INTRODUCTION Contributed by: Alex Carruthers, Oliver Heeks and Amber Raja, Hughes Fowler Carruthers
Family Law: A Global Overview Family law is an important part of a country’s legal and social fabric. The rules and norms of society are reflected in the laws that dictate what happens on relationship breakdown. As such, family law is an interesting insight into how a country views relation ‑ ships and the financial impact of their breakdown. This guide, hopefully, is not only useful for the professional when considering international aspects of family law but also provides an informative guide for the lay per ‑ son when considering how professionals deal with these issues in each country and an insight into the country’s society. Whilst the term “family law” is broad, it is most com ‑ monly interpreted as dealing with issues arising from relationship breakdown. This guide deals with three main areas arising from relationship breakdown. • Change in Status: If a relationship breaks down then, depending on the formal status of the parties, there may be a change in status going forward. For example, if the parties are married then there may be divorce proceedings or, in some countries, nul ‑ lity and judicial separation proceedings. Similarly, some countries have different forms of legal part ‑ nerships, eg, civil partnerships which are dissolved upon the relationship ending. Other, less formal arrangements, eg, cohabitation, may not require a change in legal status. • Financial Consequences: Inevitably, when a relationship breaks down, where there have been dependencies on either side, there will be financial consequences on its dissolution. • Children Arrangements. These issues are separate and distinct but there can be linkages between them – for example, if there is a formal dissolution of the status of the parties in one country then it is normally that country that deals with the financial consequences that arise. There is at least one notable exception to this rule, being Eng ‑ land and Wales, where the financial consequences of the breakdown of a marriage can be dealt with in that country even if the divorce itself happened abroad; however, that is the exception that proves the rule.
In some countries there are further linkages between these issues. For example, some jurisdictions provide for better or worse financial relief depending on the circumstances under which the relationship broke down. In Austria, for example, if there is a finding that one party is the cause of the breakdown of a rela ‑ tionship then the other party is entitled to significant maintenance. In most countries, children arrangements are normally kept separate from financial issues but clearly there are some linkages, eg, financial support for the benefit of children. Each of these areas is considered in more detail below. Change in status One of the most striking aspects in this area over the last ten years is the significant increase in the num ‑ ber of jurisdictions which recognise relationships that are between individuals of the same sex. Thirty or so years ago, there was no jurisdiction in the world that legally recognised those relationships but now the majority of jurisdictions in the world do so and, as a result, have to have in place laws to determine what will happen when such relationships break down. The sensitive nature of this evolution is a classic example of the trend which this overview highlights, namely that the law has to reflect the society in which it is embedded. As society has evolved, so too has the law. In countries where same-sex relationships are recognised, and therefore those jurisdictions deal with their breakdown, there can be differences between the legal terminology – whether it is a civil partner ‑ ship or a marriage and therefore whether it is a formal “divorce” – but the similarities normally outweigh the differences. Another change that has happened in some coun ‑ tries is the grounds on which a dissolution of the rela ‑ tionship can take place. In simplistic terms, there are generally two forms of “grounds” – in some countries the relationship can only be dissolved following the actions of the party who caused the breakdown. In other words, “fault” needs to be found. Some jurisdic ‑ tions are not “fault”-based and only require a period of time to have elapsed before a divorce is allowed, or
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