The Impact of Foreign Law on Child Custody Determinations

My article, The Impact of Foreign Law on Child Custody Determinations, has been published this week by The Journal of Child Custody.

Abstract: The author asserts that in contested cases concerning a child's proposed visit to a foreign country or a child's international relocation, it is essential for decision makers to appreciate the impact that the laws and procedures of the foreign country may have on the child's future well-being. Such cases require an adequate consideration, often with expert testimony, of whether the terms of a proposed custody order will in fact be recognized and effectively enforced in the foreign country, and for how long, since there may otherwise be serious adverse consequences for the child and a left-behind parent and foreign courts will generally have jurisdiction under their own laws to modify custody orders issued by a U.S. court.

To cite this article: Jeremy D. Morley (2013) The Impact of Foreign Law on Child Custody Determinations, Journal of Child Custody, 10:3-4, 209-235, DOI:

10.1080/15379418.2013.833833

To link to this article:

http://www.tandfonline.com/eprint/yPwEVvQNxqAXgJvmB5fg/full#.UqXUvCefkdQ

Divorced parents take to streets in fight for right to see children

November 24, 2013
By SATOMI SUGIHARA

Japanese parents fighting for the right to see their children after divorce are taking to the streets to highlight their plight.

In a recent campaign drive, groups of the parents have gathered in front of station terminals and plazas in 16 cities across Japan, including Tokyo and Nagoya.

Wearing yellow-green T-shirts and ribbons with the words “Stop child abduction,” they hand out balloons and leaflets to passers-by to raise awareness for their call that all parents have the right to see their children.

One of the members is a male company employee in his 40s. The man said it has been two years since he last met his children, now both elementary school pupils.

“Four fathers that I know killed themselves while agonizing about the fact they could not meet their children,” he said.

Since his divorce, he said he has been allowed to meet his children only several times, each time with his ex-wife's lawyer present. In initial meetings, his children were their usually bubbly selves, but their relationship became gradually awkward and distant since they could meet only on rare occasions.

“I want people to realize that forced separation from children produces tragic consequences,” the man said.

The campaign was organized by the “Oyakonet” Parents And Children's Network and other mutual assistance and awareness groups of divorced parents who are denied opportunities to see their children.

In June 2012, the groups formed a campaign network “Kimidori (yellow-green) Ribbon Project,” adopting yellow-green as their symbolic colors. They are seeking legislation to give divorced parents joint custody over children and ensure the rights of both parents to see their offspring after divorce. The Civil Code awards custody over children to only one parent, invariably to the mother, after divorce. This often means parents who do not win custody can no longer see their children when custodial partners refuse.

In fiscal 2012, divorced parents sought judicial arbitration and judgment in 11,459 cases for the right to meet their children. The figure was a three-fold increase over 10 years ago.

A survey by the welfare ministry that covered about 1,300 divorced mothers in fiscal 2011 found that in 51 percent of cases children had not seen their fathers regularly.

Joint custody is recognized in the United States, France and many other countries in the belief that continued exchanges with both parents is essential to healthy growth.

In 2012, the revised Civil Code took effect. It requires parents to decide visits to their children at the time of divorce. But it does not outline how this should be done.

http://ajw.asahi.com/article/behind_news/AJ201311240030

Interstate or International Relocation of Pregnant Woman

Jeremy D. Morley

An appeal court in New York has issued an important ruling on the issue of whether a woman who relocates to another state while she is pregnant is barred from having a future custody case being heard in the new location.

 

The Appellate Division, First Department  of New York’s Supreme Court rejected a lower Family Court's ruling that a woman's decision to move across the country while pregnant was tantamount to "appropriation of the child while in utero" and therefore could bar her custody case from being heard in her new location.

 

The ruling will presumably apply to international moves by pregnant women.

 

In the case, Ashton v. Bode, Nov. 14, 2013, a pregnant mother living in California relocated to New York to attend Columbia University. The Family Court referee found that the woman’s "appropriation of the child while in utero was irresponsible" and "reprehensible" and warranted a declination of jurisdiction in favor of the California court on the basis that New York was an inconvenient forum. The appellate court flatly rejected that finding, stating that, “Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy.” The appeal court also rejected “the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship.” It held that, “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty.”

 

 

Wealthy Chinese businessmen learn the value of the prenup

With divorce increasingly commonplace in China, prenuptial agreements are becoming a trend in order to avoid legal battles over property in the event of a breakup.

The trend is reflected in the booming business of Yao Xiangyang (a pseudonym), a lawyer in southern China's Guangdong province who began to move into the area of prenuptial agreements a few years ago after receiving requests from numerous entrepreneurs, which convinced him that few in China possess sufficient legal knowledge to protect their fortunes.

