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International
Comparative
Legal Guides
Family Law 2020
A practical cross-border insight into family law
Third Edition
Featuring contributions from:
Arbáizar Abogados Corbett Le Quesne Millar McCall Wylie LLP, Solicitors
Ariff Rozhan & Co Diane Sussman Miller du Toit Cloete Inc
Asianajotoimisto Juhani Salmenkylä Ky, Fenech & Fenech Advocates Pearson Emerson Meyer Family Lawyers
Attorneys at Law FSD Law Group Inc. Peskind Law Firm
Attorney Zharov’s Team Fullenweider Wilhite Quinn Legal
Borel & Barbey Haraguchi International Law Office Ruth Dayan Law Firm
Boulby Weinberg LLP International Academy of Family Lawyers Satrio Law Firm
Ceschini & Restignoli (IAFL) TWS Legal Consultants
Chia Wong Chambers LLC Kingsley Napley LLP Villard Cornec & Partners
Cohen Rabin Stine Schumann LLP Lloyd Platt & Co. Wakefield Quin Limited
Concern Dialog Law Firm MEYER-KÖRING Withers
ICLG.comInternational
ISBN 978-1-912509-96-6
ISSN 2398-5615
Comparative
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Family Law 2020
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Third Edition
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Publisher
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Contributing Editor:
Sales Director
Florjan Osmani Charlotte Bradley
Senior Editors Kingsley Napley LLP
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Rachel Williams
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Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal
or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise
from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice
should be taken from a qualified professional when dealing with specific situations.Table of Contents
Expert Chapters
1 International Marital Agreements – the Approach by the English Court on Divorce
Charlotte Bradley, Kingsley Napley LLP
The Practice of International Family Law
7
Rachael Kelsey & Mia Reich Sjögren, International Academy of Family Lawyers (IAFL)
13 Brexit and Family Law
Charlotte Bradley & Stacey Nevin, Kingsley Napley LLP
17 Arbitration in Religious Communities
Gary Conway, Lloyd Platt & Co.
Country Q&A Chapters
21 Armenia 121 Japan
Concern Dialog Law Firm: Narine Beglaryan & Haraguchi International Law Office: Kaoru Haraguchi
Seda Soghomonyan
128 Jersey
Australia Corbett Le Quesne: Barbara Corbett &
28
Pearson Emerson Meyer Family Lawyers: Nicholas Le Quesne
Sheridan Emerson & Louise Carter
135 Malaysia
38 Bermuda Ariff Rozhan & Co: Ezane Chong
Wakefield Quin Limited: Cristen Suess
142 Malta
Canada – Ontario Fenech & Fenech Advocates: Robert Thake
45
Boulby Weinberg LLP: Sarah Boulby & Oren Weinberg
147 Northern Ireland
Canada – Quebec Millar McCall Wylie LLP, Solicitors: Clare Lenaghan
51
FSD Law Group Inc.: Pierre-Hugues Fortin &
Marie-Hélène Saad 154 Russia
Villard Cornec & Partners and Attorney Zharov’s Team:
England & Wales Julie Losson & Anton Zharov
58
Kingsley Napley LLP: Charlotte Bradley
162 Singapore
Finland Chia Wong Chambers LLC: Wong Kai Yun
66
Asianajotoimisto Juhani Salmenkylä Ky,
Attorneys at Law: Hilkka Salmenkylä 170 South Africa
Miller du Toit Cloete Inc: Zenobia du Toit & Sandra Van
France Staden
73
Diane Sussman: Diane Sussman
178 Spain
Germany Arbáizar Abogados: Amparo Arbáizar
81
MEYER-KÖRING: Marie Baronin von Maydell &
Nikolaus J. Plitzko 186 Switzerland
Borel & Barbey: Sonia Ryser
Hong Kong
87
Withers: Sharon Ser & Philippa Hewitt 193 United Arab Emirates
TWS Legal Consultants: Nita Maru
97 Indonesia
Satrio Law Firm: Andrew I. Sriro 198 USA – Illinois
Peskind Law Firm: Steven N. Peskind
103 Isle of Man 204 USA – New York
Quinn Legal: Louise Byrne & Claire Clampton
Cohen Rabin Stine Schumann LLP:
109 Israel Gretchen Beall Schumann
Ruth Dayan Law Firm: Ruth Dayan Wolfner &
Tali Sivan Lahav 210 USA – Texas
Fullenweider Wilhite: Lauren E. Waddell
115 Italy
Ceschini & Restignoli: Roberta CeschiniChapterXX
3 13
Brexit and Family Law
Charlotte Bradley
Kingsley Napley LLP Stacey Nevin
reached with the EU that impacts family law, and updates may be
Introduction necessary.
