorce cases across different jurisdictions.”

Pre-nuptial agreements

The third theme of the conference was of particular interest to me as I draft pre-nups regularly.  Discussions highlighted the complexity and challenges of compiling pre-nups across different countries and in different languages to ensure that they are robust enough to withstand legal challenges.

If a couple have assets, property or business interests in several different countries then mirror agreements may need to be drawn up in each of the relevant jurisdictions.  Translations may be required. The conference debated whether we might be better incorporating the agreements into one ‘omnibus’ version and asked challenging questions about the accuracy of translations and how to decide which jurisdiction takes precedence.

It was a real privilege to be a guest at the conference that brought together some of the world’s most influential family lawyers.  It can only be of benefit to our clients if we share information and ideas with our colleagues around the world and embed the very best matrimonial law practice into our own firms.”

If you have any questions about cross-jurisdiction family or divorce issues including children’s matters or pre-nuptials then please then do email us or give us a call on 0113 246 0055.