We continue our series of hot topics in family law. This week Manders Law Managing Partner, Mary-Ann Wright speaks to Ekaterina Tyagay Ph.D. Partner and Head of Sensitive Matters Practice at Pen & Paper, Attorneys at Law, Moscow, about the most common mistakes in multi-jurisdictional divorce proceedings. If you are currently engaged in proceedings with an international element or are contemplating such proceedings, the information and practical guidance below will be of relevance to you.
About the Interviewee
Ekaterina has been practicing family and civil law since 2008. Formerly a Partner in one of the oldest Russian private law firms she joined Pen & Paper, Attorneys at Law in 2019 and launched their unique Sensitive Matters Practice, which focuses on family law, inheritance and other personal matters for high net worth individuals and their family members. Ekaterina advises clients and represents them in complex family disputes, including Russian and multi-jurisdictional divorce proceedings. Specialising in pre and post nuptial agreements, property division and wealth protection, Ekaterina’s expertise also encompasses children matters and the protection of parental rights (including the civil aspects of international child abduction). Along with “classic” family law issues, Ekaterina and her team provide legal support in complex reputationally-sensitive cases that involve domestic violence, abuse and harassment.
A member of the International Society of Family Law, in 2019 Ekaterina was awarded an honorary diploma by the Association of Lawyers of Russia in recognition of her many professional achievements in the field of jurisprudence, and her significant contribution to the development of the Association.
Ekaterina founded the Department of Family Law at Moscow State Law University and headed the department until November 2020. She is also a visiting professor at Tel Aviv University, The Buchmann Faculty of Law, teaching courses on property law and comparative family law (2017, 2019-2020). She is the author of “Real Estate Titles in the US: Complex Structural Models” (Prospekt, 2018) and “Corporate Relations: Complex Problems of Theoretical Study and Regulatory Framework” (Norma, 2014), as well as a variety of textbooks on civil and family law and numerous academic articles.
In your experience what should legal teams and their clients be most aware of at the beginning of a multi-jurisdictional case?
Without doubt it is vital to really understand and know your client and be sensitive to cultural differences. Apart from all the usual KYC procedures that must of course be followed, it is vital to be aware that clients who are used to managing their own business affairs can be tempted to also try to ‘manage’ the experienced legal professionals that they have appointed to deal with their multi-jurisdictional divorce matter. Clients often tell us that as they know how to run their business and how to manage their family affairs, they are the ones best equipped to devise the strategy, to manage and to resolve complicated legal battles being fought over a number of jurisdictions. This is not the case; and by taking this attitude clients risk doing themselves a disservice.
Collaborative working with the client is of course vital to success and we recognise that it is inherently difficult to detach oneself from the issues that are closest to one’s heart (be it kids, heartbreak or material disputes with a once loved one), a certain level of detachment is nonetheless necessary to achieve the best outcome. That is why management of the dispute and deliberations over strategy and tactics should be left to professionals. It really is for the best.
Notwithstanding the necessary level of detachment, you mention above, client engagement is also vital if matters are to proceed smoothly. With that in mind how do you ensure that clients remain constructively involved in the proceedings and indeed feel able to question and challenge their legal teams when necessary?
In multi-jurisdictional cases there are often several teams of lawyers involved who are giving advice as part of the whole, and on the discrete matters which arise in their particular jurisdiction. This can be confusing for clients and as such it is essential that the lead legal team presents a clear “road map” from the outset, which explains and records the client’s objectives and which the client can then approve and commit to.
I always remind my clients that they should regularly review their objectives with the lead legal team and insist that actions taken by all their legal teams, wherever they are, are geared towards achieving those objectives.
Multi-jurisdictional cases are often expensive for clients. What challenges have you encountered when dealing with this issue?
There are two:
1) explaining to clients the need to avoid the temptation to attempt to minimise costs by not getting the very best representation in both jurisdictions Sometimes we see clients engaging the best representation in one of the jurisdictions (usually the one where the main proceedings are taking place) and trying to save costs on the other “local” counsel. This is a mistake, which can lead to disaster.
It is simply unrealistic for clients to rely on counsel from one jurisdiction and expect them to know all the intricacies of both law and practice in another, especially if the legal system in each jurisdiction is markedly different, as it is in Russia and England and Wales. For example, in Russia interim orders are not usually made by the court in divorce proceedings, or in disputes regarding the division of marital property. They can however be made in children proceedings to protect the interests of the minor. There is also no concept of joint or agreed applications, so even when both sides agree that they want to ask the court for an adjournment or a stay, each party needs to file a separate application and seek the court’s agreement.
The bottom line is that it is essential to get the best representation you can afford in both jurisdictions, to achieve the best outcome; and
2) advising clients of the potential pitfalls of engaging in direct negotiations with the other party
Sometimes clients believe that because they share a common language and culture with their ex-partner, along with years of cohabitation, children, and a family name, they are better equipped to negotiate with the other side directly, in order to achieve their desired outcome. When this happens, the lawyers are often left to pick up the (legal) pieces when the negotiations breakdown, with all the additional costs that this entails. The message is simple- it’s a false economy, so don’t do it!
You have talked about the common pitfalls for clients, what are the common pitfalls for lawyers when dealing with fellow professionals in other jurisdictions?
In England and Wales family lawyers understand that the courts cannot and will not immediately resolve all the issues in a case and there is strict procedure to be followed in order to achieve a fair and just settlement, all of which takes some time. This is not the case in other jurisdictions, including Russia. Any failure to understand the mentality and expectations of legal professionals and courts in the other jurisdiction, and to allow for this in the initial planning stages of the litigation, will cause difficulties further down the line. For all the teams to work together effectively this issue needs to be addressed as a priority from the outset. Understanding the local legal mentality is vital and any attempts to interpret domestic laws in other jurisdictions will ruin your credibility, land you in hot water and potentially mean that your client is faced with very serious implications.
Many clients, especially those who have limited prior experience in litigation, hold onto the belief that a positive court decision will automatically resolve all their issues. However, enforcement is always an issue especially if the other party is leading a life across multiple jurisdictions and has the ability, wherewithal, and funds to successfully hide assets or avoid accountability.
We always aim for a settlement without litigation but, again, being clear about the law which will govern any such agreement and its enforceability in other jurisdictions is key.
And don’t forget … that in many jurisdictions a client may receive correspondence from the court directly, even where they have lawyers on the record. It is important that all such correspondence is located, made available and reviewed by the whole team as well as being officially translated into both languages. The devil is in the detail, so when it comes to different legal systems, such as Russia and England and Wales, translation of legal documents may be crucial.
In conclusion what is your top tip for clients?
That’s easy! Don’t leave dealing with matters until it is too late.
Quite understandably many clients don’t want the hassle or costs associated with getting proper legal advice. They want to remain amicable with their ex-partner and may be afraid that taking advice will be construed as an “act of war”. Thus, they wait and drag their heels, often only reaching out to professionals when it’s already too late or when they are at a significant disadvantage.
Yes, engaging legal team(s) without doubt means incurring costs, spending time, and potentially signalling to the other party that “things are getting serious”. This however is a minor inconvenience compared to finding oneself in the situation where you are outmanoeuvred, unrepresented and facing financial ruin, or even more importantly having the care of and contact with any minor children adversely affected.
In short, spend the cash and get professional help. You’ll thank yourself and your team(s) later.
For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here. Note: this blog is intended to give an overview (rather than comprehensive guidance and advice) on your legal or financial position and is provided for information only. It is not an endorsement of any product or service provider.