Lu Zhijie (pseudonym), 55, a Shanghai businessman, married He Chen (pseudonym), then a woman in her 20s who worked at his company, more than 10 years ago after divorcing his first wife and sending her and their daughter to live in Austria. A few years ago, Lu was left paralyzed after a car accident and He Chen subsequently took over the management of his company. He Chen later had an affair with Li Xin, a manager she had hired, and gradually placed the company and its finances under her complete control. Lu consulted a friend who was a lawyer, but found he had little legal recourse.

Lu's predicament could have been avoided had he arranged a prenuptial agreement before his remarriage. But in China, such agreements are generally only seen in marriages involving a foreign national. When Yang Huijuan recently got remarried, to an American artist, they signed a near 200-page prenup which covered the division of assets and also specified the sites for both the establishment and dismantling of the marriage.

Media stories are rife in China of exclusive matchmaking clubs introducing wealthy single entrepreneurs to potential trophy wives. According to the Chinese-language China Entrepreneur magazine, growing numbers of wealthy individuals in the country have begun to see the wisdom of what is perceived as a somewhat alien — and particularly American — arrangement that jars with the tradtional Chinese view of marriage. To cite one example, Meng Shan (pseudonym), a Shanghai businessman, convinced his wife-to-be, 10 years his junior from a middle-class family, to sign a prenuptial agreement which assures his sole retention of his property and company in he event of divorce.

http://www.wantchinatimes.com/news-subclass-cnt.aspx?id=20131117000033&cid=1503

Brazil and International Child Abduction

by Jeremy D. Morley

From an expert report that I prepared recently - and that was submitted to a California court - on Brazil's practices concerning international child abduction:

"Congress requires the U.S. State Department to determine the compliance by U.S. treaty partners with the Convention. The State Department's annual Compliance Reports are, in my opinion, extremely reliable and authoritative (although often unduly restrained and "diplomatic").

In its most recent report the U.S. State Department has singled out just five countries as being either ‘Not Compliant' with the Hague Convention or as demonstrating ‘Patterns of Non-Compliance with the Convention.' Brazil is one of the five countries. Indeed, in each such report for the past five years Brazil has been declared to be ‘Not Compliant' or to demonstrate ‘Patterns of Non-Compliance.'

Brazil is the only country with the dubious distinction of having been singled out in that way in each and every such annual report.

It is my opinion that, when a court is asked to bar a child's overseas visitation, it should balance the extent of the risk that a particular parent will abduct the child with the extent of the risk that the foreign legal system will not promptly effectively return the child if the child is retained in that country.

At one extreme is a child's potential visit to a non-Hague country that is a well-established safe haven for international child abduction such as India or that clearly does not adequately comply with the Convention such as Brazil.

In my opinion, a court should require far fewer warning signs that indicate that the parent might keep the child in such a country in order to justify - and to necessitate - an injunction barring such travel, since the risk of a mistake is so extremely high.

This office handles many international family law cases that have a Brazilian connection, working with counsel in Brazil as appropriate, including:

-Prenuptial agreements with a Brazilian connection

-Divorce cases with a Brazilian connection

-International child abductions to and from Brazil

-Child relocation and child custody cases with a Brazilian connection

-Expert testimony as to Brazil and international child abduction

See more at: http://www.international-divorce.com/brazil_child_abduction.htm

United States and Korea Become Hague Abduction Convention Partners

United States and the Republic of Korea Become Hague Abduction Convention Partners

On November 1, 2013, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention) will enter into force between the United States and the Republic of Korea.

Nov 03,2013 - United States and the Republic of Korea Become Hague Abduction Convention Partners

Office of the Spokesperson

Washington, DC

On November 1, 2013, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention) will enter into force between the United States and the Republic of Korea. The United States now has 72 partners under the Convention.

The Convention is the primary civil law mechanism for parents seeking the return of children who have been abducted from or wrongfully retained outside their country of habitual residence by another parent or family member. Parents seeking access to children residing in treaty partner countries may also invoke the Convention. The Convention is critically important because it establishes an internationally recognized legal framework to resolve parental abduction cases. The Convention does not address who should have custody of the child; rather it addresses where issues of child custody should be heard.

The Bureau of Consular Affairs, as the Central Authority for the United States under the Convention, welcomes our partnership with the Republic of Korea and looks forward to working together on this important issue.

For more information about international parental child abduction, please visit: www.travel.state.gov/abduction.

Ireland: Laws recognising prenups to be considered by Government

At present, prenuptial agreements are not binding in Irish law with settlements at the discretion of judges as part of divorce proceedings.

JUSTICE MINISTER ALAN Shatter say his department will be considering the legal position of prenuptial agreements as part of legal reforms.

At present, prenuptial agreements are not binding in Irish law with settlements at the discretion of judges as part of divorce proceedings.

The minister however has confirmed that the issue is to be considered as part of a legal review. This will include addressing issues concerning the making of pension adjustments following separation and divorce.

