Introducing the revamped International Family Law Handbook
It’s over three years since the last full review of Resolution’s Guide to International Family Law. Not only has it had a comprehensive overhaul but it now has a new name: Resolution’s International Family Law Handbook. This is the sixth edition of the handbook in some shape or form produced by Resolution’s International Committee (and I think at least the third one that I have been involved with).
The International Committee is made up of solicitors, barristers, judges and academics who specialise in international family law but, possibly uniquely to other Resolutions committees, we have a number of members who also either practise or are qualified in a number of other jurisdictions, including Scotland, Northern Ireland, the Republic of Ireland, Australia, Switzerland and UAE. Our committee members are also members of family law organisations in other jurisdictions, or of global organisations or the Hague Conference, or other international committees in England and Wales. That is perhaps what makes this handbook so unique and not something available elsewhere.
When we were last updating the handbook in January 2021, we were just working out what Brexit would mean for the practice of international family law in E&W. Eleri Jones and I (on behalf of Resolution) had been meeting regularly with the MoJ to work out the legislative changes needed and whilst we could see the gaps/problems, the issues in international cases have (arguably) been worse than we could have anticipated, with competing proceedings between E&W and EU Member States rife. We still don’t have a full picture as not all cases have concluded, nor have the anticipated issues with enforcement in EU jurisdictions properly played out.
Why is this relevant to you? International family law has a wide ambit and the content of this handbook will be relevant to so many cases involving Resolution members: sometimes its application is obvious, eg where a child has been abducted abroad, but it also applies where someone’s status affects their ability to stay in this country; where there are assets abroad; where the recognition of their E&W divorce may affect their ability to marry abroad; where shari’a law might apply; or where they move a few miles from Berwick-upon-Tweed (England) to North Berwick (Scotland).
The handbook includes two completely new chapters which, perhaps not coincidentally, are largely written by two newer members of the committee, namely on cohabitees and shari’a law. The latter includes not only shari’a implications for divorces in England and Wales but also looks at wider implications of shari’a law in Pakistan and UAE.
Below is not intended to be a summary of the chapters or their key points but hopefully some interesting points from a few of the chapters and an indication of why you should look at the handbook when dealing with an international case.
- Chapter 4 (Divorce recognition) – don’t assume that your client’s E&W divorce will be recognised throughout the EU
- Chapter 7 (Divorce jurisdiction) essential for anyone involved with (or potentially taking on) a financial remedy case involving foreign nationals, expats or assets abroad. We are seeing EU member states still applying the EU regulations in respect of competing E&W proceedings, particularly ‘first to issue’
- Chapter 8 (Intra-UK) includes a section on Scots law (a benefit of a committee including a Scottish lawyer). Matters have become more complicated post-Brexit – not only do you have obligatory stays but there is a divergence between E&W and Scots law as to jurisdiction for divorce which didn’t apply when the Brussels II grounds for jurisdiction applied throughout the UK
- Chapter 11 (Service) – since Brexit, a practice is creeping in of service of E&W orders by email which may be contrary to international conventions/law. Even if you are unlikely to get a district judge interested in (or to understand) the point, this may cause you issues on recognition abroad
- Chapter 13 (Evidence abroad) – have you thought about the (criminal) issues involved in taking evidence by video link abroad?
- Chapter 16 (Enforcement) – the main change is the disapplication of the Maintenance Regulation to enforcement of UK maintenance orders in the EU and vice versa. For this purpose, the relevant date is not when the order was made but whether the order was made pursuant to proceedings issued before 1 January 2021. Thereafter, recognition is not automatic in E&W. The debtor needs to be here or have assets here; this perhaps seems obvious but solicitors have made catastrophic mistakes in this regard
Chapter 17 (Children jurisdiction) – again big changes, but practitioners should not overlook the possibility of English jurisdiction being founded or continuing as a result of divorce proceedings where the child is habitually resident outside E&W- Chapter 25 (Immigration) – much more relevant since freedom of movement has been restricted by the UK leaving the EU (our membership of the EU conversely led to a proliferation of international cases). The handbook contains tips (or pitfalls) such as documents used in proceedings undermining your client’s case to stay in the UK
The Handbook will be available in print, as a PDF and as a print/PDF bundle at the end of December. You can pre-order here.
Daniel is chair of Resolution’s International Committee