More than three years have passed since the result of the Brexit
referendum and the prospects of a deal remain uncertain. The
Divorce
United Kingdom now has a new Brexit deadline of 31 October
2019, after several unsuccessful attempts to reach a deal. The risk
of a no-deal Brexit looms large and UK practitioners are well At present, all parts of the United Kingdom (England & Wales,
advised to prepare for this eventuality. Scotland and Northern Ireland) are signatories to Council Regulation
(EC) No 2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of judgments in matrimonial
New Domestic Legislation
matters and the matters of parental responsibility (“Brussels IIa’’)
The UK government has already taken steps to change its domestic by virtue of being Member States of the European Union. Article
law, in readiness for Brexit. Article 288 of the Treaty on the 21 provides for there to be automatic recognition in all Member
Functioning of the European Union (the TFEU) requires all States of divorce, legal separation or marriage annulment orders,
Member States to “adopt regulations, directives, decisions, recommendations with the limited grounds for non-recognition set out in Article 22.
and opinions” made by the European Union. Various EU Regulations By virtue of Brussels IIa, we have a harmonised set of rules
and Directives are binding on the UK, and directly applicable. The across the European Union on jurisdiction, with a procedure
triggering of Article 50 on 29 March 2017 started the, now extended, stipulated in the event that there are competing jurisdictions. Whilst
two-year countdown to Brexit. Once the United Kingdom leaves the lis pendens rule is controversial, there is at least a uniform criterion
the European Union, it will cease to be a signatory to the TFEU, and for jurisdiction across all Member States, and we know what should
will therefore no longer remain subject to Article 288. Without happen in the event two competing jurisdictions are seized by both
proactive steps, all aspects of EU law would cease to have force in parties.
the United Kingdom; they would simply fall away leaving a legal Post-Brexit, the United Kingdom will cease to be a signatory of
vacuum. The UK government needs to fill that vacuum. Brussels IIa and the jurisdiction criterion will cease to apply. The
In readiness for Brexit, the English government has released a Brexit SI seeks to adopt the jurisdiction criterion for jurisdiction
draft Statutory Instrument (“The Jurisdiction and Judgments (save that joint applications are not currently possible in England and
(Family) (Amendment etc.) (EU Exit) Regulations 2019”) (referred Wales), with an additional ground of “sole domicile”. In the event
to as the “Brexit SI’’ throughout this chapter), which contains exten- of a no-deal Brexit, from a UK perspective, the lis pendens rule will
sive transitional arrangements in the event of Brexit. One end and forum cases will be decided in the same manner as cases
amendment has been made to that already (“The Jurisdiction and with non-EU forum disputes, namely on the basis of forum non
Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations conveniens. The Brexit SI expressly provides for this. Whilst some
2019 No. 836”), which is discussed further below. As a result of the practitioners may rejoice at the end of the lis pendens rule for UK-EU
Brexit SI, practitioners in England and Wales are starting to form a cases (a practice which can lead to arbitrary and unfair decisions),
picture of what family law in a post no-deal Brexit world will look the strain that a removal may place on the already stretched UK
like, at least in respect of outgoing decisions (i.e. decisions made by courts is a concern. Until test cases come through the courts in the
the courts in England and Wales in cases involving one of the post-Brexit era (assuming no deal), it is difficult to say whether the
remaining 27 EU Member States). In a similar fashion, the Scottish return to forum non conveniens will see increased court time and cost,
parliament has released a draft Statutory Instrument dealing with the as parties examine every connecting factor with the competing
position in Scotland following a no-deal Brexit (“The Jurisdiction Member States. Many practitioners fear that it will lead to lengthier
and Judgments (Family, Civil Partnership and Marriage (Same Sex trials, as evidence of fact is examined, longer witness statements and
Couples)) (EU Exit) (Scotland) (Amendment etc.) Regulations therefore, higher costs. In particular for courts dealing with litigants
2019”), although, save for touching upon Brexit issues for Anglo- in person, disputes could become very burdensome both of the
Scot cases, the Scottish position is beyond the scope of this chapter. courts and the parties.