A spokesperson for the department says that a major priority is in looking at the constitutional issues relating to the establishment of an integrated family court system.

The Government is also expected to publish the draft Children and Family Relationships Bill before Christmas which will aim to reform laws on guardianship, custody of and access to children.

A number of gaps in the law surrounding parentage in surrogacy cases have also been exposed by recent court cases and these are also expected to be addressed by the forthcoming bill.

http://www.thejournal.ie/divorce-ireland-1154084-Oct2013/

Hundreds of Italian couples accused of fraudulently getting 'quickie divorces' in UK

Britain’s top family judge has been asked to cancel 180 divorces after being told the UK courts have been exploited in a massive “fraud” by Italians seeking a quick end to their marriages.

The couples from the devoutly Catholic country have assumed fake British residency in order to use the UK justice system to split up, avoiding the lengthy and costly Italian divorce process.
 

Court officials spotted the scam after realising that in 179 of the cases, one of the divorcing parties had given the same home address in the High Street, Maidenhead, Berks, which was not a residential property but the home of a post box.
 

Sitting in the High Court on Wednesday, Sir James Munby, president of the Family Division, was asked to overturn the decrees nisi and decrees absolute which have been granted in all 180 cases.

Italian couples face a mandatory three-year legal separation period, but can circumvent this using European Union legislation that recognizes divorces granted in any member state.

After obtaining foreign residency, they can in most cases file for divorce after six months, with Romania, in particular, reportedly becoming a destination of choice for Italian divorce tourists.
But it is illegal to use a bogus residency for these purposes.

Simon Murray, for the Queen's Proctor - the lawyer who represents the Crown if intervention is needed in divorce cases - told Sir James that the UK had been targeted, saying: “It seems that this was, as expected, a fraud.

“Italian couples were charged some 4,000 euros in each case for a fast-track divorce, with a Post Office office box in Maidenhead being used to establish residency. The decrees should be rescinded.
“It is a requirement of the Law of England and Wales that a person seeking a divorce in the English and Welsh Courts has been habitually resident in England for a period of at least one year immediately before issuing a petition of divorce, or that the respondent was habitually resident within the jurisdiction.

“The English and Welsh Courts have no jurisdiction to consider divorce applications by parties who are both resident abroad. It has come to the attention of the Queen's Proctor, whose role is to protect the integrity of the divorce process, that 180 petitions for divorce, involving Italian residents, have been advanced on a false basis.”

In the 180th case the individual asking for a divorce claimed to live in Epsom, Surrey, while in all the cases the spouses being divorced claimed to live in Italy.

Mr Murray said: “On the facts currently available, it appears that residence requirements were not met in any of the said 180 petitions. If this is so, the Queen's Proctor submits that the court had no jurisdiction to entertain the proceedings and, that being so, all of the certificates and decrees made in those proceedings should be rescinded and each of the petitions dismissed.”

The barrister claimed that 178 out of the180 couples had agreed not to oppose their divorces being annulled after being contacted.

He also told the judge that a representative of the Italian government was in court to observe proceedings with the Thames Valley police.

The High Court hearing continues.

http://www.telegraph.co.uk/news/uknews/law-and-order/10415161/Hundreds-of-Italian-couples-accused-of-fraudulently-getting-quickie-divorces-in-UK.html

England and Foreign Divorces: A Second Bite of the Cherry?

By Jeremy D. Morley 

This article was published in the New York Law Journal

October 24, 2013

American family law practitioners handling a divorce case with a significant English connection should understand that, even if a U.S. court has properly granted a divorce and handled its financial consequences, an English court might allow the ex-spouse to subsequently bring suit in a court in England seeking a more generous award.

England (and Wales) has a special procedure—known to its family bar as a "Part III claim"—whereby an ex-spouse whose foreign divorce resolved the financial consequences of the divorce can bring a new case for a "second bite of the cherry."

Part III of the U.K.'s Matrimonial and Family Proceedings Act of 1984 provides, in essence, that if England has divorce jurisdiction, or if it does not but the parties have an interest in a matrimonial home in England, then, even though a foreign court has issued a divorce and made a financial award, an English court may, in its discretion, make a subsequent financial award if justice so requires.

Since England is renowned—with ample justification—as the best place in the world for a less-wealthy spouse to divorce a more-wealthy spouse, the English procedure can yield great opportunity to a disgruntled already-divorced spouse and can create tremendous risk to the other party.

There is no need to establish that the foreign court acted unlawfully or unjustifiably or that the foreign proceeding was tainted by fraud or by any other factor.

The benefits of English divorce law for a less-wealthy spouse include the following, among many others:

• All of the parties' assets, both premarital and post-marital, are in the "pot" that can be divided by the courts.

• In a reasonably lengthy marriage the starting point for considering how to divide the pot will be 50-50.

