Introduction

Divorce is the process of separation and dissolution of a married relationship. Marriage can be certified by any institution, but divorce, on the other hand, can only be granted by the court after considering all aspects, due process of law, and parties’ logical and social responsibilities. In addition, parties have to make an amicable decision regarding sharing liabilities, responsibilities, and duties towards each other or a third person benefiting from this relationship.

The divorce process is complex, yet easier when the couple shares the same nationality. However, the issue arises when the couple comes from different countries, and the question of international divorce and child custody arises. Well, that’s what we will discuss in today’s blog!

When opting to separate, the spouses have to consider when and where to apply for the separation, the proper authorities or institutions that can resolve or grant separation, the implications of such separation, and so on. 

Marriages fall within the domestic jurisdiction of the parties when the spouses are of the same nationality, but with the advent of time, marriages are also changing their jurisdictional nature. 

Countries have started to recognize marriage as inter-jurisdictional across nations. Hence, the liabilities and responsibilities of partners toward one another and custody of children always remain the moot point. 

This article helps you better understand what a cross-jurisdictional divorce looks like, the essential elements you need to consider before going for such divorce, and where the rights of co-parenting and custody of a child rest in light of some recent legal advancements and proceedings.

What are International Divorce and the Problems Associated with Child Custody Abroad?

When nationals of two countries are married and seek separation, it is simply an international divorce. When filing for international divorce, it is necessary to know the jurisdiction where you will file for divorce. However, it is tricky and technical when looking for a jurisdiction in international divorce, and it can be difficult for spouses to navigate this field without legal guidance.

For a valid divorce, your marriage must be legally valid as per the laws of the country where you are applying for the international divorce. 

It sometimes happens that parties to a divorce are subject to or eligible to file an international divorce in multiple jurisdictions. In this scenario, they must further consider these aspects:

1. If there is any settlement or agreement of separation between the parties already made, like a prenup. 
2. Disclosure of assets both before and after marriage and what will be the status of those assets.
3. The time required for the legal process to complete and implement separation.
4. The legal process for deciding a child’s custody.
5. Ease of obtaining judicial or mediation help.

There is no one particular international law to refer to when dealing with international divorce, but some jurisdictions to divorce have international recognition too. Many countries sign international laws like the Hague Conference on Private International Law, which provides guidelines for member countries when dealing with international divorce and child support.

As part of the international divorce process, engaging a lawyer with experience in the area is crucial. This will prevent a lot of trouble and issues. In addition, he will be able to give you the right advice to save you from any possible losses.

Child Custody and International Divorce

Besides splitting up in a marriage and dividing assets, child custody is among the most critical issues. Hence, it is vital to have a formal agreement between parents regarding their children’s maintenance, well-being, and upbringing responsibilities.

Either the court order or, with mutual understanding, parents draft the final agreed terms between the parents. Parents participate in the child’s daily activities to enhance their values, ethos, and culture. This arrangement saves the child from being burdened by only one parent and unknown of the importance of other parents.  

Do Divorced Parents Have the Option of Co-Parenting?

Courts have identified and permitted co-parenting as the child’s access method for welfare. 

Co-parenting is a modern concept derived from helping children not be burdened by the separation and divorce of parents. In this arrangement, parents take responsibility for the child in a shared manner. 

What are the Reasons for Deciding on Child Custody?

There are various instances where parents tend to:

1. Abduct the child.
2. Remove the child without due process or consent of another partner.
3. Transfer the child to a different nation or jurisdiction.

Let’s discuss what legal options are available to the other parent if the child is taken from the custody of one parent and taken to another nation without his consent. In what jurisdiction can he appeal, and what are other reasonable concerns arising? 

A parent can appeal in the court that granted the divorce and established the responsibilities of the parents.

In the international scenario, the treaty convention regarding the abduction of children is a recurring issue addressed in the Hague Conference on private international law. It has taken measures to prevent such acts and allow access to the wrongfully abducted person. 

Determining which Country’s Rules should Apply

While filing a divorce, spouses can follow jurisdiction by : 

1. Natural residences of the parties.
2. Workplace or newly acquired residence.
3. Have property.
4. Any other jurisdiction which is part of the agreement, such as prenup. 

So, if any of these factors are fulfilled in the UK, then Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 governs divorces in the UK. The domicile of a child determines the child’s custody in the UK.

Section 3 of the Family Law Act 1986 talks about the jurisdiction concerning the “parental responsibility” of the child who is: 

 (a) is habitually resident in England and Wales

 (b) is present in England and Wales but not resident.

The English courts have “inherent jurisdiction” to decide child custody in special matters.

Determination of a jurisdiction

Child custody jurisdiction refers to the court’s right to hear and decide on a case. 

• The court is expected to have child custody jurisdiction before it can decide and hear a case related to child custody and to ensure that its findings are valid and enforceable. 
• Child Custody jurisdiction has been difficult to identify over the years, which has unfortunately resulted in conflicts between many states and even federal law. 
• Currently, it is the Uniform Child Jurisdiction and Enforcement Act (UCCJEA) which has been commonly adopted by most states. 
• The main aim of UCCJEA was to resolve child custody issues and to provide jurisdiction to the home state of a child. 

