Family Law

News reaches of another southern Mediterranean country, Italy, facing financial crisis with more problems for the Euro currency and with the remaining EU countries expected to bail them out or write off their debts. This affects England as much as any others because of the role of the City. In these circumstances, is it not reasonable to ask for just a few favourable terms of the bail out? Favourable to international families and for us lawyers who daily try to sort out their relationship difficulties.

These problems are not direct components of the financial crisis but they are not wholly unrelated to the wider cultural issues. So a few thoughts:

• Land Registry entries should have some bearing on actual ownership rather than either being an aspirational wish list, a record that may be many years old and out of date or simply confusing so that no one, including no foreign lawyer, would ever recommend a client to rely on it in any settlement or any disclosure.
• Planning permissions once granted and affecting the value of real property should remain and not be subject to being varied years after the event by local authorities so potentially making the property worthless.
• The court systems should be speeded up. Not super fast. Just not grossly slow. Even the Attorney General of the European Court in Gasser v MISAT [2005] QB 1 condemned Italy, Greece and France where proceedings last an unreasonably long time, possibly contrary to Art 6 ECHR. Greece takes up to five years for a moderately simple jurisdiction dispute. Some southern Mediterranean countries take two years to put in place a mirror order from this jurisdiction. This is just not fair on international families.
• Within cultural margins of appreciation, is it acceptable in a EU wide conjoined, common justice system (as the EU tells us now exists) for countries to demand long periods of several years of separation before there can be any divorce, but also at the same time claim priority of proceedings (Brussels II and Maintenance Regulation) whilst the parties simply wait for the years to pass before there can be any finality, with no access to other courts with faster efficient action.
• If the courts of some EU countries cannot deal quickly with children abducted to those countries, then send them back immediately comply with the Hague and BII requirements. It is wholly wrong and not in the child's best interests simply to do nothing for many months.

Of course this is not common law versus civil law as the primary country directly affected financially is Germany. Moreover if it was England in this position, other EU countries would have a list of reforms impossible to list in only a 500 word piece! Moreover we cannot condemn the splinter in our neighbour's eye when our vision is blinded by the 4 by 4 timber sticking out of our own.

Nevertheless, the resolution of disputes concerning international families suffers and are made unnecessarily difficult by inefficiencies, basic disorganisation, administration incompetencies and unacceptably long delays of some European countries. Those who suffer are the families and their children. If the response is that this is a cultural issue in these countries, then that is fine. But therefore please can the EU stop telling us we are all one unified justice system, that we cannot use Hemain orders, that we cannot make comprehensive (needs/maintenance and sharing together) financial settlements and we have to apply the laws of these other countries which patently don't work any sense of fairness. No doubt these are low on the list of priorities of Euro zone Finance Ministers but for the European family and many other private clients, these cultural and administrative issues are equally important and need resolving if we are to have any confidence in a combined Europe

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 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.