Whilst nothing is final yet, what is clear from the Brexit SI is that, At present, UK divorces are recognised throughout the European
in the event of a no-deal Brexit, there are a number of areas where Union automatically by virtue of Brussels IIa. On Exit Day, this will
the position will be different post-Brexit compared to the position cease to apply, and reference will need to be made to the 1970 Hague
pre-Brexit, and the need for parallel advice in other jurisdictions will Convention. Presently, however, only 12 of the remaining EU
become ever more important. Some (non-exhaustive) examples are Member States are signatories to the 1970 Hague Convention.
set out here, which are correct at least at the time of writing ( July Whilst local advice should always be taken, it is considered that these
2019). By the time this chapter is published, further amendments 12 Member States are likely to recognise UK divorces. The 15 EU
may have been made to the Brexit SI or a deal may have been Member States who are not signatories present more uncertainty,
Family Law 2020 ICLG.com
© Published and reproduced with kind permission by Global Legal Group Ltd, London14 Brexit and Family Law
although politically, it is difficult to see why those Member States Member States who are contracted states, it will be necessary to check
would cease to recognise civil UK divorces, as they have recognised if that Member State has made any reservations or declarations in
them for so many years. At the risk of sounding repetitive, however, respect of the 2007 Hague Convention.
early local advice, in parallel, will be crucial. A positive change for the United Kingdom in respect of mainten-
ance post-Brexit is the amendment to the Brexit SI set out in “The
Same-sex marriages Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No.
2) Regulations 2019 No. 836”. As a result of the hard work of
Resolution, (in particular, Eleri Jones of the Resolution Brexit
Only 14 of the remaining 27 Member States allow same-sex Working Group), England and Wales’ domestic Children Act 1989 will
marriage, with seven countries actually banning same-sex marriage deal with jurisdiction for child maintenance claims under Schedule 1
in their constitutions. Only 13 of the 27 remaining Members States of the Children Act 1989 in the same manner as the Maintenance
recognise civil partnerships. Currently, under EU law, same-sex Regulation. Unlike the Maintenance Regulation, the Children Act
marriages are likely to be recognised. After Exit Day, it is not clear 1989 will apply to worldwide cases, not just intra-EU cases.
if same-sex couples will benefit from this protection. From an
outgoing perspective (i.e. cases going out of the UK), it is thought
that divorce arising from same-sex marriages should be covered by Pensions
the 2007 Hague Convention. Civil partnerships, however, do not Disappointingly for English and Welsh practitioners, the Brexit SI
appear to be covered. makes no provision similar to Article 7 of the Maintenance
Regulation ( forum necessitates), which will impact the ability to seek
Maintenance English pension sharing orders after a foreign pension sharing order
or agreement. These orders currently occur under Part III of the
Matrimonial and Family Proceedings Act 1984, and, for those cases
Currently, the United Kingdom applies the “Maintenance where there is no jurisdiction available (because the parties do not
Regulation” (Council Regulation (EC) No 4/2009). On Exit Day, the have an ongoing connection to England and Wales, save for the
Maintenance Regulation will cease to apply to the UK. As the United English pension), Article 7 provides a route to make that claim. As
Kingdom loses the Maintenance Regulation, so too does it lose the there is no similar provision in the Brexit SI, any parties without a
sole domicile restriction. Article 3 of the EU Maintenance connection to England (but for an English pension) will be unable
Regulation states that EU Member States only have jurisdiction for to make a Part III claim for an English pension sharing order after a
maintenance when either party is habitually resident in that country foreign order or agreement. Whilst this will only affect a small
or when ancillary to divorce proceedings, provided jurisdiction for number of cases, it is nonetheless a disappointment. For
the divorce proceedings is not based exclusively on sole domicile (or practitioners dealing with cases with that scenario, any application
sole nationality). This means that for cases where sole domicile is under Part III relying on Article 7 will need to be made before Exit
relied on (i.e. when other tests for jurisdiction cannot be satisfied in Day.
