Orders without borders: family law across Europe
Hunters has thoroughly enjoyed participating in the European Circuit of Lawyers' annual conference in Bordeaux this year, an event that helps to build our strong connections with colleagues across the continent.
On Friday 20 September, we participated in an insightful discussion on ‘Orders without Borders’ - exploring the complexities surrounding the recognition of foreign divorces across borders, with a focus on both French and English legal perspectives. The panel featured Francoise Bonnaillie-Valmorin of FBV Family Law; Amy Scollan, Family Partner at Hunters; and Dr Maria Wright, Senior Associate. Barbara Mills KC, Vice Chair of the Bar Council, chaired the event.
Francoise Bonnaillie-Valmorin outlined the French approach, explaining that the 2008 EU Maintenance Obligation provides certification for maintenance claims that can be used throughout EU member states. She highlighted that France is not a signatory to the Hague Convention, meaning that foreign divorces from countries outside of the EU and without a bilateral agreement must go through the Exequatur process - a civil court procedure for divorce recognition. This process can be lengthy, often lasting more than two years, particularly in cases where appeals are necessary. Private divorces are now recognised in France, but registering foreign divorces, especially English ones, can be highly challenging, often taking up to a year in certain regions. As it is compulsory to register foreign marriages in France, Francoise highlighted that cross-border couples should consider carefully where to marry to make recognition as simple as possible.
Amy Scollan discussed the English legal position, focusing on foreign divorces outside the EU, especially following Brexit. The Hague Convention of Divorce Recognition 1970 governs the recognition of foreign divorces, but it does not cover financial matters and with only 20 signatories, has only limited application. Instead, the family courts can also be used to recognise the divorce through a formal application. It is key that these divorces are finalised through proceedings. Informal or religious divorces - such as the triple Talak in Islamic law - are less likely to be recognised, as seen in a recent case involving a tribal Ghanaian divorce that did not meet the criteria for state recognition.
Dr Maria Wright addressed the issue of children in cross-border divorce cases. She explained the impact of the 1996 Hague Child Protection Convention, noting that the Convention provides recognition of foreign orders but does not demand formal 'certificates' from signatory states to provide crucial context as to the terms of the orders. Francoise noted key differences between English and French approaches: in France, Social Services only intervene if harm to the child has occurred, while in England, they intervene if there is even a risk of harm.
The panellists also touched on the more practical challenges to foreign recognition such as long wait times and evolving legal frameworks. Francoise noted that French civil partnerships (PACS) are increasingly gaining rights akin to marriage, while Barbara Mills KC suggested that although common law marriage may not be formally recognised anytime soon, cohabitants may see expanded rights over time.
The talk was an enlightening exploration of the legal intricacies surrounding cross-border divorce, underscoring the importance of continued dialogue and legal evolution in this complex area.