• If there is insufficient capital to compensate a spouse for the improvement during the marriage of the other spouse's career or for a relationship-generated disadvantage suffered by a spouse who has, for example, sacrificed a career for the family, the English courts may award a compensatory factor in a spousal maintenance award.

• The English disclosure rules are strong, and the English courts will make strong inferences against a party who fails to make full and frank disclosure.

• The English courts will fully evaluate assets that are held in trust or corporate form if they believe that one spouse is the true owner of such assets.

• In big money cases the courts may require the wealthier spouse to fund a spousal maintenance award in the form of an up front lump sum.

The Process

In order to initiate the Part III process, an applicant applies first without notice to the other party by setting forth in writing the basis for a claim that a foreign court's order was financially insufficient and that the matter has a sufficient English connection. The second step is then a final hearing. If the application is successful, the English court can make such "order for financial relief" as it deems fit. In effect, it can issue the very same orders that it would have made if the divorce had actually taken place in England.

The governing legislation requires the English court, in deciding whether to grant permission under Part III, to consider many factors, specifically including the following:

(a) The connection the parties have with England and Wales;

(b) The connection they have with the country in which the marriage was dissolved or annulled or in which they were legally separated;

(c) The connection they have with any other country;

(d) Any financial benefit that the applicant or a child of the family has received, or is likely to receive, in a different country;

(e) The financial relief given by the country where the divorce took place and the extent to which the order has been complied with or is likely to be complied with;

(f) Any right that the applicant has, to apply for financial relief from the other party under the law of any other country;

(g) The availability in England and Wales of any property in respect of which an order could be made;

(h) The extent to which any order made under Part III is likely to be enforceable; and

(i) The length of time that has elapsed since the date of the divorce, annulment or legal separation.

Flexible Approach

The leading case on Part III is Agbaje v. Akinnoye-Agbaje [2010] UKSC 13. The parties were divorced in Nigeria, where they were born. They had dual Nigerian and British nationality. They resided in Nigeria for most of the marriage but they owned a second home in England. The husband was a barrister in Nigeria. After they separated the wife moved to England. Four years later the husband sued for divorce in Nigeria. Six months later the wife initiated a competing divorce case in England. The Nigerian court required the husband to provide a life estate in certain real estate to the wife and to provide her with a modest lump sum for spousal maintenance.

The then-former wife then brought a Part III case in England on the ground that she lived in England and that the Nigerian order was severely detrimental to her and compelled her either to live in England in poverty or to return to Nigeria against her wishes. The trial court upheld those claims, and the U.K. Supreme Court ultimately affirmed an order under Part III which required the ex-husband to transfer to his ex-wife a share in the proceeds of sale of the house in London.

In its judgment the Supreme Court insisted that there must be a flexible approach to determining whether to allow a Part III application. It declared that the courts have broad discretion in these cases to avoid "injustice," but it failed to provide much "meat on the bones" as to just how that should be accomplished. It declared that, on the one hand, "mere disparity" between a foreign award and what would be awarded on an English divorce "will certainly be insufficient to trigger the application of Part III," but on the other hand it also insisted that, "Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction."

Likewise, there is flexibility as to whether, having allowed a Part III application, the English court should determine the financial issues as if the case had been originally brought in England or should instead provide a more limited remedy. The court in Agbaje distinguished between two situations. It stated that if the English connections of the parties are very strong, the English courts should generally apply the English concepts of "fair" sharing of all of the assets of the marital partnership.

Under the famous cases of Miller/Macfarlane [2006] UKHL 24 and their progeny that would include sharing of both the premarital and post-marital assets of the parties. It would also include the English view in a "big money" case that there should be a "clean break" so that a financially weaker party should be provided with ownership of an appropriate residence and a lump-sum capital payment for projected spousal and child support.

On the other hand, however, the Supreme Court held that if the connection to England is not strong and a spouse has received adequate provision from the foreign court it is not appropriate for Part III to be used simply as a tool to "top up" that provision to that which he would have received in an English divorce.

Addressing 'Needs'

Agbaje was followed last year in Z. v. A. [2012] EWCA 1434. There, the parties were divorced consensually under Sharia law in an undisclosed foreign country. The husband was very wealthy but the wife also had substantial assets. The wife was allowed to pursue a Part III claim in England, despite the foreign divorce. However, the judge found that it was not appropriate to apply the English notions of sharing and compensation and ruled instead that the wife's claim should be assessed purely on the basis of her (and the child's) needs. (But note that "needs" in England means "needs generously interpreted," Miller/Macfarlane, supra). This was apparently because the parties were connected to several jurisdictions globally, although the judge went out of his way to say that judicial discretion in this area was remarkably unfettered.

Ultimately, the husband was ordered to pay a multi-million-pound lump sum, two-thirds being for the purchase of a substantial residence and one-third for capitalized spousal maintenance, together with substantial child support, which was ordered to be secured due to the husband's globe-trotting lifestyle.??

