Those who are interested will have probably seen the term International Family Law on various websites. But what is International Family Law? The term suggests that there is an international court and law dealing just with family relationships. This is, however, not the reality. In fact, International Family Law is fundamentally a part of a jurisdiction's domestic law, be it Scottish, English, German or French law, providing rules dealing with situations involving a cross-border element.
It is true that there a number of European regulations and international conventions dealing with some of the issues of International Family Law, many of those originating from the Hague Conference on Private International Law - for example, the Hague Convention on International Child Abduction and the Hague Convention on Family Maintenance. However, only certain areas are covered by such conventions.
International Family Law is, in fact, a specific area of a distinct (and very complicated) area of Scottish (or English) law called Private International Law. Private International Law provides rules for courts to solve legal disputes that literally cross borders. So, what happens if the court in Iran grants a divorce, which a party looks to have recognised in Scotland? What happens if the English court grants an order transferring property situated in Scotland? What happens where the parties have entered into a pre-nuptial agreement in Germany, which is then put before the Scottish court in a divorce action? What about a same sex couple who have married in Scotland considering moving to a country which doesn't recognise the legality of their relationship…again the range of possibilities is almost endless.
In order to fully understand what is going on you first need to understand that there are three fundamental concepts in International Family Law (and Private International Law) generally.
- Which court will hear my case? This is known as the question of "jurisdiction".
- Which law will be applied to my case? This is known as the question of "applicable law".
- What will happen once the court has made its decision? This is known as the question of "recognition and enforcement".
During the course of the next few months I am going to be writing about some of the issues that arise in relation to each one. So please watch this space...