David Hodson on International Family Law: German precision and Spanish practices
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Sep 15, 2011, 11:50 AM
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One of the most important things when dealing with a case with an international element is never to presume the foreign law will be the same as England even if it looks similar. It can cause real problems. Local advice should always be taken.
This was starkly shown at the IAML annual conference last week in Harrogate by a presentation from Werner Martens of Berlin, one of Germany's (and the world's) leading family lawyers. He explained German law in the context of divorce based on separation, particularly when there was a forum dispute.
A basis of divorce in Germany is one year separation. England has two or five. That apart, any difference? Fundamentally yes for forum disputes. In Germany the period of the separation can conclude when the case is ready to be heard and decided. In England it is when the petition is filed at the court. As long as there was separation of two years or five years, as applicable, before the filing of the divorce then the grounds for English divorce are demonstrated. It is one reason why one cannot simply amend an English petition to refer to grounds for divorce which arose after the filing of the original petition. In contrast, in Germany the one-year period of separation may still be ongoing when the divorce petition, or German equivalent, is filed.
If there is then a jurisdiction dispute, the party seeking to knock out the German proceedings can apply for a hearing to show the grounds do not exist because the one-year period has not yet elapsed. Enter the (allegedly) primary skill and attribute of lawyers worldwide and throughout history: delay! The lawyer acting for the petitioner simply delays the proceedings getting into a final hearing until the one-year has elapsed. If successful, grounds for divorce are established. If the judge and the court procedure is fast and the petition is chucked out for want of one year separation, appeal! That will almost certainly ensure it is finally considered when the one-year has elapsed and so the German court has grounds and jurisdiction.
Before there are howls of protest about Spanish practices within Germany, it must be remembered that there are several aspects of English family law relating to international cases where the court looks at the matter either at the time of the original event or at the time of the hearing. Perhaps none so blatantly obvious but it does occur.
Where the German practice is particularly troublesome is that the German court has no power, in practice, to grant temporary anti-suit injunctions such as Hemains. It might not necessarily give any material weight to such an injunction granted abroad dealing with German proceedings. Moreover the ECJ in cases such as Turner v Grovit  has made it clear that anti-suit injunctions are inappropriate within the EU.
Therefore being confident that there is no possibility that the other party will issue in another EU country because eg the requisite period of separation has not yet elapsed, is utterly unreliable and dangerous. In all instances, local advice from a specialist alert to the international elements is essential.
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 firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.