Substance Over Form

Most recently, in M. v. M. [2013] EWHC 2534 (Fam), an English court awarded £53 million to a Russian ex-wife even after she had procured a divorce in Russia. The English court accepted her claim that she had been unaware that the courts of England and Wales had jurisdiction. The parties, both Russian, had lived in the UK since 2005. The ex-wife traced assets, primarily in Russia, that her ex-husband held in a network of complex offshore corporate structures. The ex-husband refused to participate in the English proceedings and was found in contempt of court "many times over" for his breach of court orders and for repeatedly failing to disclose his assets. As a consequence, the court drew adverse inferences against him. The English court applied the full "sharing principles" of English law.

The M. v. M. court also applied England's broad principles of disregarding the form and looking to the true substance of the ownership of alleged marital assets. The ex-husband had asserted that various properties were owned by various companies as part of a planned tax-mitigation scheme, which necessitated both the beneficial (as well as the legal) interest in the properties being held by the companies. The judge found that the properties were held in a resulting trust by the companies for the husband. He ordered that the properties must be transferred to the wife.

Conclusion

Thus far, the English decisions in Part III cases have been applied primarily in cases outside the European Union and the United States. Nonetheless, the principles of the recent case law could well apply just as well to cases emanating from the United States. This should serve as a warning—or as an opportunity—to clients and astute counsel handling cases in the United States that have a significant English connection.

LEBANON: CHILD CUSTODY LAW

Shiite woman call on council to revise custody laws

BEIRUT: Nadine, 23, is allowed to see her young son for 24 hours once a week. It’s an injustice, she said, one she’s faced since a Shiite sheikh granted her and her ex-husband a divorce one year ago.

“This is minus the 10 hours that he sleeps, so I actually see my son 14 hours a week,” said Nadine, whose toddler wandered among the protesters.

She joined a dozen other women and a few men Saturday afternoon picketing in front of the Higher Shiite Council to demand that it revise its custody laws to be fairer to women.

Family law in Lebanon falls exclusively under the jurisdiction of religious courts, meaning each sect dictates rules regarding marriage, divorce, inheritance and custody. For Shiites, fathers automatically gain full custody of boys aged 2 years old. Mothers can keep their daughters until they reach 7 years old.

Nadine was one of several women at Saturday’s demonstration who are severely limited in the amount of time they can spend with their children. The women said there were many more like them, but that most divorced Shiite women were afraid to speak up.

Zeina Ibrahim, from Protecting Lebanese Women, an NGO that calls for more equitable religious and public policy, led the protest. She and her peers held up signs reading: “This law in our religion cuts me inside,” “You can’t take my children in the name of religion,” and “Shame on patriarchy and injustice.”

“The injustice inflicted on women regarding the issue of the age of custody is no longer bearable,” Ibrahim said, reading a prepared statement to a handful of reporters. “We came today to stage a sit-in in front of the Higher Shiite Council to say aloud ‘Stop taking women’s and children’s rights lightly, and enough with patriarchy under the cover of religion.”

Ibrahim also accused the Shiite religious establishment of corruption, bribery and favoritism.

In Nadine’s case, it was not the father, but his family who tried to keep her at arm’s length.

After the divorce, her in-laws limited time with her son to 14 hours every 10 days. She took the case back to court, where a sheikh told her if he could give her son to her permanently, he would, but he had to follow the law.

“He said, ‘If it were up to me, the baby should stay with the mother,” Nadine said.

Lebanon’s Sunni sheikhs allow the father to gain full custody of the children once they’re 12 years old, Ibrahim told The Daily Star. PLW was calling for the same from their Shiite counterparts.

Even the country’s main Shiite schools of thought disagree on which age a father should gain custody of the children. For example, the late Sayyed Mohammad Hasan Fadlallah was sympathetic toward raising the age limit.

Disagreement among sheikhs leaves some room for hope among divorcees, and Ibrahim said she received a call from the office of Sheikh Abdel-Amir Qabalan, deputy head of the Higher Shiite Council, saying the council was open to dialogue.

“It seems that something positive is looming,” she said. “Qabalan is open for dialogue with us next week regarding this issue.”

And if he isn’t, she said: “We will take to the streets again ... the Lebanese woman will no longer keep silent regarding her rights and the rights of her children.”

October 07, 2013 By Beckie Strum The Daily Star

 

No Divorce of Swazi Marriages

http://www.times.co.sz/news/90312-no-divorce-in-swazi-marriages-king.html

See the article below, published Aug. 12, 2013

His Majesty King Mswati III has reminded the nation that there is no divorce in a marriage conducted under Swazi Law and Custom.

The monarch said there was no earthly forum that had the powers to declare a customary marriage null and void. Only death, the King said, can bring a customary marriage to an end. Of late, the kingdom’s courts have seen an upsurge of cases where individuals married under Swazi Law and Custom want their marriages nullified. This, the King said, was foreign to Swaziland.

