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Facing an International Family Law Dispute? Important Legal Distinctions to Understand

Posted by Jonathan W. Lounsberry | May 23, 2017 | 0 Comments

Photo Credit: Bowman

In April 2017, the International Academy of Family Lawyers (IAFL) and the AAML New York Chapter jointly presented the Introduction to International Family Law conference at the Down Town Association in New York City.  The focus of the conference was an introduction to international family law concepts and practice for attorneys who work with IAFL Fellows, like our Senior Partner, Ben Stevens. The conference speakers were family law professionals and leading lawyers who are fellows of the IAFL from throughout the United States, Canada, United Kingdom, Europe and South America. The litigation team of The Stevens Firm attended this informative and fascinating conference to learn the latest trends to better serve our clients dealing with international family law issues. 

One important distinction discussed at length during the conference is the type of law a country may apply: common law or civil law, or a combination of the two. Common law is generally "uncodified", and relies on a mix of legal precedent (decisions made by the courts) and statutes. In a common-law jurisdiction, the court will apply case and statutory law to the facts of the case when making its decision, which may shape the law. As a result, the basis of a common-law jurisdiction is an adversarial system –– trials with witness testimony produced as the tool for applying the law. Countries which employ a common-law system include the United States (save the State of Louisiana), the United Kingdom and its former colonies.

Civil law, on the other hand, is "codified", and relies exclusively on a continuously updated legal “code,” setting forth legal remedies, procedures, and punishments. In a civil-law jurisdiction, the court makes its decision within the parameters defined by the legal code. Decisions by the court have little to no effect on shaping the law, they simply 'follow what the law already states'. As a result, the court tends to rely less on live witness testimony and lengthy hearings. Countries which employ a civil-law system include continental Europe and most countries in South America. There are some countries, like Scotland and South Africa, which use a mix of common law and civil law.

Why is it important to understand the type of law that a country applies?

Each type of law will not only require your attorney to prepare for your case very differently, it may also result in very different results depending on the issues raised within your family law matter. For instance, in a case involving the division of marital assets and debts, most civil law countries treat the marital estate as communal property and will likely divide the property by applying the legal code with little testimony from the parties. However, if the same case was heard in a common-law jurisdiction, the Court is more likely to take testimony from the parties and witnesses during a trial before making factual analysis considering both case law and statutes. Given the different approach in each Court, it is more than likely the Court's decision in each case will differ in the classification and division of the assets and debts.

Do international Family Courts have discretion in their decisions?

It is important to note that depending on the jurisdiction your international family court matter is heard, both types of Court (common and civil) allow for the court to have different levels of discretion. Therefore, it's critical that your family law attorney is well-versed in the types of jurisdictions which will apply in your case. Knowing the types of law applied in each available jurisdiction will allow for a party to better understand how to plan and prepare the case in order to achieve the best results for the client and his or her family.

If you or your spouse are internationally connected and facing family law issues, don't wait until it is too late to find out how each jurisdiction will affect you and your family. Contact our office today at (864) 598-9172 to set up a consultation with our Senior Partner and Fellow in the IAFL, Ben Stevens.

All consultations are confidential and our office offers a discreet entrance and convenient off-street parking.

About the Author

Jonathan W. Lounsberry

Senior Associate Attorney


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