Cross-border families
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Cross-border families

It is common knowledge that the world is becoming, or, rather, is already, a global village. With the ease of free movement and international businesses, migration and settling in new countries has become the mode du jour. The consequence of this is that there are a number of marriages and, therefore, family situations, that are international in their aspect.

For example, it is common for a Maltese to marry a foreigner and base their family in another foreign country or in Malta or for two foreigners who settle in Malta due to their work and bring up a family here.

“By easing the freedom of movement, the European Union has literally brought people together: an estimated 350,000 cross-border marriages take place every year...” (Leo Cendrowicz, EU Moves to Make Cross-Border Divorce Easier, Time Magazine, June 26, 2010).

Given that staggering figure, it is no surprise that there are many different versions of an international family.

However, in an international family, the legal problems faced by Maltese spouses can be doubled or even tripled when faced with marital issues.

One of the most infamous problems is the one concerning child abduction. Although child abduction can also occur if both parents are Maltese, it is more common when one of the parents is a foreigner.

Child abduction can occur for various reasons: say, because the abductor has lost the custody battle and instead of having to live away from his children decides to take them during a visitation session. This will cause heartache and distress not only to the parent whose children have been abducted but also to the children themselves, knowing that they are being taken away from their other parent, with many a time the children being lied to. Some just abduct their children without even waiting for the outcome of their legal case. They simply take matters into their own hands, which is commonly referred to as raggion fattasi.

Obviously, one cannot take matters into one’s own hands; there are legal measures and they need to be abided by. Some might argue that a legal case takes time. But this does not justify, in the slightest manner, taking matters into one’s hands.

However one may look at child abduction, the end result is always one that is not in favour of the child.

There are legal measures to counteract child abduction, and even to prevent child abduction, if one suspects that the child might be susceptible to become a victim of abduction. However, if such legal measures are not initiated, the child will be an easier target.

The consequence of international families might bring a clash of cultures.

What is the norm or legal in one country might not be the norm or legal in the country they are residing in. An Egyptian woman in the United States asked her lawyer to make arrangements “for her divorcing husband to buy a home for her and their children. In Egypt, the husband frequently must provide such accommodation upon divorce. Not so here (the US)” (Leigh Jones, Divorce Lawyers Without Borders: International Family Law Practices On The Rise in the National Law Journal, Legal Times, January 21, 2013).

Jones added that “in Europe, the increase in international divorces has prompted lawmakers in some of the countries in the European Union to standardise divorce laws”. This is of great interest to the Maltese scenario since “... a number of international marriages break down every year: 40 per cent of the EU’s cross-border couples divorce annually, accounting for 16 per cent of all EU divorces” (Leo Cendrowicz, EU Moves to Make Cross-Border Divorce Easier, Time Magazine, June 26, 2010).

In fact, Council Regulation (EU) no. 1259/2010, commonly known as the Rome III Regulation, provides for enhanced cooperation in the areas of law applicable to divorce and legal separation in the 14 member States of Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Austria, Portugal, Romania, Slovenia and Malta.

The beauty of this rule is to facilitate the parties involved in such conflict of laws to choose the applicable law to them as long as it is either the law of the State of which the parties are habitually resident or the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded or the law of the State of nationality of either spouse at the time the agreement is concluded, or the law of the forum (article 5 of Rome III).

International family law is of great importance in today’s world because of freedom of movement and the global village mindset.

annmarie.mangion@gmail.com

Ann Marie Mangion is a lawyer and a published author with a special interest in family and child law.

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