It is possible for the jurisdiction for child custody issues to change over time due to reasons such as a family moving away completely from the original home state. However, usually, the first court that decides the child support issue makes all the decisions for the case even later. 

In situations where the child is in immediate danger, it is possible for the state court to allow a temporary emergency order. The order is made keeping in mind the best interest of the child, the protection of the child, and providing for the care of the child. In such situations, the court protects the child until the case is moved to the court with full child custody case jurisdiction. 

Remedies available in case the child is wrongfully taken

Wrongfully taking a child is legally known as Child Abduction or Child Removal. In simple terms, this is a situation when a parent or family member of the child, ends up taking the child with them, out of the country of residence. One common reason for such an occurrence is to hamper the other parent from contacting the child. This is done without the consent of the other parent and is, therefore, known as child removal or international child abduction. 

One solution to such a scenario has been provided under Section 3 of the Hague Convention, 1980. The convention is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring a prompt return and to ensure that the rights of custody and access under the law of one contracting state are effectively respected in the other contracting state. 

To apply the convention, 2 conditions are required to be concurrently met. First is that the involved states must be parties to the convention, and Second is that the child in question must not be older than 16 years. The return proceedings provided for in the convention can be initiated through an application in the state where the child’s habitual residence rests or where the child is being requested. 

This has now become a global remedy used by all nations signatories to the Hague Convention on the Civil Aspects of International Child Abduction. 

Initial Child Custody Jurisdiction in the US

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs child custody matters in the USA. The children’s custody is determined based on the following factors: 

• Where a child has resided in the past six months.
• Home state of the child

Under US law, removing or abducting a child from the custody of a parent is considered a serious crime and can result in imprisonment for up to 25 years.

The historical case of Chafin v. Chafin, 568 US (2013), in which the Chief Justice invoked the Hague Convention, awarded custody to the father, a US citizen, and ordered the child to be returned pursuant to this treaty. 

London: the ‘Divorce Capital’

Unlike the legislative provisions present in Germany, Australia, and Canada, the existence of no-fault provisions in England and Wales does not require the parties to be separated for one year to become eligible to file a divorce or seek dissolution. The only requirement they must fulfill is that the parties must be married or be in a civil partnership for one year. Therefore, as long as the habitual residence or domicile requirements are fulfilled, the parties become eligible to apply for divorce on their first marriage anniversary. 

Over the years, London has earned the accolade of being the ‘divorce capital’ of the world, considering its track record of successful claims from spouses with overseas assets who seek divorce and wish to settle their finances in England and Wales. One of the main reasons for the same is that the law is widely known to be fair, especially for the weaker party. In the jurisdiction of England and Wales, marriage has been interpreted as a partnership, which also acknowledges the non-financial contributions to the family, such as the time and effort of one spouse towards the rearing of the children, further ensuring that the other partner who is the breadwinner of the family is less burdened. Therefore, courts consider these aspects along with capital, income, property, and pensions before and after marriage. This is why London has become an ideal destination for divorce proceedings. 

In addition to these advantages, when it comes to the custody of children, the court’s first consideration remains to be the welfare of the minor child of the family who has not achieved the age of 18. The discretion and extensive considerations of the courts in England and Wales, which have been further emphasized in the case of White v. White (2000), highlight the fairness approach undertaken by London. 

Conclusion

The technicalities of the law do not govern divorce. It needs judges to use logic, understanding of social order, and reasoning. This process of granting separation becomes more interconnected when different jurisdictions and legal systems are involved. The same is the process with the custody of the child. We need to have a more humane approach while dealing with a child’s custody matters, given that it is a matter of life and identity for the child. 

Laws are evolving and trying to make greater changes without boundaries of jurisdiction or applicability. The Hague conventions and regional agreements are examples where citizens do not need to be bound by borders and have the liberty to choose the jurisdiction for their betterment and ease.

To understand your solutions through a professional lawyer, refer to LegaMart’s experienced team of lawyers who are always available to provide problem-specific and effective solutions to you. 

Frequently Asked Questions (FAQs)

If I get married abroad, do I need to get divorced in the same country?

No. English family courts usually deal with marriages that have taken place anywhere in the world, as long as the parties can establish a sufficient connection with England and Wales. The common factor considered by various jurisdictions is the country where you and your spouse have been resident, your nationalities, and your legal domicile. 

What is the remedy available in case the child has been wrongfully taken by one parent without the consent of the other parent?

One solution to such a scenario has been provided under Section 3 of the Hague Convention, 1980. The convention is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring a prompt return and to ensure that the rights of custody and access under the law of one contracting state are effectively respected in the other contracting state. 

How is the initial child custody jurisdiction decided in the USA?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs child custody matters in the USA. The children’s custody is determined based on the following factors: 

• Where a child has resided in the past six months.
• Home state of the child