International families — family law in a nutshell

A family can find themselves living abroad through accident or design. They may have relocated because of one or both parties’ work, one party may want to live in their ‘home country’, or they may have decided to emigrate for a change of lifestyle.

When a family or couple has international connections, this can have significant implications if a relationship breaks down because of the different, often competing, laws and legal jurisdictions that apply.

In this article we look at:

• starting a family using international surrogacy or adoption
• wealth protection
• relationship breakdown: issues relating to finances and children

International surrogacy and adoption

Surrogacy and adoption help to create much-wanted families. Arrangements may be made in the UK or abroad which in turn can result in added complexity and issues to be considered. For a general overview, please see Top tips for intended parents to consider when planning to have a baby via a surrogate

However, when a child is born to an overseas surrogate or adopted from an overseas adoption agency, immigration issues and the laws regulating surrogacy or adoption in that location also come into play. 

It is important to secure parental status via a parental order and to take advice on immigration issues to ensure the child can come to UK with its intended parents.

Wealth protection

In jurisdictions across the globe, rules and regulations are often in place to govern how a cohabitation agreement or marital agreement, (often called a pre or post nuptial agreement), might be dealt with in the event of a relationship breakdown.

These documents can be extremely important to protect assets in the event of the breakdown of a relationship.

In England and Wales, prenuptial and postnuptial agreements are not automatically legally binding as this would require a legislative change. However, they are persuasive evidence in financial proceedings, especially if certain safeguards are adhered to, and it is now extremely likely that a prenuptial or post nuptial agreement will be upheld by a court unless it can be shown that doing so would be unfair to the other party in the circumstances at the time of the divorce or civil partnership dissolution.

Nuptial agreements with international dimensions are complex, and it can take time and resources to work out what the preferable approach is for the couple in question. However, this should not be a deterrent, as grappling with potential issues now will serve the parties well if their relationship does falter.

The key ‘take away’ is to appoint the right experts, not only in their own jurisdictions, but who also have experience dealing with international matters.

Relationship breakdown

Financial claims and forum conveniens

How financial issues may be resolved, and where, can be complex. The outcome will also differ depending on whether the parties are married.

A case may be determined by the laws applicable in the jurisdiction in which the parties are residing, or by the laws applicable to their ‘home country’, or by another jurisdiction altogether with which there is a connection. Establishing which jurisdiction applies – and proceeds – with any claim in the event of one or more competing jurisdiction can be complex.

As there may be more than one possible jurisdiction for a divorce, urgent legal advice must be taken as timing could be critical for an application to be filed in one jurisdiction rather than another. In some jurisdictions, the first in time rule will apply; in others it might be that the matter is decided on the basis of what is most convenient, (forum conveniens).

In many jurisdictions, the financial remedies on divorce or dissolution will be linked to where the proceedings take place. The outcome for a financial settlement might be very different in one jurisdiction, rather than another. See international family law disputes.

Children

Moving abroad: often, during a relationship, a family may choose to live abroad. This can sometimes have unintended consequences, as the laws regulating what that family can and cannot do may quickly change to those of the new jurisdiction.

Holidays: even when a family is clearly anchored in the UK, taking a child abroad on a holiday as a separated parent can also lead to unintended consequences.

Before going to the expense of booking flights and hotels, separated parents need to consider their legal position as a separated parent. Separated parents often assume, particularly if they are the primary carer for their child, that they are under no obligation to notify the other parent of their holiday plans. However, they could potentially find themselves on the wrong side of child abduction laws if they take their child abroad without the other parent’s knowledge or consent.

It is therefore a good idea to consult the other parent before committing to any travel arrangements or paying a hefty deposit. More information of travelling abroad with children.

Non-return of children after a trip abroad: some parents will be anxious that a child travelling abroad with the other might not return. Top tops to consider.

If this happens, the other parent may have abducted the child.

Abduction: this may be committed intentionally or unintentionally. Sometimes, a parent simply wishes to move ‘home’ and makes an assumption that they are able to do so.

If you are accused of child abduction, please read our insight for guidance.

Child relocation: after a relationship ends, if one parent is looking to move overseas and intending that the children move with them then they will need the other parent’s agreement to make the move or, alternatively, an order from the court. Moving without that agreement or a court order may result in accusations of abduction.