A Guide to International Family Law

Many families today have international connections. They may for example have moved from one country to another, they may spend time in more than one country, or they may have assets in different countries.

Whatever the situation, having international connections may considerably complicate the legal situation if the family separate or divorce.

This brief guide will cover some of the most common scenarios where family law has an international element.

Jurisdiction – where should the divorce take place?

Divorce proceedings can usually only take place in a country with which the family has a particular connection. But sometimes a family will have connections with more than one country, meaning that the divorce could take place in more than one jurisdiction.

And this can lead to considerable disputes, particularly as each party may believe that having the divorce take place in a certain country will give them an advantage. For example, it is generally believed that the courts in England and Wales award more generous financial settlements to wives than in many other countries, thus wives often seek to have the divorce take place here, and husbands seek to have it take place elsewhere.

Divorce jurisdiction is often decided simply by who issues the divorce first. Thus if the one party issues the divorce in country A and the other party then issues divorce proceedings in country B, the divorce is likely to proceed in country A. As can be imagined, this can lead to unseemly races between spouses to see who can issue the divorce first.

An example of this occurred in a recent case that took place in the Family Court in London, which illustrates how jurisdiction disputes are dealt with.

The family had homes in several countries and the wife chose to issue divorce proceedings here, in February 2024. In the following month the husband issued proceedings himself in another country. The wife applied to stay the husband’s divorce proceedings, on the basis that her divorce application in England was first in time.

The court had to decide whether there was jurisdiction for the wife to apply for a divorce here and, if so, whether the court should stay the English proceedings in favour of the husband’s divorce proceedings issued later in the other country.

The court held that there was jurisdiction for the wife to apply for divorce here on the basis of her habitual residence here, and that the husband had failed to prove that the other country was a more appropriate forum for the divorce than this country.

Recognition of foreign marriages and divorces

Sometimes the courts here are asked whether a marriage entered into abroad or a divorce that took place in a foreign country is recognised under our law. Obviously, if a marriage is not recognised then there can be no divorce here, and if a divorce is not recognised then the parties will not be free to remarry until a recognised divorce has taken place.

Generally speaking most foreign marriages will be recognised by the courts in England and Wales. There are exceptions, however. For example, in a case in 2022 the court here made a declaration that a forced marriage in Bangladesh involving a woman who lacked capacity was not recognised as valid in England and Wales. A subsequent appeal against that declaration by the woman’s mother was dismissed by the Court of Appeal.

Similarly, most foreign divorces will be recognised by the courts here. For example, in 2017 the High Court in London was faced with a case in which the husband obtained a divorce in Dubai in 2012 and the wife subsequently obtained a divorce here in 2016. The husband sought a declaration recognising the Dubai divorce as valid. The judge agreed that the Dubai divorce was valid, and therefore set aside the English divorce.

Claims after foreign divorce

We said earlier that a party, usually the wife, may receive a less generous financial settlement from the divorce court of another country. However, it is possible for someone who was divorced abroad to make a financial claim in the courts here, provided the foreign divorce is recognised by the courts of England and Wales – see above.

Such a claim can only be made in one of three circumstances:

1. Where either of the parties to the marriage was domiciled in England and Wales on the date of the claim;

2. Where either of the parties to the marriage was habitually resident in England and Wales throughout the period of one year ending with the date of the claim; or

3. Where one of the parties has an interest in a dwelling-house situated in England or Wales which was at some time during the marriage a matrimonial home of the parties.

Further, before the court decides what order to make it must first be satisfied that it would be appropriate for such an order to be made by a court in England and Wales, having regard to such matters as the connection that the parties have with this country, any financial benefit which the applicant has received in consequence of the divorce, and the extent to which any order is likely to be enforceable (enforcing orders made in this country in the courts of another country is another very important consideration where there are assets abroad, and will obviously depend upon the law of the foreign country).

Same-sex marriage

International considerations can give rise to special issues for same-sex couples.

This is because not all countries have same-sex marriage. And this does not just mean that the couple are unable to marry in a country that does not have same-sex marriage. It also importantly means that the courts of that country may not recognise same-sex marriage at all. This can obviously mean that the couple cannot divorce in such a country, but it may also mean that orders made by a country that does recognise same-sex marriage, for example in relation to finances, may not be enforceable in the country that does not recognise same-sex marriage.

A further problem can arise where the same-sex couple entered into a civil partnership, but later had the civil partnership converted into a marriage. In such cases it is possible that the marriage may not be recognised in another country, even where same-sex marriage is allowed. Obviously, in such a situation it is advisable to check with the authorities of the other country that they will recognise a ‘converted’ civil partnership as a marriage.

Child abduction

We will conclude this guide by looking at two international family law issues relating to children: child abduction, and child relocation to another country.

International child abduction can be one of the most devastating things that can happen to a parent. It occurs when a parent takes a child to, or retains a child in, another country without the consent of the other parent, or the permission of the court.

The law in this country and in many other countries recognises that international child abduction is wrong. Accordingly, there are laws that can require the speedy return of an abducted child to his or her ‘home’ country, whereby the court of the country to which the child has been taken orders the child to be returned. Note that these laws do not decide the long-term future of the child, for example with which parent the child should live and whether the child can be relocated abroad (see below), which are matters for the courts of the home country.

How easy it is to obtain an order for a child to be returned depends upon whether the country to which the child has been taken is a signatory to the Hague Convention on Child Abduction. Most countries in Europe, North and South America and Australasia are signatories. The Convention requires children to be returned in most cases unless, for example, there is a grave risk that the child’s return would expose them to physical or psychological harm, or otherwise place them in an intolerable situation.

Securing the return of a child from a non-Hague Convention country can be more difficult, and may entail taking proceedings in the courts of that country.

For more information on international child abduction and how Walker Family Law can help, see this page.

International child relocation

Sometimes, one parent will wish to relocate with a child to another country. If the other parent does not consent then the parent wishing to relocate may apply to the court here for permission to move the child abroad.

The court will decide such applications in the same way as it will decide any matter relating to a child in this country: by reference to the welfare of the child, taking into account such matters as the ascertainable wishes of the child (considered in the light of the child’s age and understanding), and any harm that the court considers the child might suffer if the application is, or is not, granted.

The law also provides a presumption in favour of both parents being involved in a child’s life, unless that is proved to be contrary to the child’s welfare.

See also this page for the related topic of international child contact.

Conclusion

This guide is just a very brief overview of some of the most commonly-occurring international family law issues. International family law can be a very complex topic. Accordingly, if you have a family law issue with an international element it is essential that you seek expert legal advice, at the earliest opportunity.