Foreign Judgments Offered as Evidence

Foreign judgments arrive in files constantly, most often divorce decrees, custody orders and money judgments. What is being asked of them varies enormously, and a great deal of wasted effort comes from arguing about recognition when the document was only ever going to be used as evidence that a hearing took place.

The three uses, and what each requires

Recognition of status. Asking the receiving system to treat a person as divorced, adopted or a parent because a foreign court said so, which engages doctrines about the foreign court's jurisdiction and fairness.

Enforcement of an obligation. Asking for the foreign order to be given effect against assets or a person here, which almost always requires a fresh proceeding in the receiving jurisdiction.

Evidence of what was decided. Producing the judgment simply to establish that a court reached a stated conclusion on a stated date, which requires nothing more than authentication and relevance.

They are frequently conflated. Parties argue about whether a decree is recognized when the only question is whether a hearing happened, which is a much easier question with a much shorter answer.

Ask what turns on it. Naming the fact the judgment is supposed to establish immediately identifies which of the three exercises is actually in play.

Recognition, and the questions it raises

Did the foreign court have jurisdiction. Assessed by the receiving system's own standards rather than by the foreign court's view of itself, which is the point that surprises people most.

Was notice given. A judgment obtained without the other party being notified in a way the receiving system regards as adequate is the classic case for refusal of recognition.

Was the proceeding fair. A broad enquiry rather than a review of the merits, concerned only with whether the process offered a real opportunity to be heard by an impartial decision-maker.

Is the result contrary to public policy. A narrow ground, applied where recognition would offend a fundamental principle of the receiving system rather than merely differ from its rules.

Recognition is not automatic. It rests on comity rather than obligation in most systems, and the absence of a treaty means each case is assessed on those general grounds.

Enforcement, which is a separate exercise

A judgment does not travel by itself. An order made abroad has no direct effect on assets or people in another jurisdiction, and a fresh proceeding is generally required to give it force.

Recognition usually comes first. The receiving court decides whether to recognize the judgment, and enforcement follows from recognition rather than standing on its own.

Money judgments have their own rules. Several systems have specific statutes governing foreign money judgments, with defined grounds of refusal that are narrower than the general doctrine.

Family orders are more complicated. Custody and support orders engage separate international arrangements, and the route depends on which country the order came from.

Limitation applies. Foreign judgments become unenforceable with the passage of time in most systems, and the period runs from the foreign judgment rather than from the application.

Evidential use, which is much simpler

Authenticate the record. A certified copy from the issuing court, authenticated by apostille or legalization, as any foreign document requires.

It proves what the court decided. That a case was brought, that a hearing occurred, and that a stated conclusion was reached on a stated date, which is frequently all that is needed.

It does not prove the underlying facts. A finding by a foreign court that a marriage was genuine is a finding, not evidence that the marriage was genuine, unless the receiving system gives it that effect.

Reasons may be more useful than the order. Where the judgment sets out findings, those findings frequently record contemporaneous evidence that is no longer available anywhere else.

Translation is required. In full, including the operative part, the recitals and any procedural notes, because a translated summary invites the argument that something material was left out.

Presenting a foreign judgment

Get the whole judgment. Not an extract or a certificate of the outcome, because the reasoning and the procedural history are frequently the useful part and the operative order alone explains nothing.

Get the file where possible. Pleadings, service records and any transcript establish whether notice was given, which is the question recognition most often turns on, and they are obtainable in the same way as any agency file.

Check whether it is final. An order under appeal, or one capable of variation on application, is treated differently from a final judgment, and the issuing court can usually confirm its current status in writing.

Establish the local status first. Whether the judgment is effective in its own country is the starting point, and a decree ineffective at home will not be recognized abroad.

Expect the name and date questions. Foreign judgments carry the same transliteration and calendar issues as any other document, covered in names spelled differently abroad.

The three uses look similar on the page and are entirely different in what they demand. Evidence that a court decided something requires authentication; recognition requires an assessment of the foreign proceeding; enforcement requires a proceeding here.

Recognition turns most often on notice. A judgment obtained where the other party was never effectively told about the proceeding is the standard case for refusal, and it is worth establishing what happened on service before anything else.

The reasoning in a foreign judgment is frequently more valuable than its operative part. Findings recorded years ago describe evidence that has since disappeared, and they are admissible as a record of what the court found even where the finding itself binds nobody.

Obtaining the whole file rather than the order is the step most often skipped. Pleadings and service records answer the questions that recognition raises, and they are usually obtainable from the issuing court for a fee.

Finally, all the ordinary problems of foreign documents apply. A judgment is a foreign document, and it needs authentication, complete translation and the same reconciliation of names and dates as any certificate.