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Family Law 2020 a Practical Cross-Border Insight Into Family Law International Comparative Legal Guides Family Law 2020 A practical cross-border insight into family law Third Edition Featuring contributions from: Arbáizar Abogados Corbett Le Quesne Millar McCall Wylie LLP, Solicitors Ariff Rozhan & Co Diane Sussman Miller du Toit Cloete Inc Asianajotoimisto Juhani Salmenkylä Ky, Fenech & Fenech Advocates Pearson Emerson Meyer Family Lawyers Attorneys at Law FSD Law Group Inc. Peskind Law Firm Attorney Zharov’s Team Fullenweider Wilhite Quinn Legal Borel & Barbey Haraguchi International Law Office Ruth Dayan Law Firm Boulby Weinberg LLP International Academy of Family Lawyers Satrio Law Firm Ceschini & Restignoli (IAFL) TWS Legal Consultants Chia Wong Chambers LLC Kingsley Napley LLP Villard Cornec & Partners Cohen Rabin Stine Schumann LLP Lloyd Platt & Co. Wakefield Quin Limited Concern Dialog Law Firm MEYER-KÖRING Withers ICLG.com International ISBN 978-1-912509-96-6 ISSN 2398-5615 Comparative Legal Guides Published by glg global legal group 59 Tanner Street London SE1 3PL United Kingdom Family Law 2020 +44 207 367 0720 www.iclg.com Third Edition Group Publisher Rory Smith Publisher Paul Regan Contributing Editor: Sales Director Florjan Osmani Charlotte Bradley Senior Editors Kingsley Napley LLP Caroline Oakley Rachel Williams Sub-Editor Jenna Feasey Creative Director Fraser Allan Chairman Alan Falach Printed by Stephens and George Print Group Cover Image www.istockphoto.com Strategic Partners ©2019 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, PEFC Certified digital or analogue, in whole or in part, is strictly forbidden. This product is from sustainably managed forests and controlled sources PEFC/16-33-254 www.pefc.org Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters 1 International Marital Agreements – the Approach by the English Court on Divorce Charlotte Bradley, Kingsley Napley LLP 7 The Practice of International Family Law Rachael Kelsey & Mia Reich Sjögren, International Academy of Family Lawyers (IAFL) 13 Brexit and Family Law Charlotte Bradley & Stacey Nevin, Kingsley Napley LLP 17 Arbitration in Religious Communities Gary Conway, Lloyd Platt & Co. Country Q&A Chapters 21 Armenia 121 Japan Concern Dialog Law Firm: Narine Beglaryan & Haraguchi International Law Office: Kaoru Haraguchi Seda Soghomonyan 128 Jersey 28 Australia Corbett Le Quesne: Barbara Corbett & Pearson Emerson Meyer Family Lawyers: Nicholas Le Quesne Sheridan Emerson & Louise Carter 135 Malaysia 38 Bermuda Ariff Rozhan & Co: Ezane Chong Wakefield Quin Limited: Cristen Suess 142 Malta 45 Canada – Ontario Fenech & Fenech Advocates: Robert Thake Boulby Weinberg LLP: Sarah Boulby & Oren Weinberg 147 Northern Ireland Millar McCall Wylie LLP, Solicitors: Clare Lenaghan 51 Canada – Quebec FSD Law Group Inc.: Pierre-Hugues Fortin & 154 Russia Marie-Hélène Saad Villard Cornec & Partners and Attorney Zharov’s Team: Julie Losson & Anton Zharov 58 England & Wales Kingsley Napley LLP: Charlotte Bradley 162 Singapore Chia Wong Chambers LLC: Wong Kai Yun 66 Finland Asianajotoimisto Juhani Salmenkylä Ky, 170 South Africa Attorneys at Law: Hilkka Salmenkylä Miller du Toit Cloete Inc: Zenobia du Toit & Sandra Van Staden 73 France Diane Sussman: Diane Sussman 178 Spain Arbáizar Abogados: Amparo Arbáizar 81 Germany MEYER-KÖRING: Marie Baronin von Maydell & 186 Switzerland Nikolaus J. Plitzko Borel & Barbey: Sonia Ryser Hong Kong 87 193 United Arab Emirates Withers: Sharon Ser & Philippa Hewitt TWS Legal Consultants: Nita Maru Indonesia 97 198 USA – Illinois Satrio Law Firm: Andrew I. Sriro Peskind Law Firm: Steven N. Peskind 103 Isle of Man USA – New York Quinn Legal: Louise Byrne & Claire Clampton 204 Cohen Rabin Stine Schumann LLP: 109 Israel Gretchen Beall Schumann Ruth Dayan Law Firm: Ruth Dayan Wolfner & USA – Texas Tali Sivan Lahav 210 Fullenweider Wilhite: Lauren E. Waddell 115 Italy Ceschini & Restignoli: Roberta Ceschini WelcomeXX From the Publisher Dear Reader, Welcome to the third edition of The International Comparative Legal Guide to: Family Law, published by Global Legal Group. This publication, which is also available at www.iclg.com, provides corporate counsel and international practitioners with comprehensive jurisdiction-by-jurisdiction guidance to family laws and matters around the world. This year, four general chapters cover international marital agreements and family law, the implications of Brexit on family law, as well as arbitration within religious communities. The question and answer chapters, which