the UK or any other Member State, or where there are connections
with countries outside of the European Union), the United Kingdom
(as with the other member states) cannot make needs-based mainten-
Children Proceedings, Including Abduction
ance awards. This is a deeply unsatisfying position, and an example After Exit Day, the UK will no longer apply the provisions of
where it can be said that EU family law overreaches English law. Brussels IIa to children cases, falling back on the 1996 Hague
Post-Brexit, this restriction will fall away. However, before UK Convention on Parental Responsibility and Protection of Children
practitioners rejoice, this in itself will not be without problems. An (the “1996 Hague Convention”). A number of changes will arise as
order based on sole domicile may not be recognised or enforceable a result of this, some examples of which are considered here.
in some of the remaining EU Member States, and pleading multiple In losing Brussels IIa, the UK will lose the benefit of Articles
grounds (if available) may be necessary. 11(6) to (8) for cases of child abduction, which are not replicated in
Post-Brexit, the United Kingdom will apply the 2007 Hague the 1996 Hague Convention. These provisions enable applicants a
Convention on the International Recovery of Child Support and second attempt at return proceedings after Hague proceedings have
Other Forms of Family Maintenance (the “2007 Hague concluded and will no longer be available to UK-EU cases. The
Convention”) to maintenance issues, having now independently logic behind these provisions was to act as a deterrent to would-be
ratified it, and it will apply immediately on Exit Day. The 2007 Hague child abductors.
Convention does not, however, contain a code of jurisdiction in the Brussels IIa expressly requires expedition of cases in child
way the Maintenance Regulation does. Further, the Brexit SI does abduction, with cases to be determined within six weeks, save for in
not contain express rules for jurisdiction in respect of maintenance exceptional circumstances. No such provision exists in the 1996
claims. Whilst it replaces the jurisdiction provisions for Brussels IIa, Hague Convention. That being said, it is hoped that there will still
it does not do the same for the Maintenance Regulation. Prior to be a willingness amongst the judiciary to deal with such cases swiftly,
Brussels IIa, the position was that maintenance jurisdiction would regardless of the jurisdictions in question, as in most cases this is
follow divorce jurisdiction. Presumably, in the absence of jurisdiction clearly in the best interests of the child.
provision in the Brexit SI, that is the intended position post-Brexit Legal aid is not available for recognition and enforcement of
(as in the absence of replacement domestic law we will revert back orders under the 1996 Hague Convention, as it is under Brussels IIa
to the pre-Brexit law). How that will be viewed by the remaining EU and, disappointingly, it is understood this disparity will continue after
Member States remains to be seen. It will be important (in fact, Exit Day.
