International Family Law and the New Family Procedure Rules

Date Added: June 06, 2011 03:25:45 PM
Author:
Category: Family Law

A new set of family procedure rules will apply in England and Wales from the 6 April 2011. In particular, the new set of family procedure rules effective from the 6 April 2011 will affect divorce and financial cases and extra care must always be taken where a family case has an international dimension to it.

 

One of the significant changes to the rule is that there is a requirement for any Applicant to first see a mediator to determine whether or not mediation is in fact suitable for the case. The difficulty is that where a case, in particular, involves European Union countries (except Denmark) then this could allow the other party i.e. the Respondent to receive advance notice of what is happening. He or she may then tactically try and claim jurisdiction in the EU country which best suits his/her case. Contacting the other party could therefore be fatal. The reason for this is that the financial outcome in the different countries could be significantly different.

 

All is not lost however as there are some exemptions available which could still allow a party to issue proceedings in England and Wales and therefore to claim jurisdiction in the usual way. There are mixed thoughts about this (often called the lis pendens rule) because it creates tactics and it can actually inflame a situation presently there is no real way round it because as I say to delay could be fatal where a case has an international element to it. In many none EU countries, some regard is given still as to who was first to start the proceedings and therefore it is arguable that the exemption from seeing a mediator should apply in all cases of possible foreign proceedings.

 

There is justifiable criticism of European Union policymakers who have created this “first to issue” rule in divorce proceedings or it can create what is often called “anti-settlement” and “anti-family life” problems. Whatever the rights and wrongs, extra care should always be taken where the case has some international dimension to it. A divorce or separation can be a very difficult and stressful time. Not only does it affect the status of a relationship but it also has implications both in relation to the finances and any children. Extra care must be taken where the case has an international element to it because there could be more than one country where the divorce could start.

 

The financial outcomes in each country could be starkly different and specialist advice must be taken in each country. Legally, however, a divorce is a relatively straightforward procedure. There is one ground for a divorce: the marriage has irretrievably broken down. There are five ways of showing this to a Court: • Adultery • Behaviour • Desertion for more than two years • Separation for two years or more with the other person's consent • Separation for five years or more without the other person’s consent