There is a lot I could say about the remainder of the conference, but I wanted to concentrate on the seminar which I organised, along with fellow members from the International Committee of Resolution. We decided to focus on international aspects of family law within the United Kingdom and British Isles, and so our panel included lawyers from Scotland, England, Northern Ireland and Jersey. For Resolution members wanting to consider these issues further, the workshop papers are available on the Resolution website and the International Committee has also put together a fantastic online guide to international family law issues, free to members and available through the Resolution website here: www.resolution.org.uk
Here are three brief points (and some photos!) from the seminar:
First, the law is different. There are some big differences in the way the different countries within the British Isles deal with family law matters, and in particular financial matters on divorce north and south of the border. Most people know this, but the important thing is obviously to know what those differences are and how they impact on particular cases. We looked at a case study during the workshop involving a separating couple, where the wife was considering whether Scots or English law would be better for her. Although she would have been unlikely to get lengthy spousal maintenance in Scotland, the conclusion was that Scots law would probably have been better for her overall, as she had significant pre-marriage assets which she would have kept rather than shared under the Scottish system.
Second, the law is complex. There is real complexity in determining which Court can deal with financial matters on divorce where the spouses have links with more than one country within the United Kingdom or British Isles. This complexity comes in part from the interaction between domestic UK legislation and directly effective EU Regulations. It sometimes seems as though the consequences of these have not been fully thought through. For example, it is now quite possible for there to be two sets of Court proceedings dealing with different aspects of a case, for example an English Court dealing with issues of spousal maintenance and a Scottish Court dealing with issues of divorce and division of assets (excluding maintenance). For maintenance, the rule is that whichever Court is first applied to can deal with this matter. For divorce, the place you last lived together can instead be the trump card (if the countries involved are within the British Isles - different rules apply for conflicts between EU member states or further afield). The nuances and pitfalls of this are difficult for lawyers to consider, never mind non-lawyers in the midst of a separation.
Third, the law is incomplete. There are some real gaps in the area of enforcement of Court decisions or agreements, even between different parts of the UK. There was some very interesting debate among the delegates at our seminar about enforcement, particularly of transfer of properties. If the English Court made an order for transfer of a Scottish property (say, from both spouses to one of them) then if one of the spouses fails to comply with the order by refusing the sign the transfer documents, there seems to be no easy way to make that happen. It is possible to carry out enforcement action across UK borders relating to payment of maintenance or payment of a capital sum, but not for property sales or transfers following divorce. This is a real omission which could cause significant problems in certain circumstances.
In summary, if you have links with more than one country, even just between Scotland, England, Northern Ireland or the Channel Isles, you should treat your situation as "international" and make sure that you have advice from a specialist family lawyer who understands the cross border issues involved. This is important at the time of starting negotiations or divorce proceedings and also when it comes to enforcing any agreement or Court order reached. If these issues affect you, please feel free to get in touch on 0131 247 1243 or to email@example.com.