Content area
Full Text
Divorce cases with international issues appear with increasing frequency. This is consistent with anecdotal evidence and logic. The world is shrinking, globalization marches on, and the mobility of people, not to mention their sheer number, grows. International parental kidnapping, international child support problems, cross-cultural marriages, and dual citizenship1 all present special issues that can place a family law case in the international context.2
The issues in a divorce that can have an international aspect are myriad. Some, such as international child abduction, are addressed by treaties.3 Some, such as the immigration consequences of divorce on an alien spouse, are more the product of national law.4 Others, such as the couple divorcing in a country different from their nationalities or former residence, may implicate the courts and national laws of more than one country. This article analyzes the last set of issues.
Private international law, sometimes referred to as conflict of laws, refers to the body of theories and rules addressing legal cases that cross borders between two sovereign states. It should be no surprise that the application of these theories and rules to family law issues is not new.5 It is a field of law that offers rich possibilities to the practitioner faced with an international divorce issue. It also is a vast field. Its application to family law issues alone could fill tomes.6 This article, therefore, of necessity presents a simplified and general overview of the topic only. It is intended to serve primarily as an introduction to the subject, and to assist with issue spotting, rather than to provide answers in any given fact pattern.
For purposes of this article, the private international law concepts are divided into two discussions: first, questions related to which of two possible legal systems will address and resolve an international divorce case; and second, questions related to how a court with an international divorce case handles conflicting laws and enforcement issues.
THE "TWO FORUMS" ISSUE
In the United States, we are familiar with the problems caused by a highly mobile society with high divorce rates, living in a federal system, where family law remains the province of the individual states.7 The concept of the "divisible divorce" developed in response to the situation where the courts of two...