Thursday, March 08, 2012

Emerging Issues of Law in International Families

Due to the fast societal changes taking place in the life style from joint family concept to nuclear family concept and internationalization of families there are fast emerging issues like how to get a foreign child support order, how to enforce child support orders abroad, how to enforce a foreign child support order in the India, conflicts of laws in selecting a jurisdiction in which to seek support and the pending implementation of the 2007 Hague Treaty on Family Maintenance. We have to examine where similar actions in India are supported or slowed down. 
There are grey areas in the current immigration and nationality law issues affecting international adoption, surrogacy, Assisted Reproductive Technology and same-sex marriage as well as more conventional international families. We have to explore trustee and lawyer liability for setting up structures which help (even inadvertently) a client evade the tax laws of his/her country of residence, and how the courts in other countries are helping the country of residence enforce its tax laws. Many trustees and tax practitioners are concerned, particularly after the UBS scandal, about setting up offshore structures for nationals of other countries and they no longer wish to turn a blind eye to those countries' tax laws. Many foreign nationals come from countries where it is practically a way of life to have unreported offshore income and assets, but their countries of residence are suddenly beefing up their enforcement activities. Under what circumstances should a trustee or tax practitioner seriously consider turning away a client, and do those circumstances vary depending upon the client's country of residence? 
There is a great need of comparison of the various ways that different countries handle child custody matters, including international child relocation, and information about various attempts to create uniformity. We have to find the information on entering into a prenuptial agreement, religious prenuptial agreements, and difficult conflicts of laws issues related to the enforcement of such agreements in different jurisdictions. 
There are issues in Islamic Family Law like jurisprudential history of recognizing Islamic marriage and marital dissolution (talaq and mahr) procedure; current appellate trends, litigation strategy, custody under Sharia law and reciprocal recognition of custody orders. And issues like what to do for a client who owns foreign assets, or one who believes the other spouse or heirs have foreign assets. What if money has been hidden in offshore jurisdictions or placed in trusts or foundations abroad? There are issues that how to bring them into a divorce action or estate dispute either in a particular country or in countries with forced heir-ship and what may need to be done abroad. We have to resolve that how to pierce offshore asset protection trusts to repatriate and divide marital assets that have been transferred to avoid jurisdiction of the forum court. Sometimes there are questions that how to divide major marital assets located in multiple foreign jurisdictions under varied applicable laws and tax regimes and formulate an integrated, cohesive agreement acceptable in the forum court. 
Still there is no clarity on how to apply Brussels II, the 1980 Hague Convention, the 1996 Hague Convention and/or conflict of laws between the Hague conventions and Brussels II regulation in recognizing foreign court orders with regards to custody, visitation and relocation orders. Now the comparison is required on the conflicts of laws rules that many countries apply in divorce cases; and a consideration of the ways that courts resolve conflicts between jurisdictions (e.g. stays; forum non conveniens; international treaties). 
Sometimes there is a problem in fixing tax rights when married couples move from one country to another. In that case how the property deemed to be held for tax (and other legal) purposes if the former jurisdiction was a community property or civil law jurisdiction and the new jurisdiction is a common law jurisdiction, or vice versa?

Keywords: conflict of laws, international family, hague convention, tax


Ahmad, Tabrez, Emerging Issues of Law in International Families (March, 08 2012). Available at SSRN: http://ssrn.com/abstract=
 

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Prof. (Dr.) Tabrez Ahmad,
Program Director 
College of Law, Alliance University,
 City Campus -2nd Cross, 36th Main, Dollars Scheme, BTM 1st Stage 
Bangalore -560068
Central Campus- Chandapura - Anekal Main Road, Bangalore – 562106
tabrez.ahmad@alliance.edu.in
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