Family Law 2024

Family Law: A Global Overview

Family law is an important part of a country’s legal and social fabric. The rules and norms of the society are reflected in the laws that dictate what happens on relationship breakdown. As such, family law is an interesting insight into how a country views relationships and the financial impact of their breakdown. This guide, hopefully, is not only useful for the professional when considering international aspects of family law but also provides an informative guide for the lay person when considering how professionals deal with these issues in each country and an insight into the country’s society.

Whilst the term “family law” is broad, it is most commonly interpreted as dealing with issues arising from relationship breakdown. This guide deals with three main areas arising from relationship breakdown.

• Change in status – if a relationship breaks down then, depending on the formal status of the parties, there may be a change in status going forward. For example, if the parties are married then there may be divorce proceedings or, in some countries, nullity and judicial separation proceedings. Similarly, some countries have different forms of legal partnerships, eg, civil partnerships which are dissolved upon the relationship ending. Other, less formal arrangements, eg, cohabitation, may not require a change in legal status.
• Financial consequences – inevitably, when a relationship breaks down, where there have been dependencies on either side, there will be financial consequences on its dissolution.
• Children arrangements.

These issues are separate and distinct but there can be linkages between them – for example, if there is a formal dissolution of the status of the parties in one country then it is normally that country that deals with the financial consequences that arise. There is at least one notable exception to this rule, being England and Wales, where the financial consequences of the breakdown of a marriage can be dealt with in that country even if the divorce itself happened abroad; however, that is the exception that proves the rule.

In some countries there are further linkages between these issues. For example, some jurisdictions provide for better or worse financial relief depending on the circumstances under which the relationship broke down. In Austria, for example, if there is a finding that one party is the cause of the breakdown of a relationship then the other party is entitled to significant maintenance.

In most countries, children arrangements are normally kept separate from financial issues but clearly there are some linkages, eg, financial support for the benefit of children.

Turning to each of these areas in more detail.

Change in status

One of the most striking aspects in this area over the last ten years is the significant increase in the number of jurisdictions which recognise relationships that are between individuals of the same sex. Thirty or so years ago there was no jurisdiction in the world that legally recognised those relationships but now the majority of jurisdictions in the world do so and, as a result, have to have in place laws to determine what will happen when such relationships break down.

The sensitive nature of this evolution is a classic example of the trend which this overview highlights, namely that the law has to reflect the society in which it is embedded. As society has evolved, so too has the law. In countries where same-sex relationships are recognised, and therefore those jurisdictions deal with its breakdown, there can be differences between the legal terminology – whether it is a civil partnership or a marriage and therefore whether it is a formal “divorce” – but the similarities normally outweigh the differences.

Another change that has happened in some countries are the grounds on which a dissolution of the relationship can take place. In simplistic terms, there are generally two forms of “grounds” – in some countries the relationship can only be dissolved following the actions of the party who caused the breakdown. In other words, “fault” needs to be found. Some jurisdictions are not “fault”-based and only require a period of time to have elapsed before a divorce is allowed, or a statement that the marriage has broken down. In at least one country (England and Wales) there has been a recent move away from a “fault-based” system to a non-fault-based system.

In a global world, where parties move from country to country with ease, another issue that must be considered when advising on these matters is the jurisdiction in which proceedings can be issued to dissolve the relationship. In general, jurisdiction in all countries is either founded on the parties’ nationality (or in some countries their domicile) or residency.

Given that some countries can have significantly different financial regimes on relationship breakdown, the question of whether a party can get divorced in different jurisdictions can be of the upmost importance. Deliberately choosing one country over another to issue proceedings has given rise to the colloquial term “divorce tourism”.

This generates a multitude of legal issues that may arise, including how either jurisdiction deals with the claims of the competing jurisdiction and evolve into complicated and sophisticated legal disputes that can clog up the courts for many months or years. The money at stake for ultra-high net worth parties may, however, justify this expense.

Financial consequences on relationship breakdown

The difference in financial consequences if a couple’s finances are dealt with in different jurisdictions can be vast. The laws that determine the division of money may reflect the societal norms of the different countries.

For example, where there is sophisticated and well-funded welfare state which encourages mothers to go back to work after the birth of their child there may not be laws for the provision of spousal maintenance on divorce because it is expected that the mother will be working anyway and supported by the state. The financial award for mothers in those countries might be vastly different to those countries where it has been expected that mothers looking after children at home are as productive as the person who goes out to work and should be provided with support from their ex-partner to allow it to continue.

There is a further fundamental difference in a number of countries around the world when considering the financial consequences of a relationship breakdown. In civil countries which use the Napoleonic code or variations of it, upon relationship breakdown, the marital regime that the parties had entered into on their marriage comes to an end. And the law has to regulate how the assets are to be divided according to the marital regime and if there is any compensation to be paid as well as maintenance.

On the other hand, in common law countries when the parties marry, they do not enter into a “marital regime”; instead, they continue to act as individuals but on the relationship breakdown there is an equitable distribution of assets and incomes between them to reflect the fact that the relationship has come to an end.

Furthermore, in a number of countries around the world (including those in the EU) there is a rule of “applicable law” whereby the court may not use their own native laws to determine how finances are to be distributed but instead may use law from other countries. If the individuals are from a different type of regime (eg, a common law rather than a civil code country) then the court where the divorce is taking place will have to interpret how the different structure “works”. This may well lead to confusion and misinterpretation.

Particular areas of contrast, as well as those involving capital distribution, are whether an ex-spouse should receive maintenance after the divorce has ended and, if so, for how long, and the level of child support that must be paid by the parties. These are matters which can have significant differences in neighbouring countries, eg, Scotland (where there is very limited spousal support) and England and Wales (which is much more generous).

Some countries have financial structures that are imbedded within them and therefore relationship breakdown has developed ways of taking them into account and/or dealing with them. For example, trust structures are more easily dealt with in common law countries than civil code countries where they are less common.

Childcare arrangements

This is one of the most important and, at times controversial, areas that must be resolved on relationship breakdown. This guide sets out the general rules that the court will consider when dealing with this issue, including the weight that the child’s voice has in each country. One area not dealt with in detail is the relocation of children from one country to another, which is covered in a separate guide.

Transparency in the courts

Finally, a hot topic of debate in a number of countries at the moment is transparency about the family court process. There is a fierce debate in many countries about whether it is in society’s best interests for there to be open justice so that a light can be shone on the judicial process to cleanse it of any imperfections against the rights of the individual to have their personal affairs kept secret and their rights to a private family life protected. This is an issue which occurs in many areas of the law but is most acute in family law given that the issues debated are extremely personal. In some jurisdictions, eg, California, it is acknowledged that the proceedings will be within the glare of publicity, whilst in a number of others, eg, in quite a number of EU countries, there are strict rules about publicity.

This, like a number of issues dealt with in this guide, reflects the evolving society in each country and provides a snapshot of the present laws and norms of that society.