What expats need to know about international family arbitration in cross-border disputes

Family arbitration already involves emotionally charged issues—divorce, child custody, financial settlements—but when it spans across borders, the challenges multiply significantly. Here’s why:

1. Multiple Legal Systems at Play

In cross-border family arbitration, at least two jurisdictions are often involved. For instance, a British expat divorcing their American spouse while living in France may face overlapping laws from:

• The UK (common law)
• The USA (common law, but state-based variations)
• France (civil law)

Each country has different approaches to:

• Marriage recognition
• Grounds for divorce
• Division of property
• Parenting responsibilities
• Spousal support

Arbitrators must carefully assess which legal principles apply and how they interact.

2. Different Attitudes Toward Arbitration in Family Matters

In some countries, family arbitration is widely accepted and enforceable (e.g., the UK, US, Canada). In others, especially civil law countries like France, family matters are traditionally under the domain of judges, not private arbitrators. This affects:

• The enforceability of arbitration decisions
• Whether family arbitration clauses are even valid
• The willingness of courts to cooperate

3. Varied Views on Public Policy and Children

In international family law, the “best interests of the child” doctrine often overrides any private agreement. Arbitration awards involving children may not be accepted by foreign courts if deemed contrary to local public policy. For example:

• • A French court might refuse to enforce a US arbitration award that restricts a French parent’s custodial rights.
  • A UK court could reject a German arbitrator’s ruling if it violates UK standards for parental support.

Jurisdiction refers to a court or tribunal’s power to decide a case. In cross-border disputes, jurisdictional conflicts often arise because:

1. Multiple countries may claim Jurisdiction

• Where the couple married
• Where they last lived together
• Where their children reside
• Where property or assets are located
• Where each spouse holds nationality

If both spouses live abroad but have property in their home countries, multiple jurisdictions may assert authority, each with its own legal expectations.

Example: A couple married in the UK, currently living in Switzerland, owns property in France and has children attending school in Canada. Four jurisdictions might have a stake.

1. Common Law vs. Civil Law Contradictions

• Common law systems (UK, US, Canada) emphasize precedent, party autonomy, and freedom to arbitrate.
• Civil law systems (France, Spain, Italy) prioritise codified law and state control in family matters.

This leads to problems such as:

• One country recognising an arbitration clause in a prenuptial agreement, while another does not.
• Varying recognition of legal separations or divorces.
• Different interpretations of marital regimes (e.g., community property vs. separate property).

1. Forum Shopping

Some expats try to “shop” for a favourable jurisdiction, particularly if one country provides better spousal maintenance or asset division outcomes. However, forum shopping can lead to:

• Parallel proceedings in multiple countries
• Conflicting awards
• Jurisdictional challenges that delay arbitration

The governing law in arbitration is not always the law of the country where the arbitration is held. In fact, multiple layers of law can apply:

1. Lex Arbitri (Law of the Seat)

The arbitration must be “seated” in a particular country, whose procedural law governs the arbitration framework (e.g., challenge of arbitrators, format, appeals).

2. Substantive Law

This is the law governing the content of the dispute—such as marital property division or custody rights. The parties may agree on this, but if they don’t:

• Arbitrators must decide based on conflict-of-law rules
• Courts may later override the choice if deemed contrary to public policy

Example: An arbitration seated in London may apply French law to the divorce but follow English arbitration procedure.

3. Law of the Enforcement Country

Even if the arbitration proceeds flawlessly, enforcement of the final award will depend on the national law of the country where enforcement is sought. This is a major issue if:

• The award involves child custody or support
• The award affects real estate held abroad
• One party refuses to comply and has moved to a new country

Tip for Expats: Clearly define the governing law in the arbitration clause—preferably with legal advice tailored to all involved jurisdictions.

This depends largely on:

1. The type of decision

• Financial settlements: Often respected and enforceable under treaties like the New York Convention (though family matters are technically excluded).
• Custody and parenting plans: Not always enforceable unless converted into a court judgment.

1. The Countries Involved

Civil law countries may not recognize private arbitration in family law unless confirmed by a local judge.

• France: Arbitration of parental rights or obligations is generally invalid.
• UK & US: Arbitration of family matters is allowed, especially financial disputes.
• Switzerland: Permits family arbitration, but custody decisions require court approval.

