As there can be dramatic financial and other differences for an international family in proceedings in one country or another, jurisdiction is fundamentally important. It is sometimes based on nationality. But some countries prevent citizens having nationality of more than one country. International family lawyers need to be aware of which countries allow or prohibit dual nationality
The Importance of Jurisdiction
Whilst I was in Singapore recently, an article in The Strait Times, its leading newspaper, referred to a report in Australia in September 2017 about some long-term immigrants not seeking Australian nationality. A reason given was that they would thereby lose their home nationality; the article referring to Singapore as a country that did not allow dual nationality. I had not realised Singapore was such a country and had rather naïvely presumed it was only the more “possessive” or less outward looking countries. My paralegals did some research and I was most surprised how many countries prevent dual nationality either completely or in only narrow circumstances. As nationality is so important for jurisdiction in divorce forum disputes, I set out here more information for the benefit of international family lawyers around the world
Courts will only deal with matters where there is a sufficient connection to the country or state of the court in question. This connection is known as jurisdiction. All countries have laws of jurisdiction setting out the specific connections for proceedings to be brought in their courts.
These are often national laws but with groups of countries they can be international. The law in England and Wales for jurisdiction for divorce is the same as the entire EU, at least until we leave the EU. The only difference is that England and Wales and the UK, along with the Republic of Ireland, rely on domicile instead of nationality which is used by the rest of the EU.
International families invariably have connections with more than one country. They may find that more than one family court may have jurisdiction. They may also find that one of the courts with jurisdiction may be significantly more beneficial to one spouse than the other spouse. This is often in the form of the financial outcome on divorce. Features include the fact that some countries will ignore some marital agreements, will not make spousal maintenance, alimony, orders whereas some such as England can be very generous, will not provide for the needs of the primary parent and may ignore or disregard some of the assets of the spouses including foreign assets. Some ignore any notions of equality between spouses
Whilst the law of divorce is increasingly similar around the world, the differences between countries in financial outcomes can be very stark and huge. It’s therefore advantageous for each spouse to endeavour to have the proceedings in the most beneficial country to them. This process is known as forum shopping; issuing the proceedings in the most advantageous forum or country. For this it is important to know which countries have jurisdiction to deal with proceedings
Speed can sometimes be essential, and particularly within the EU where all that matters in deciding where the proceedings will be is who is the first to lodge proceedings. Strength or weakness of connection with a country is irrelevant to the EU lawmakers.
For jurisdiction, many countries rely on nationality either on its own or as alternatives to residency.
Some require sole nationality i.e either spouse is a national of the country where the proceedings will be. However some countries, including within the EU, have jurisdiction on joint nationality i.e. common nationality of both spouses of the country where the proceedings will be. It is important for family lawyers to be aware of the nationality (or nationalities) of both their client and of the other spouse. Sometimes when spouses of different nationalities marry, and particularly if they live in the country of one of the spouses, the other spouse may take the nationality of their spouse. This might be additional nationality to their own. They might then have joint nationality, sufficient jurisdiction for a divorce.
It is crucial for family lawyers to know if both parties may have joint nationality of the same country because this may determine the outcome of a crucial dispute about where the proceedings would take place.
Preventing dual nationality
Many countries allow their citizens to be nationals of other countries. Countries such as the US, the UK, Australia and a number of European countries have no restrictions on holding dual nationality.
But a surprisingly high number of countries prevent this; either absolutely or under certain circumstances. Acquiring nationality of another country might lead to automatic loss of own citizenship.
What is the position and which countries prevent dual nationality?
This is not a definitive list and legal advice from the country in question may need to be taken. If there are any errors, please let me know so this article can be updated. But it is what I have been able to ascertain so far and give an indication, as well as to show there are many more countries preventing dual nationality than may be anticipated by family lawyers dealing with international families.
It must also always be remembered that countries change their nationality laws, sometimes very quickly for political and policy reasons, and that some countries seem to have very discretionary permissions for dual nationalities.
The countries which seem to prevent dual nationality are believed to be as follows: Andorra, Austria, Azerbaijan, Bahrain, Botswana, Brunei, Burma, Chile, China, Czech Republic, Denmark, Ecuador, Estonia, Fiji, India, Indonesia, Iran, Japan, Kazakhstan, Kenya, Kiribati, Kuwait, Latvia, Lithuania, Malaysia, Mauritius, Mexico, Myanmar, Nepal, Netherlands, North Korea, Norway, Papua New Guinea, Peru, Poland, Romania, Singapore, Slovakia, Solomon Islands, Thailand, United Arab Emirates (UAE), Venezuela, Zimbabwe.
Some seem to allow dual nationality under particular circumstances as follows:
- Egypt (requires prior permission),
- El Salvador (if born there),
- Georgia (requires permission of the President and only in national interests),
- Germany (requires prior permission),
- Pakistan (accepts only with 16 countries but this includes the UK, the US and Australia),
- Saudi Arabia (needs permission from Prime Minister),
- South Africa (requires permission),
- South Korea (allowed for some South Koreans since 2010 and some foreigners if married to a South Korean),
- Spain (allows only with certain Latin American countries, Portugal, Andorra and the Philippines),
- Sri Lanka (by retention),
- Tanzania (seemingly allowed for Tanzanian women acquiring foreign nationality through marriage),
- Turkey (requires permission),
- Ukraine (technically not allowed but happens in practice and then treated as if Ukrainian alone).
This list can only be a snapshot at a moment in time. In the present world, nationality is a matter of politics and national policy. But there are many more countries than might be appreciated who either refuse dual nationality or require certain permissions or conditions. The list may be a helpful indicator where a spouse of one nationality may not necessarily have taken on the nationality of their spouse, because it is prevented, and therefore there may be no joint nationality. It must of course always be remembered that the spouse may have given up their original home nationality to take that of their spouse so joint nationality would then apply
International family lawyers need to be vigilant and cautious. Joint nationality should be brought into account in all forum cases. Although England and Wales does not have either sole or joint nationality as a basis of jurisdiction, it is often involved in forum disputes with countries which use nationality, as do most EU countries. It is hoped this indicative list will provide good information
David Hodson OBE is a co-founder and partner at The International Family Law Group LLP, London. He is an English solicitor, arbitrator and mediator and also an Australian qualified solicitor, and sits as a part-time family court judge at the Central Family Court. He is an Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Member of the English Law Society Family Law Committee, a Fellow of the International Academy of Family Lawyers, a Fellow of the Centre for Social Justice, and a member of the Family Law Section of the Law Council of Australia. He is author of “The International Family Law Practice” (Jordan’s 5th edition Dec 2016). He is honorary Professor at Leicester University and visiting Professor at the University of Law. He received the OBE in 2015 for services to international family law.
This article was first published on Jordans Family Law here
David Hodson OBE
The International Family Law Group LLP
© 13 October 2017