essential) to consider the jurisdiction rules in any remaining Member The United Kingdom’s exit from the European Union means it
State where enforcement might be necessary as early as possible. will not benefit from the enhanced provisions provided in the recast
A concern amongst many UK practitioners was, and remains, the of Brussels IIa when they start to apply in 2021, such as: the
loss of reciprocity and uniformity for UK-EU cases. Whilst use of complete abolition of exequatur for all decisions in matters of
the 2007 Hague Convention deals with that to some extent, as parental responsibility (saving parties time and money whenever a
considered above, only 12 of the 27 remaining EU Members States decision needs to circulate from one Member State to another);
are signatories to the Convention. For those Member States that are clearer rules on the opportunity for the child to express his/her
not, as with non-EU states, it will be necessary to consider that views with the introduction of an obligation to give the child a
Member State’s domestic legislation or codes. Even for those genuine and effective opportunity to express his/her views; and the
ICLG.com Family Law 2020
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonXX
Kingsley Napley LLP 15
harmonisation of certain rules for the enforcement procedure likely to be of limited value; the world has changed dramatically since
(Including enabling Article 20 urgent protective measures to be then and families are more international than ever before. Around
capable of recognition and enforcement in other EU Member States. 900,000 UK citizens are long-term residents of other EU countries.i
This will not assist any UK orders as the recast will not apply to the Likewise, there are estimated to be 3.7 million EU citizens living in
United Kingdom.) There is a view that the recast will add real value, the United Kingdom.ii Many of these individuals make up families
so it is disappointing that the United Kingdom will not benefit from who are not confined by borders. There is no official data setting
these, although it could seek to unilaterally adopt these terms. out how many families in the United Kingdom comprise of couples
Should that happen there is, again, a question of reciprocity, as the with different international origins, but most UK family law
remaining EU Member States will be under no obligation to apply practitioners would confirm that family law cases here have become
these terms to UK-EU cases. However, some aspects of the recast increasingly international, both in respect of the nationalities of the
are not reliant on reciprocity, such as the time limit for dealing with individuals, and the location of assets and homes.
cases, and such term has a clear benefit to parties and children. Post-Brexit reported cases are going to be very important for
In respect of matters of parental responsibility, Article 9 of practitioners, particularly during the first few years after Exit Day, if
Brussels IIa provides that, within the first three months following a not in the best interest of clients in terms of emotional and financial
child’s move to another Member State, the child’s habitual residence cost. Regrettably, the United Kingdom will no longer have the
will remain in the “left behind” state. Whilst this is a small window, benefit of the European Court of Justice, and the assistance offered
it gives the “left behind” parent some reassurances that in the event there in interpreting law and practice. At present, there is no
of an issue arising within that window, the court of the former proposal for a replacement body.
Member State could deal with any issues and modify the order. This
provision is not provided for in the 1996 Hague Convention, so as Conclusion
matters stand, in the event of a no-deal Brexit, this small but helpful
Having now had three years of unsuccessful negotiations, it could
window will fall away for any UK-EU cases.
be said that the United Kingdom seriously underestimated the scale
Currently, English contact orders are automatically recognisable
of the task at hand. The negotiations for Brexit are far more
and enforceable in Member States, providing the appropriate
difficult and wide-reaching than perhaps anybody had contemplated
certificate is annexed to the Order. After Exit Day, English contact
prior to the referendum. Calls for a revocation of Article 50 are
orders will face a two-tier process with contracting states to the 1996
frequently made, but in the current political landscape, it seems
Hague Convention; firstly, recognition and secondly, enforcement.
unlikely to happen. So far as practitioners are concerned, Brexit is
Whilst this is not an absolute bar, it poses the threat of higher costs
happening and future-proofing cases to the extent possible, with
for litigants and greater delays. Obtaining mirror orders, at the
parallel advice, mirror orders and expectation management with
earliest opportunity, could alleviate any enforcement concerns,
clients is important. Ironically, at a time where we seek to leave the
although at greater financial cost to clients.
European Union, our relationships with practitioners in Member
States will become ever more important as we move into a new era
The Approach of the Remaining EU Member of family law.
States
On 18 January 2019, the European Commission produced guidance References
for Member States, dealing with jurisdiction, recognition and ■ https://www.ons.gov.uk/peoplepopulationandcommunity/
enforcement in civil justice and private children law. Whilst it is populationandmigration/internationalmigration/articles/whatin
guidance only, it states that an EU Member State will not give effect formationisthereonbritishmigrantslivingineurope/jan2017.
to a UK order made before Exit Day unless the required registration ■ https://www.ons.gov.uk/peoplepopulationandcommunity/
process has been concluded before Exit Day. More generally, unless populationandmigration/internationalmigration/datasets/popul
there is overriding EU guidance or agreement in place, the position ationoftheunitedkingdombycountryofbirthandnationality.
taken on UK orders and decisions will be down to each individual
Member State, as per their national law. The position could differ
between different Member States and, again, parallel advice in the
Endnotes
country in question will be crucial. i. Office of National Statistics report; What information is there on
British migrants living in Europe?: January 2017.
ii. Office of National Statistics; Population of the UK by country of
Anglo–English Issues Arising on Brexit
birth and nationality.
