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31 AUG 2012

David Hodson on International Family Law: Napoleon Bonaparte and the Queensland Gold Coast

International Family Law Practice by David Hodson

David Hodson

I had the considerable privilege of being invited this summer by the Queensland Law Society to be the international keynote speaker at their residential annual family law conference in mid-August, which took place on the Gold Coast, south of Brisbane. I was introduced by Chief Justice Diane Bryant, the equivalent of our President of the Family Division, and took as the title of my talk: "Napoleon Bonaparte and family law; Invade Russia then onto the Gold Coast". It was the morning after the conference dinner the night before and a certain lightness was therefore required: hence my PA, Catherine Evans, being able to produce a picture of Napoleon arriving on the Gold Coast on a surfboard based on the famous Adolph Northen painting of the retreat from Russia.

But the crucial element is that although both England and Australia are common law discretionary based jurisdictions, we are surrounded geographically and legally by jurisdictions based originally on the Napoleonic code introduced by Napoleon Bonaparte. Moreover this Napoleonic code, found in civil law jurisdictions, is not restricted to much of continental Europe which Napoleon either conquered through military warfare or entered into treaties. In the early 19th century, the world was still being "colonised" by the European nations. By and large, if the map of the world was not coloured red with past or present connections with the British Empire, it adopted the Napoleonic code, civil law. The legacy remains today. Although many countries with an Islamic regime adopt sharia law, it is often on a foundation of the Napoleonic code. So it is elsewhere in the world.  

What is fundamental is that over the past 15 years or so as the EU has grown to dominate much of the national laws of Europe, and countries with which European countries are connected, it has done so from the civil law perspective, originally the Napoleonic code. In family law this has its outpouring in issues and practices concerning marital agreements, jurisdiction, the separation of needs, maintenance and property sharing, joint or independent legal advice, discretion versus certainty and other areas. England, Britain, and Australia are no longer family law islands. But we are surrounded, and increasingly influenced, by civil law jurisdictions and regimes.

In that we believe that there are traditions and practices within our common law regimes which are valuable, important and morally significant including as to gender implications, then we common law jurisdictions need to stand together, understand what is happening across the family law world and, actually, fight together to preserve what we consider important. If we do not, then the days of our common law heritage and traditions may well be numbered. Is it too far-fetched to refer to the Battle of Waterloo where the Duke of Wellington was fortunate to be successful, and only because of a coalition of forces standing against Napoleon.

As always, I was thoroughly impressed by the family law conference in Australia. Queensland has a population of about 4.5 million people, with a good number being in the Far North, the Cairns and surrounding districts, which is a long way to travel to a conference in Brisbane. Yet they had almost 500 delegates, with about 400 interested enough after a late-night dinner to attend a talk on what is happening in family law on the other side of the globe. In mid-October there is the Australian biannual family lawyers conference, this time in Tasmania, with even more delegates from across the continent. With a population of England and Wales approaching 60 million, the attendance and commitment of family lawyers in Australia puts us very much in the shade, and we do not have several hours air travel to attend our annual conferences.

As family lawyers look ahead to the coming autumn and winter, there will be a very welcome shift in our focus. No longer will it be so much Brussels. It will be very much more on The Hague. In December we have at very long last the 1996 Hague Convention, to which many countries around the world have already signed up and which will significantly extend the international reach of children orders and arrangements. Also in December is anticipated the 2007 Hague Maintenance Convention, along relatively similar lines to the EU Maintenance Regulation, but hopefully extending well beyond Europe to assist in recognition and enforcement of maintenance orders and arrangements. The Hague Conference will have a busy time but it is absolutely essential for the future globally of family law that The Hague has a greater active role in co-operative and consensual family law measures extending beyond the EU.

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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