His Majesty made this pronouncement a fortnight ago at Ludzidzini Royal Residence during the paying of bride price for one of King Sobhuza II’s daughters, Princess Khetsiwe, by the Samuels family from Velezizweni in Mankayane.
Princess Khetsiwe’s mother is Inkhosikati LaMatsebula – one of King Sobhuza’s wives.

“We urge the Samuels to be together until death does them apart because according to our customs and traditions, once a couple gets married the traditional way, nothing can undo that marriage. Only death can undo that marriage. There is no divorce; that is unknown to us. Once we do it the Swazi way and complete the whole marriage process then it becomes a done deal.”

Continuing, the King said: “We do not even need to sign any documents to prove that marriage because you find that in future such documents are torn apart when some members of the family say the marriage is not in existence and, therefore, the documents should be torn. We do not have such under Swazi culture; we do not encourage it and practice this. All we know is that a person dies at their marital home. That is the Swazi way which was designed by God.”

The King said once a woman was smeared with red ochre (libovu), that meant the person was now a wife and therefore cannot be smeared with red ochre again by another family.
Red ochre is a substance that a woman is smeared with during a ceremony known as kuteka, which is one of the early stages in customary marriage.

“Once you are smeared with red ochre, it is not like in a marriage where you can divorce and then go on to sign another marriage document with another man. Once you are smeared with red ochre, no other family can also do that to you because that would be taboo to them. Nothing would ever go well for that family.”

The King said even if a wife was to desert her husband, she would be fetched to mourn him once the man died.  He noted that Swazi customary marriage was good and therefore encouraged that the youth should be taught about it. “The youth should know that once you get married traditionally, that marriage cannot be undone, yet other foreign forms of marriage can be undone,” said the King.

However, Human Rights Advocate Sipho Gumede has noted that divorce also exists in Swazi Law and Custom.

The Lawyers for Human Rights Secretary said according to Swazi Law, there was a process referred to as ‘Kumbuyisela ekhaya’ (reuniting a married woman with her parents or relatives), which is similar to divorce.

The senior lawyer claimed that divorce existed in Swazi Law and Custom because the process of accompanying a wife to her parental homestead, if she had committed adultery or witchcraft, meant that she was being divorced by her husband.

“Every marriage can be divorced, that is why even according to Swazi Law and Custom, a wife can be referred back to her parental homestead if she has committed adultery or witchcraft. The fact that the wife is taken back to her parental homestead, if she has committed an offence such as witchcraft, effectively means she gets divorced with her husband,” Gumede said.

 

Uniform Act on Premarital Agreements

COUNCIL OF STATE GOVERNMENTS INCLUDES NEW UNIFORM ACT AS “SUGGESTED STATE LEGISLATION”

September 19, 2013 – The Uniform Premarital and Marital Agreements Act was included today by the Council of State Governments (CSG) as “Suggested State Legislation” at the CSG’s National Conference in Kansas City, Missouri.  The Uniform Premarital and Marital Agreements Act, drafted and approved by the Uniform Law Commission (ULC) in 2012, is a new state law that brings clarity and consistency to a range of legal agreements between spouses or those who are about to become spouses.  It was enacted this year in Colorado and North Dakota.

A number of states currently treat premarital agreements and marital agreements under different legal standards, with higher burdens on those who wish to enforce marital agreements.  However, the Uniform Premarital and Marital Agreements Act treats premarital agreements and marital agreements under the same set of principles and requirements.

The Uniform Act also addresses the varying standards on both types of agreements that have led to conflicting laws, judgments, and uncertainty about enforcement as couples move from state to state.  The Act harmonizes the standards in existing uniform acts governing premarital and marital agreements (including the Uniform Premarital Agreement Act, Uniform Marital Property Act, Uniform Probate Code, and Model Marriage and Divorce Act).   The Act also addresses waivers of rights at death by agreement and requires explicit knowledge of other waivers.  Waivers and unconscionability are also addressed with provisions relating to domestic violence.

Forty years ago, state courts generally refused to enforce premarital agreements that altered the parties’ right at divorce, on the basis that such agreements were attempts to alter the terms of a status, marriage, or because they had the effect of encouraging divorce.  Over the course of the 1970s and 1980s, nearly every state changed its law, and currently every state allows at least some divorce-focused premarital agreements to be enforced, though the standards for regulating those agreements vary greatly from state to state.

The Uniform Premarital Agreement Act was promulgated by the ULC in 1983; since then, it has been adopted by 26 jurisdictions.  The Uniform Premarital Agreement Act brought some consistency to the legal treatment of premarital agreements, especially as concerns rights at dissolution of marriage.

However, the situation regarding marital agreements has been far less settled and consistent.  Some states have neither case law nor legislation, while the remaining states have created a wide range of approaches.

