COMPARING DIVORCE JURISDICTIONS IN INTERNATIONAL FAMILY LAW
Procedure May Trump Substance
Jeremy D. Morley
Matrimonial Strategist
June, 2008
When comparing possible jurisdictions for international family law cases, it is frequently important to focus on procedural matters and not simply to compare the rules and practices concerning the division of assets, maintenance and other substantive issues. For example, while it is important to know how different courts will determine which assets are to be divided upon a divorce and how they will determine the appropriate proportions, it is often even more important to compare the discovery techniques of the jurisdictions being compared and the disclosure obligations imposed upon the parties in the various jurisdictions. Case in point: California is at one extreme in requiring real disclosure, while Austria, Japan and many other civil law countries are at the other extreme in requiring very little disclosure.
These distinctions became apparent in a recent matter in which we were asked to compare possible jurisdictions for a divorce case. (The facts have been changed for confidentiality purposes). We determined that the client could bring suit for divorce as well as for the consequential financial issues in either California or Austria. We also concluded (with local counsel) that the division of assets would yield similar results in both places and that, while child support might be better in one jurisdiction, it would be offset by better spousal maintenance in the other.
The challenge was that our client believes that the other spouse is hiding assets and that it will, therefore, be necessary to conduct disclosure in order to ensure that the hidden assets are brought before the court. Accordingly, we compared the disclosure rules, both as to how the rules appear in the statutory language and legal texts, and also as to how they are applied in practice.
In civil law jurisdictions, such as some European countries, the practice is for the parties to be required to present their own evidence to the court, but there are generally no procedures for a party to engage in self-directed discovery. All that a party can do is ask a judge to sort out the evidence that each side presents and hope that the judge will decide to call a witness. A litigant is not expected to disclose all of his or her assets, and there are no penalties for failing to do so. Litigants are widely expected to present evidence that supports only their position, just as their witnesses are expected to provide only information that presents their position in a positive light. It falls to the judges to sort the evidence and the testimony. They determine what evidence is germane to the proceedings and, in many civil law countries, they can call their own independent witnesses.
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