Family disputes increasingly transcend geographical borders, involving other countries and complex jurisdictional issues in the context of legal proceedings. This trend reflects the reality that families are commonly spread near and far – with many family members living, studying or working in other countries. The experienced cross border team at Rogerson Law Group has years of experience successfully representing divorce, family and other clients in cross border disputes.
Cross Border Divorce and other family related litigation where spouses or other family members are abroad, or where assets are located elsewhere, require expert cross border lawyers who have solid experience in dealing with such cases. They can be highly complex, costly and take longer to resolve. The importance of instructing experienced cross border lawyers should not be underestimated.
A recent case in Hong Kong that reached the country’s Court of Final Appeal illustrates the complexities that can arise.
In this case, the parties were German nationals living in Hong Kong and had signed a pre-nuptial agreement (PNA). When the marriage broke down, a separation agreement was drawn up in Germany.
The wife claimed the agreements were invalid on the basis of undue influence. Initially, the Hong Kong Court said the matter should be heard in Germany because most of the assets were located there, and both the pre-nuptial agreement and the separation agreement were entered into there. However, both the Court of Appeal and the Hong Kong Court of Final Appeal (CFA) overruled this and decided that the wife’s connection to Hong Kong was overwhelming to the extent she could issue there ‘as of right’.
Furthermore, the CFA ruled obsolete the principle that an agreement providing for future separation was against public policy – and found no distinction between pre-nuptial agreements and separation agreements. Following a landmark ruling in the UK courts, the CFA held that parties cannot oust the court’s jurisdiction. However, the court must give due weight to an agreement which had been entered into freely, unless in the circumstances it would not be fair to hold the parties to the agreement. Each party must have entered into it freely, in the absence of undue influence and possessing all the information necessary for making their decision. Furthermore, each party must intend that the agreement will effectively regulate the financial consequences on separation/divorce.
The ruling gives important clarification on the issue of jurisdiction – particularly in the context of pre-nuptial agreements and separation agreements, and the wider issue of cross border asset protection.
How can we help?
If you are involved in a divorce or family dispute and a party and or assets are located abroad, contact the experienced cross border family lawyers at Rogerson Law Group for advice and support. We have years of experience in successfully advising parties in cross border and asset protection cases. Contact us today for a consultation.