1. Use of mirror orders

To boost enforceability, lawyers often apply for a mirror order—a domestic court order replicating the arbitration award in another jurisdiction.

Example: A French arbitrator’s decision on spousal support is mirrored by a UK family court, making it enforceable in England under local procedures.

Expats must plan ahead. Here are key best practices:

1. Use an enforceable arbitration clause

Include an arbitration clause in your prenuptial, postnuptial, or separation agreement. Make sure it:

• Specifies the seat of arbitration
• Names a governing law
• Defines the scope (financial only? custody too?)
• Refers to a known arbitration body or process (e.g., IFLA in the UK)

2. Choose a seat in an arbitration-friendly jurisdiction

Select a seat where courts support family arbitration and facilitate enforcement. This is especially important if you expect resistance from the other spouse.

Ideal jurisdictions include:

• United Kingdom
• Canada (some provinces)
• Australia
• Switzerland (for financial matters)
• Singapore (for international cases)

Avoid seats where arbitration is heavily restricted in family law (e.g., France for custody).

3. Obtain local recognition

Convert your award into a judgment locally where assets are held or where enforcement is needed. This often requires:

• Filing in local court
• Translation and certification
• Evidence of due process

4. Avoid including non-enforceable matters

Custody, visitation rights, and relocation clauses may not hold up abroad. Instead:

• Agree to a framework (shared residence, holidays) and
• Have it reviewed or homologated by courts where the children live

5. Document everything

Ensure all communications, agreements, and arbitration proceedings are properly recorded and translated if needed. These documents can later protect against:

• Allegations of coercion
• Challenges on procedural grounds
• Misunderstandings around consent

A mixed-jurisdiction couple involves spouses from different legal systems or nationalities—for example, a Canadian and a French citizen living in Germany, or a British and Spanish couple living in Dubai.

These families often face:

• Different expectations of marital roles
• Diverging legal concepts (e.g., property vs. community regimes)
• Cultural assumptions about parenting, gender roles, or finances

Family arbitration can bridge these differences without imposing one national standard over the other, allowing for tailored solutions based on shared intent and mutual understanding.

One of the biggest risks in cross-border arbitration is partial enforceability.

For instance:

• A financial settlement is accepted in the UK, but rejected in France due to lack of public court validation.
• An agreement on custody made in arbitration is ignored in the US if it wasn’t mirrored in a domestic judgment.

Solutions:

• Mirror judgments: Registering the arbitration decision in courts where enforcement is needed
• Consent orders: Submitting the arbitration agreement to a judge for formal approval
• Legalization/apostille: Authenticating documents for use in foreign jurisdictions

It’s crucial to work with legal professionals who understand recognition procedures under bilateral treaties or the Hague Conventions like PacisLexis Family Law.

Yes!—and this is especially important in grey divorces (older couples), where issues extend beyond separation to end-of-life planning.

Arbitration can help decide:

• Division of retirement accounts
• Responsibility for elderly care costs
• Power of attorney or guardianship choices
• Mutual decisions about burial, healthcare access, etc.

Estate planning becomes especially sensitive in mixed-nationality families. For example:

• A will valid in the UK may not be enforceable in France due to forced heirship laws.
• An arbitration award affecting succession rights must comply with local inheritance laws.

Arbitrators may incorporate succession planning clauses that parties agree to execute in their home countries. Still, follow-up with a notary or estate lawyer is always needed.

Key traits include:

• Bilingual or multilingual
• Familiar with civil and common law systems
• Experienced in cross-border family law
• Sensitive to cultural and religious factors
• Ideally, recognised by international arbitration institutions

Ask whether the arbitrator is prepared to:

• Collaborate with foreign counsel
• Draft awards acceptable under multiple legal systems
• Provide mechanisms for neutral enforcement

Look for accreditation through:

• IFLA (UK)
• CIArb (International)
• Local bar associations with international law focus

While arbitration can be expensive upfront, it is often far more efficient and affordable than multiple parallel litigations across countries.

Arbitration costs:

• Arbitrator’s fees
• Legal representation
• Possible expert witnesses (tax, pensions, etc.)
• Seat administration (if under an institution)

Litigation costs:

• Multiple lawyers in different countries
• Court delays and translations
• Enforcement battles

Family arbitration often saves:

• Time (months, not years)
• Emotional stress (confidentiality, privacy)
• Money, especially when complex cross-border assets are involved