By Angie Todd
Life as an expat can be exciting but also challenging, particularly in relation to family matters. As a family lawyer working with international clients, I often advise my expat clients on the international aspects of family law. The issues that arise for separating spouses across borders can be many and varied. The issues can range from assessing the appropriate child maintenance award when the child is living abroad, understanding the tax implications for the sale and transfer of assets held offshore, valuing property held in a foreign jurisdiction or how property and parenting orders made in Hong Kong can be enforced and upheld in a foreign land. Whilst those are some of the potential issues that arise when a relationship fails, the cross-border issues that arise during the negotiations for a cross-border pre-nuptial agreement, when couples are not in conflict and are working towards a common end, can be just as complex.
So how can these issues be navigated?
These days it is not uncommon for couples to have a footprint in two or three different places as many couples have lived and worked across the global hot spots of London, New York, Sydney and Hong Kong, leaving a footprint in each place. Along the way, these couples may have acquired a property when they were living in Sydney, hold a pension from when they were living in London and the children may have been born abroad. When there is such a global footprint, it is essential to understand how family law applies in each place and how that place may also treat foreign court orders; as those outcomes might be different.
In addition to differing financial outcomes, such differences can include how and when a party can obtain a divorce and where the children shall live and how to regulate the time that they spend with each parent. It can save a good deal of time and cost if the differences in the laws of Hong Kong and the foreign place are understood at the outset so that a decision can be made as to the best place to proceed with the divorce.
When these issues are present, it is important to obtain specialist legal advice from a family law practitioner in each jurisdiction to determine whether it is best to proceed under Hong Kong laws or those of a foreign place. If there is a likelihood that one spouse may subsequently repatriate, the Hong Kong orders might be susceptible to being varied, superseded or even discharged by the courts of the home country. It is wise to ensure that the orders made by one court can be upheld in the other jurisdiction.
As a family lawyer, I often stress the importance of taking legal advice at an early stage. This can ensure that a party’s best interests are protected.
Angie Todd has practised family law since 2002. She is a Partner at FitzGerald Lawyers and is qualified to practice across Hong Kong and Australia.