The Role of the International Family Lawyer

International family law

03.05.2005

International family law is changing beyond all recognition according to the Birmingham office of national solicitors Irwin Mitchell.

Kevin Harris-James, recently voted Birmingham Law Society Family Lawyer of the Year, a partner in the family team with the firm, has experienced a dramatic growth in the number of international cases handled by his team particularly over the past two years, with an increased caseload of almost 70 per cent.

International issues currently make up a fifth of the firm's cases - and this is increasing year-on-year.

Behind this growth is the firm's national reputation for handling high value financial claims. This has attracted cases from wealthy clients who typically lead a more sophisticated international lifestyle. Through this client activity, the division has gained greater exposure to international family work and recently achieved national recognition with its inclusion in the Legal 500 and Chambers, particularly in the field of ancillary relief.

Mr Harris-James, who has been a partner at the firm's Temple Street offices for seven years, is now dealing with cases that span 12 jurisdictions including China and Australia. Prior to joining Irwin Mitchell he had little involvement with international cases and, until recently, this kind of legal activity was seen as exclusive to law firms in London's 'magic circle.'

According to Mr Harris-James, the reason for increased activity is that international lifestyles are increasingly more common as the ease and cost of travel means the world is now more accessible than ever before.

He said: "International lifestyles bring with them international relationships and when such relationships break down, specialist advice is required from lawyers accustomed to dealing with such complex family law issues."

Mr Harris-James states that matters of an international nature do not ordinarily fall into the lap of 'traditional' family lawyers. So it is imperative that when such cases do arise, they are forwarded to family lawyers experienced and equipped to deal with them.

He says: "On the whole, most family lawyers have little experience in handling international cases. Should they endeavour to handle such matters without assistance or referral to an experienced and knowledgeable international family lawyer, they risk not representing their client's interest competently. Trying to tread the minefield of international family law without the necessary skills or experience is highly irresponsible, giving rise to issues of potential negligence."

One recent example saw Irwin Mitchell co-ordinating a complex case involving three different countries and a child who was kidnapped from Scotland, taken to France before ending up in Spain. The family law team at Irwin Mitchell managed the retrieval of the child, enlisting the services of legal experts in Scotland, France and Spain. Each lawyer made applications in their respective countries, reporting directly to Irwin Mitchell until a satisfactory conclusion was reached and the child was returned home safely. The need to draw upon an established international network of likeminded lawyers who are readily accessible is key.

Added Mr Harris James: "Family lawyers with such experience will be able to investigate and understand any issues arising, clashes of jurisdiction between different countries, working closely with local councils in each jurisdiction in order to provide co-ordinated, coherent and effective advice."

An international family lawyer's advice frequently centres on helping clients make the critical first step decisions which can have a profound affect on the outcome of a case. It is these preliminary steps that are often overlooked or misunderstood.

On the subject of international divorce - another area which has experienced a dramatic increase in recent years - Mr Harris-James says one of the key considerations is ascertaining which jurisdiction is most preferable: "Clients need knowledgeable and experienced advice when making such decisions, and be fully appreciative of the consequences whichever jurisdiction is ultimately chosen. The selection of forum is by no means an easy task even for an experienced international family lawyer. Such a decision requires consideration of the marriage, whereabouts of property, the primary residence of the parties and the financial relief available."

Understanding differences in jurisdictions is one of the most important considerations for the international family lawyer as it poses a variety of challenges. These include demonstrating a comprehensive knowledge of applicable laws for each jurisdiction, analysing remedies available and trying to make a prediction as to the outcome.

To illustrate this point, Mr Harris-James uses the following example:

"In California, a pre-nuptial agreement is legally binding whereas in the UK and Wales, it is not. Being armed with this basic knowledge can be crucial when deciding where to file for divorce proceedings. If a wealthy American man has a pre-nuptial agreement that protects his assets from his English wife for instance, he must get there first if he is determined to protect his assets.

"Divorce jurisdictions vary considerably around the world, as do local practices before Courts. A selection of the appropriate forum is often the single most important decision in an international family law case."

He concludes: "The international family lawyer plays a key role in assisting clients and family lawyers handle a multiplicity of complex international family law matters. The nature and extent of specialist advice should not be overlooked nor undervalued."

Irwin Mitchell's international family law team specialises in:

  • Child abduction - Hague Convention Applications
  • Forum disputes
  • Financial claims within the English jurisdiction or foreign jurisdictions
  • Enforcement of English Orders for financial relief before foreign jurisdictions
  • Off-shore business interests - tracing, forensic analysis, unravelling and valuing
  • Off-shore trusts - tracing, forensic analysis, unravelling, setting aside and valuing
  • Pensions - identifying, actuarial analysis, valuing and offsetting against realisable assets
  • Real Property - identifying, valuing, and transferring ownership
  • Tax - revenue implications arising from transfer of assets offshore or the bringing of assets on-shore
  • Interlocutory injunctions (Mareva) - freezing/preserving assets world wide on an interim basis pending determination of substantive claims
  • Pre marital agreements - advising upon and drafting the same

Have you got a claim? If we can help you or someone you know with a case, visit our family law section.