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David Hodson on International Family Law: Part III and the second bite of the Lychee

Date:5 OCT 2010

David HodsonHow much should the family courts of one country interfere with the final decisions of the courts of another country when there has been jurisdiction, proper investigation, disclosure, good legal representation and unbiased adjudication? Specifically should it occur between neighbouring countries including so-called westernised jurisdictions?  It is one of the bigger issues affecting the international family law community.

Marcus Dearle of Withers, Hong Kong, has drawn attention in the September edition of the International Family Law journal to the response of the Hong Kong judiciary and legislature to the problem faced by divorce actions in the neighbouring People's Republic of China. It is similar to the problems faced in England in the early 1980s. If a country recognises the genuine divorce granted by another country, must it also recognise and enforce the financial order made ancillary to the divorce? Public policy of many countries is to recognise foreign divorces as much as possible.

In England the problem was solved by Part III Matrimonial and Family Proceedings Act 1984 which allowed the opportunity for English financial provision after a foreign recognised divorce. Nevertheless the courts were reluctant to allow what was described as a second bite of the cherry. However in March this year, the Supreme Court considered the legislation in Agjabe [2010] UKSC 13. They endorsed the ongoing importance of the opportunity for English financial remedies where the financial outcome on divorce in the other country gave inadequate provision. It was a very well-balanced and internationally sensitive judgement. However because of EU legislation, extended to some other European countries, it is unlikely to be available if the financial outcome is in another EU country, especially if it is "maintenance".

Hong Kong has faced a very similar problem. It has highlighted in two landmark decisions of DD v LKW [2008] and ML v YJ [2009] HKEC 972, both going to the Hong Kong Court of Final Appeal later this autumn. The latter case resulted from a forum dispute ending with the husband obtaining a divorce and favourable financial order in Shenzhen (PRC). The wife then applied in Hong Kong, where they had been living for the previous 15 years or so, for non-recognition of the Chinese divorce and so to seek Hong Kong financial provision, with its closeness to the English equality starting point (the DD v LKW decision above). In a judgement with overtones of the decision of the English Court of Appeal in the Russian case of Golubovich [2010] EWCA 180, the Hong Kong court decided that whatever the opinion regarding the China family court process and outcome, public policy required a Hong Kong court to recognise it. The Hong Kong Department of Justice responded with draft legislation very similar to Pt III MPFA 1984.

Developments in Hong Kong will be followed closely over the next six months, perhaps as a guide to how other jurisdictions will deal with inadequate financial orders made by friendly and neighbouring jurisdictions. The English Supreme Court allowed a second bite of the cherry where fairness demanded it. Will the Hong Kong equivalent court allow the second bite of the lychee?

David Hodson is a Consultant at The International Family Law Group. 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 author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. 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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