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20 APR 2012

David Hodson on International Family Law: Divorce tourism

David Hodson OBE

Family lawyer


International Family Law Practice by David Hodson

David Hodson

Last week, The Times (10 April) ran a front-page story headed "'Divorce tourists' take over the courts".  It compiled statistics about the number of family cases involving an international element and other civil litigation involving people from abroad.  Inevitably it took the opportunity to feature pictures and stories of the rich and famous and glamorous who had taken their cases to the English courts.  Much more seriously, it followed up with an editorial looking at the challenge to the English justice system which, like all public services in the UK, faces dramatic financial cuts leading to lesser availability of judges, courtrooms, court staff and court services.

It follows also the report of LJ Thorpe of the work of the Office of International Family Justice.

The Times highlighted that it is now estimated that 24,000 of the annual 150,000 divorces in England and Wales involve a non-British citizen.  Relocation disputes are said to have risen from 27 in 2007 up to 180 in 2011.  More children are being born in England and Wales to foreign parents, with 65% of children born in London in 2010 having at least one foreign parent.  Other statistics have been referred to.

The reasons for the increase in international cases are various, some included in the article itself.  Although primary media coverage is on the super wealthy, the greater reality is that England is one of the most cosmopolitan countries in the world, and possibly one of the most open countries for international travel and residence.  The dramatic number of children born to non-English national parents is an impact of our immigration policy of the past decade and longer, and nothing to do with any divorce settlements.  But as with the fallout from many other aspects of English social policy over the past years, it is the family justice system which picks up the pieces.  Children are "abducted" by one parent, often the primary caring parent, to this country because we are perceived as a very safe place - and we are compared to much of the rest of the world.  Many relocation cases often arise because one parent has come to this country in the first place, perhaps pursuant to a relationship or employment, and then wants to return to their home country.

But cases involving children of so-called international families have distinctive issues which do require judicial time, court resources and often specialist lawyers.  We cannot short sell these children and their needs merely because our justice system is struggling to cope.

England is undoubtedly attractive to claimants for divorce financial settlements.  Of course there are cases where observers will rightly question why English public resources are being committed to what might be perceived as "birds of passage".  I consider the proper response is to be immensely proud that our law is so fair to women, invariably the applicant, who have given up much for the marital relationship, including child raising but also including moving countries for their spouse. 

English family lawyers often do not appreciate, looking through English eyes of fairness and our culture of equality between the genders, at what is frankly the appalling provision in many countries abroad including even across Europe.  After many years of marriage including child raising and where perhaps the assets of the marriage itself have not been material, eg in contrast to premarital or inherited, the wife (as mother) may find herself without any capital provision from the husband for accommodation for herself with the children and the husband retains exclusively the premarital and inherited wealth.  She may possibly (no more) receive meagre short-term spousal maintenance to cover basic rental with an expectation that she can go out to work immediately, irrespective of the age of the children.  On top, some countries will then entertain an application from the father to be the primary residential parent on the basis that the mother is in inadequate accommodation!  We must stop the constant criticism of our law based on a few extravagant super wealthy decisions and instead take huge pride in the respect and integrity we give to the sacrifices and commitments made within the marital relationship and the importance of good accommodation provision for the children with each parent.  There are some who will urge law reform to produce dramatic inequality of outcomes on divorce after many years of a fully committed relationship from which one spouse will never fully financially recover.  We must resist.

The challenge of course is when the super rich cases clog up the courts and take resources away from British citizens.  Sadly, very few British citizens can these days afford even county court resolution of their cases let alone the High Court and extensive final hearings.  English justice is very expensive and in final hearings it is out of reach to many unless those few still able to obtain legal aid or those few with substantial resources.  This is scandalous.  But it is nothing to do with divorce tourism.

The Times editorial rightly concludes as follows:  "Foreigners must naturally pay the full economic cost [of using the British justice system].  But cutting money for the courts is hardly the best way to encourage this growing export of English justice around the world."

There is another form of English justice according to English law which is now available and which does not come at a cost to the English taxpayer.  Family arbitration was formally launched last month.  The parties themselves are responsible for the costs of the arbitrator, the administration of the arbitration, etc.  Moreover it is entirely confidential, with no possibility of public reporting.  Moreover the parties are able to choose their own arbitrator who is specialist to the issues involved in the case.  I am aware that a number of arbitrators are willing to travel abroad for the convenience of the parties to conduct English arbitrations on family disputes.  Here is an excellent opportunity to allow access to our very good English justice and English law without a cost to the English justice system.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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