The general approach of this new Uniform Act is that parties should be free, within broad limits, to choose the financial terms of their marriage.  The limits are those of due process in formation, on the one hand, and certain minimal standards of substantive fairness, on the other.

Further information on the Uniform Premarital and Marital Agreements Act can be found at the ULC’s website at www.uniformlaws.org.

About “Suggested State Legislation”
Suggested state legislation is a compilation of draft legislation from state statutes on topics of current interest and importance to the states.  For more than 60 years, The Council of State Governments’ Suggested State Legislation (SSL) program has informed state policy-makers on a broad range of legislative issues, and its national Committee on Suggested State Legislation has been a model on interstate dialogue.

SSL Committee members represent all regions of the country. They are generally legislators, legislative staff and other state governmental officials who contribute their time and efforts to assisting the states in the identification of timely and innovative state legislation.

About the Uniform Law CommissionThe Uniform Law Commission is comprised of more than 350 practicing lawyers, governmental lawyers, judges, law professors and lawyer-legislators, who are appointed by each state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state laws where uniformity is desirable and practical.  Now in its 122^nd year, the ULC has provided states with over 250 uniform acts that help bring clarity and stability to critical areas of state statutory law.

About the Council of State GovernmentsThe Council of State Governments is the country’s only organization serving all three branches of state government.  CSG is a region-based forum that fosters the exchange of insights and ideas to help state officials shape public policy. This offers unparalleled regional, national and international opportunities to network, develop leaders, collaborate and create problem-solving partnerships.

Ireland: Guardianship of Infants Act

The Guardianship of Infants Act of 1964 was an act of the Parliament of the Republic of Ireland. It was signed into law on 25 March 1964.

This Act governs the law relating to guardianship and custody of children in the Republic of Ireland. The Act consists of three parts; Part I: Preliminary and General (Section 1–4), Part II: Guardianship (Sections 5–12), and Part III: Enforcement of Right of Custody (Sections 13–18).]

The entirety of the Act can be found at my website here:
http://www.international-divorce.com/Ireland_Guardianship_of_Infants_Act

Interview with Divorce.Co.NZ

In researching child relocation and abduction law, I came across Jeremy Morley.  His website, www.international-divorce.com, was very informative about the subject - something lawyers are not always known for.  I decided to call and interview Jeremy, as the subject of child abduction and relocation is currently a hot topic with cross cultural marriage, migration and divorce all on the increase.  Jeremy provides us with a birds-eye view of international family law showing us how extreme the legal standing of different countries can be. The desire to relocate is increasingly restricted by trends in family law which aim to keep parents in closer proximity to give children access to both parents. Most couples getting married never consider the possible outcomes should their marriage fail. But with almost 1 in 2 marriages in the UK headed for divorce, and similar numbers in other countries, nationality, immigration and repatriation are things to consider well in advance of falling in love.

Here follows Jeremy’s comments:

Jeremy do we have any idea how many people are affected by the exercise of relocating with children?

No one is collecting the statistics but as the world is shrinking international relocation is occurring with much more frequency. Most relocation is legal, approved or not contested.

Some of our site visitors who may be thinking about separating or already separated, may be considering relocating to cities or countries for work, family and support. Is there any rule of thumb?

Well you need to be a lawyer to give advice of course. The answer is also much too complicated and varies dramatically from jurisdiction to jurisdiction as to the extent to which courts permit it.

Most countries look at the best interests of the child but what that means, varies incredibly according to who the local judge is and what the local standards are.  It is a function of predicting what a court would do based on what you think sounds reasonable in the circumstances. But countries like New Zealand and Australia will be extremely hard to relocate out of, whereas England is likely to be much easier.

Australian law was changed and the judges are interpreting the need to ensure that both parents have a continuing strong role in the life of the children as meaning that relocation strongly interferes with that goal. 

Whereas England is much more amenable to looking at what is best for the primary caregiver because if the primary caregiver is happy then the kid is more likely to be happy. There have been some really nasty cases in Australia.

Can you give us an example of an Australian case?

A typical scenario is that an English girl falls in love with an Aussie, moves to Australia, has a baby and then discovers he is a jerk. The relationship terminates and she wants to go home to everything she has known in her life. But to the Australian courts will probably not allow her to take her child to live back home.  If she does go home the English courts will send the child back to Australia and mum will obviously go back with her child and then she will be stuck in Australia feeling as if she is a prisoner.  It happened to someone I know who is living in a remote part of NSW and it’s not fair but that’s the way the courts are there.

So that’s the outcome of the courts but how does it turn out for the mother? Does it affect her financially?

Yes absolutely. This particular person is living in a remote part of Australia.  I think she’s got a job, but often they can’t get a job. She is lucky that her skills are international because she is a teacher. But most often it’s impossible for people living overseas to get a job at the same level because their qualifications may be based on qualifications that work at home but not in other countries.