cover 28 jurisdictions in this edition, provide detailed answers to common questions raised by professionals dealing with family law. As always, this publication has been written by leading family lawyers and industry specialists, to whom the editors and publishers are extremely grateful for their invaluable contributions. Global Legal Group would also like to extend special thanks to contributing editor Charlotte Bradley of Kingsley Napley LLP for her leadership, support and expertise in bringing this project to fruition. Rory Smith Group Publisher Global Legal Group Welcome Preface Dear Reader, I am honoured to be the contributing editor to the 2020, third edition of The International Comparative Legal Guide to: Family Law, and thank all the contributors for setting out so succinctly family law in their respective jurisdictions. Each chapter provides an essential summary of the main areas of family law as well as being a stark reminder of the need for individuals to take advice in any country where they have a substantial connection. Specialist family lawyers now have a much improved understanding of international conventions, regulations and other legislation affecting the practice of family law, and the family law organisation, the International Academy of Family Lawyers, has done a huge amount to raise knowledge and assist international best practice. I thank the Academy for their chapter which provides essential reading. With evolving family law around the world, family practitioners must continue to strive to improve their under- standing of international family law; this is essential if they are to properly meet the needs of their clients and their families and this publication will only assist in that endeavour. Charlotte Bradley Kingsley Napley LLP ChapterXX 1 1 International Marital Agreements – the Approach by the English Court on Divorce Kingsley Napley LLP Charlotte Bradley One of the biggest recent developments in family law in England effective pre-nuptial agreement, the court must consider all the and Wales1 has been the rising demand for marital agreements. Section 25 factors). The extent to which the court allows the exclusion of these principles when considering the validity of a Introduction marital agreement will vary in each case. However, a consideration of the couple’s needs and, in particular, the needs of any children With increased globalisation and continued migration to the UK, and will always be at the forefront of a judge’s mind when the agreement following Supreme Court decisions in the early 21st century which is considered, as will the intentions behind the agreement have introduced the principle of equality into financial divorce cases, (particularly if it is a non-English agreement which does not seek to the request for pre-nuptial agreements has risen sharply. The address all the financial provision to be made in the event of a future greatest demand for pre- and post-nuptial agreements appears to still divorce). be from those individuals whereby one or both of the couple have substantial international connections. But what about those couples who already have a marital agreement, prepared in another Approach of the Court to Foreign Marital jurisdiction, but who are divorcing in England? How will an English Agreements Prior to Miller and McFarlane judge treat the agreement? Until the House of Lords3 cases of White in 2001 and Miller and Radmacher v Granatino [2010] UKSC 42 is the first Supreme Court McFarlane in 2006, there was a dearth of case law dealing with marital case specifically dealing with the enforceability of agreements. The agreements and those limited reported cases tended to be forum case has cemented the English court’s already developing approach conveniens (stay of proceedings) cases, where one party relied on the to uphold domestic and foreign agreements, and has led many more existence of the foreign agreement to encourage the English court clients to seek agreements as well as encouraging the demand for to decline the English divorce petition in favour of the foreign statutory change (e.g. see the Law Commission’s 2014 report on divorce proceedings, rather than cases where the court was being Matrimonial Property Needs and Agreements at: https://www.gov.uk/ asked to uphold the terms of the agreement. government/publications/matrimonial-property-needs-and-agree- So, in S v S (Divorce: Staying proceedings) [1997] 2 FLR 100, a case ments). Since Radmacher, English case law in relation to the involving a New York pre-marital agreement,
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