England & Wales and Scotland, as two independent jurisdictions, do
not have complete uniformity in their domestic laws. Whilst any
differences post-Brexit are likely to apply in a limited number of
cases, for the parties to those cases, the differences are very impor-
tant as the two jurisdictions have very different rules on, for example,
maintenance provisions to spouses on divorce.
Retraining and Test Cases
As matters stand, post-Brexit the practice of UK-based practitioners
could change dramatically in some aspects of family law and UK
practitioners will need to take the responsibility of ensuring their
knowledge and practices are up to date to best serve their clients.
Brussels IIa, for example, came into force on 1 August 2004, and has
applied from 1 March 2005; almost 15 years ago. That is almost 15
years of case law that has been based on a Regulation that will no
longer apply. Reviewing the UK’s case law prior to Brussels IIa is
Family Law 2020 ICLG.com
© Published and reproduced with kind permission by Global Legal Group Ltd, London16 Brexit and Family Law
Charlotte Bradley is head of the Family team at Kingsley Napley, where she has been a partner since 2001. Charlotte specialises in all aspects of
family law, including international issues, both in relation to finance (particularly cases of Schedule 1 provision for unmarried parents) and children
(particularly relocation). She is also an accredited mediator and collaborative lawyer. She writes regular articles and has co-authored a number of
books on family issues. She is the Contributing Editor for The International Comparative Legal Guide to: Family Law and fellow of the International
Academy of Family Lawyers.
In the recent published legal directories, Chambers UK and The Legal 500, she has been described as “a complete delight”, “fantastic – she has all the
attributes you want from an international family lawyer, and has warmth in abundance”, being “absolutely brilliant at jurisdictional elements of work”,
“universally respected”, “an absolute star with a relaxed and authoritative style” and “a wonderful person with an excellent mind and exceptional client care
skills”.
Kingsley Napley LLP Tel: +44 207 814 1200
Knights Quarter Email: cbradley@kingsleynapley.co.uk
14 St John’s Lane URL: www.kingsleynapley.co.uk
London EC1M 4AJ
United Kingdom
Stacey Nevin is a Senior Associate Solicitor in the Family team at Kingsley Napley. She specialises in all aspects of family law, with a particular
focus on cross-border disputes involving jurisdiction races and proceedings in multiple countries, and complex financial issues including offshore
trust arrangements. Stacey writes regular articles and has been quoted in the press, offering commentary on landmark cases. She is a member
of the Brexit Working Party to the Resolution International Committee and Property, Tax and Pensions Committee, a group of lawyers formed to
consider the impact Brexit will have on family legislation in England & Wales.
In the legal directory, The Legal 500, Stacey has been described as a lawyer with “client care second to none” and “a detailed knowledge of the law and
good judgement when it comes to tactics”.
Kingsley Napley LLP Tel: +44 207 369 3824
Knights Quarter Email: snevin@kingsleynapley.co.uk
14 St John’s Lane URL: www.kingsleynapley.co.uk
London, EC1M 4AJ
United Kingdom
Kingsley Napley is an internationally recognised law firm based in central
London. Our wide range of expertise means that we are able to provide our
clients with joined-up support in all areas of their business and private lives.
The Family team, made of 16 lawyers and headed by Charlotte Bradley, covers
all areas of family work, including divorce, financial issues, children (including
relocation and surrogacy), cohabitation disputes and pre-nuptial agreements.
Over 50% of our work has a significant international aspect.
The team has been described by its peers as “absolutely top-end”, “a team that
has a great breadth of experience across the board and particularly in international
cases”, from “a standout firm” and a team that “always fights hard to defend your
interests”. Clients have described Kingsley Napley as “an exceptional law firm,
with extremely high-quality professionals and a kind and welcoming environment”.
www.kingsleynapley.co.uk
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