International Family Law & Divorce From a Foreign National
International family law addresses the complex legal issues that arise when marriage, divorce, property division, child custody, or child support involve more than one country. These issues are often governed by a combination of international treaties and domestic laws.
Recognizing Marriages Conducted Abroad
Most countries recognize marriages that were legally conducted in another nation, provided that the ceremony complied with the laws of the country where the marriage occurred. Recognition may be denied if the marriage conflicts with fundamental principles in the country asked to validate it. Such conflicts can arise when a marriage is considered a marriage between close relatives under local law or involves spouses who reside in a country where that type of union is prohibited. Same-sex marriages illustrate this complexity. Even if the marriage is valid in the place where it was performed, it may be treated differently if a spouse moves to a country that does not permit such marriages. This can affect inheritance rights, spousal benefits, and other legal matters.
Recognizing Divorces Granted Abroad
A divorce granted in one country is usually recognized in other countries, but there are exceptions. A nation may refuse recognition if the divorce violates that nation’s core legal principles about fairness and justice. Examples include divorces obtained through fraud, such as misrepresenting facts to obtain the divorce, or under circumstances that deny one spouse the fair opportunity to defend or present their case, meaning that they were not given adequate notice or time to respond.
Dividing Property in International Divorces
Several conventions outline how spouses may choose which country’s laws will apply to their marital property rules. The spouses might select a law that is closely connected to their citizenship or residence. If no choice is made, the courts often look to the law of the first country where the couple established their primary home after marriage. Since some international conventions on marital property are not widely adopted, though, many courts rely on domestic rules to determine how to divide property.
Child Custody Disputes Across Borders
No single universal law governs international child custody disputes, and each country typically applies its own examination of the child’s best interests. This standard involves considering factors such as the child's wishes, the parents' ability to care for the child, and the child's emotional and physical well-being. However, some matters are addressed by specific treaties.
The Hague Convention on the Civil Aspects of International Child Abduction is designed to prevent a parent from unlawfully removing a child to a different country in hopes of gaining a more favorable custody arrangement. It usually requires that the child be returned to the place considered their habitual residence, meaning the country where the child predominantly lives. When the Hague Convention does not apply, whether because the countries involved are not signatories or the child’s habitual residence cannot be clearly established, the court where the custody case is heard will make a custody determination based on local laws.
International Child Support Enforcement
When a parent moves to another country to avoid child support obligations, international agreements, such as the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, can help provide for the enforcement of existing payment orders. In other words, a local court may impose penalties on the parent for non-compliance even though it didn’t issue the child support order. However, practical difficulties still can arise when trying to enforce child support across borders due to differences in legal systems and enforcement mechanisms.
