Choose Your Foreign Attorney With Care. It’s Obvious Yes?

Is it necessary to say, that when appointing an Attorney to act for you in a foreign Country, be careful in your choice?

By Attorney I do not mean an American trial lawyer, but the legal meaning – An Attorney is any adult person not necessarily with any training or qualification in the Law [maybe just an acquaintance] who has been appointed by you to sign your legal paperwork in a foreign place and thereby bind you to the transaction.

When you live in England and have a property abroad to sell, if your work commitments or health issues mean that you cannot travel abroad, then you can appoint an Attorney by making a Deed of Power of Attorney at your Notary’s office.

In a recent case, an English person appointed an Attorney to sell his Portuguese house. The house there had been bought originally for €110,000.00 and in the light of the years of recession, the owner was disappointed but not surprised to receive the sale price of only €80,000.00 after his Attorney’s charges. That all happened a few years ago and by now was “water under the bridge” as far as the Owner was concerned.

Until a month or so ago when he got a tax demand in the post from the Portuguese Government demanding “unpaid Capital Gains tax” on his €44,000.00 profit. That’s right, the Attorney had sold the house for €154,000.00 and lied to him that the best he could get had been the €80,000.00.

Now the English Owner has to pay the tax and no doubt he will tell the Portuguese police and see whether he can find his criminal Attorney. [Who, if he had been less greedy and just sold for €110,000.00, would never have been found out because no CGT would have been due].

So, if you are wanting to appoint an Attorney abroad, do please contact me first. As well as certifying the legal paperwork from England, I can usually recommend a trustworthy foreign lawyer to act for you as your Attorney. Contact me on http://www.atkinsonnotary.com or phone +44 (0) 1138160116.

Different National Laws – Different Interpretations of the Same Facts

Today I mention a case which shows the extent of the legal complications which can be caused by the interaction of the laws of different  countries. It turns out that a couple can have three different marital statuses around the world – all at the same time!

In the case below – two people were
1 Never Married and also
2 Divorced and also
3 Parties to a Void Marriage!

As the world becomes smaller – in the sense that people move around it more than they ever did in the past – it is more and more necessary for legal professionals to understand the impact that the laws of one Country have upon those of another.

An interesting case [Asaad –v- Kurter [2013] EWHC 3852 (Fam)] reached a decision in the English Family Court in December 2013 – on the question of “what is a marriage”.

A couple then living in Syria had decided to marry and held their wedding in the Orthodox Church there in 2007. The law of Syria says that this ceremony entitled them to register their marriage with the State. But they never did so. Accordingly their civil [non- religious] status in Syria has always been “single man and single woman”.

So in the State of Syria, they were 1 Never Married

The couple travelled to live in England in 2007 as man and wife but had separated by 2009. The lady obtained a divorce certificate from her Church in Syria in 2009.

So their Religious status in Syria was 2 Divorced

She applied for a decree from the English Courts together with a claim against the man for financial provision. Her “husband” resisted the claim simply saying that they were not and never had been married in any sense recognisable in the English Courts.
There were four possible views which the English Court could have taken. 1 It was a valid marriage 2 It was a “voidable” marriage 3 It was a “void marriage” and 4 It was a “non-marriage”.

Numbers 3 and 4 sound similar – but on reflection there is a huge difference between a ceremony which two parties attend intending to become married but which is later not completed by registration (“void” or at best “voidable”) and, say, a ceremony entered into by two actors on a stage as part of a play (“non-marriage”). The words may be the same, but the intentions are obviously miles apart and no-one present at a play would think that the actors had become married.

The Court has decided for the female party. It said the couple are 3 Parties to a Void Marriage

The English Court agreed that Syrian state law would not recognise the marriage because they did not register it, so the parties were never “properly” married, but the Judge said that nevertheless the parties had attended at a Church and completed a marriage ceremony there, believing it at the time to be a wedding, with family members and guests attending to witness and celebrate. Neither party at the time believed that this was a sham. It was
therefore a “void” marriage and not a “non-marriage”.

The enormous difference between outcome 3 and 4 is of course that in this case – a “void marriage” – the way is now clear for the “wife” to seek a Court Order for financial provision.

The complexities of international elements of fact and law make the business of being a Lawyer, whether Notary or Solicitor, both harder and more interesting. This case illustrates the fact that increasingly nothing is straightforward. Legal advice should always be taken before taking a case to Court – Do please contact me whenever you have a legal issue which has any foreign element notary@atkinsonnotary.com or phone +44 (0) 1138160116