What about the United States, how do courts view relocation?

American courts will look very carefully at what is best for the child based on what the mother’s and father’s circumstances are and looking at who has been providing most of the day-to-day care. If I am representing a mother in a USA court who wants to make a relocation application, then I ask her to prepare a complete dossier. A presentation book, showing what her plan is for the child to be in the new place; photographs of exactly where he will live and where he will play; photographs of the back yard and the nearby park; a map showing the place where she will be living and its relationship to the school; a brochure from the school showing how great it is; what she will do for a living back home; photographs of all the family; and so on.  It should be an entire presentation contrasting the life that she currently has in this particular state in America versus the life that she expects to have with her baby or young child in the country to which she wants to relocate. Australia basically rejects it at the present time. I think it has to change because it produces great injustice.

Is New Zealand similar to Australia?

I deal with huge numbers of typically women, who just want to go home. They are the “trailing spouse,” they trail behind their husband as he moves to NZ, or they fell in love with him somewhere and he is from NZ and the deal was that they would settle there.  When the relationship ends she is left with no network, family, no friends and sometimes no job.

This must have a huge emotional impact?

Emotionally they can be left with no sense of being a local. And suddenly they start to notice the bad things in the country and it becomes a downward spiral.

Is it different for applicants of older children than younger children in trying to relocate?

A child is free to relocate at the age of majority which varies from country to country. In reality the courts will allow it earlier if the child insists. The children’s point of view will be taken into account when they are a teenager or maybe a year or two before that depending on how mature they are.  But it does often get easier when the child is a little older than a baby.  It is easier for them to have visitation in the other country for long chunks of time.  So that if mum goes back home to England for example, then an 8 year old can spend half the summer in NZ with dad and dad can come and visit once a year to England and they can talk every day on the webcam.  You can have visitation for chunks of time that you can’t have with a young baby.

What are the real costs in getting a child returned if they are taken overseas?

Oh you can’t possibly answer that. I am sorry. It depends on what country. You have got to hire a lawyer in the country to which the child has been abducted. If the child has been abducted in England it is free because they give legal aid to everybody. If they have been abducted to America it is not free. It can be tens of thousands if not hundreds of thousands of dollars.

One thing that concerns me with local New Zealand law is existing Prevention Orders now have to be discharged for a parent to take the child for a holiday. It puts the burden of trust back on the parents.

It is a typical problem.  If you are a parent and want to take the child away on a holiday, do you apply first? Or if you are the parent who is worried about the child being abducted do you need to go to court first?

I think you could take your children overseas on a holiday and say the other party verbally agreed. I wonder if there is anything here protecting the other or custodial parent.

Yeah it is dangerous, so the custodial parent has to be careful and perhaps not allow the non-custodial parent to have any of the child’s passports.  It happens and often too late for parents that should have been more careful maybe. You often have to expect the worst in this kind of situation.

In terms of making private agreements, can people agree for the other spouse to take the child overseas?  If it is a private written agreement will it stand in court?

A document that gives permission to one parent to take the child out of the country will prove that it was not a wrongful taking under the Hague Convention as consent to take the child away is a defence.  So the defence is established if there is such a document, it can be a formal agreement or it can be an email.   But in terms of it being a mutual promise whereby the parent who has taken the child promises to return the child within a certain period of time, then it is not effective.  The left-behind parent if he or she has a concern that the child might not be returned, needs to have an agreement made into a court order for it to have any effect.

Does being de-facto or having a child from a fling with someone make any difference to your rights to relocate with your child?

Assuming that the father is acknowledged to be the father, the rest of it is all the same, marriage makes no difference.  The only wrinkle comes into whether or not there has been an admission that is effective legally that dad isn’t the dad. Sometimes mum claims dad is dad but dad claims he is not the dad. That is a paternity question and if that is solved then, it doesn’t make any difference whether the parents are married or not.

We have a lot of immigration here, families from the UK, South Africa, Asian, USA, families relocating to New Zealand and Australia.  Feasibly we get many cross cultural families coming here too. If a British woman married to a South African man relocated to NZ after which the marriage fails, how does a request for relocation work then?

Everything that I have said thus far about relocation, and burden of proof, applies regardless of nationality.  So if they are residents of New Zealand regardless of where they come from, they and their children are residents of New Zealand.

So in your scenario if one of the parents want to go home wherever that may be, and if he or she does it without the consent of the other parent, it is kidnapping.  To avoid that, he or she needs to make an application for relocation.

There is also the issue of how other countries view court orders.

There are 70+ countries who are parties to the Hague Child Abduction Convention. Japan does not adhere to the Hague Convention.  A child will just about never come back if taken to live in Japan.  Japan will never acknowledge or give any respect to the foreign custody order. China is probably the same. If it’s Hong Kong it’s totally different.  It depends massively as to what country the child is taken to.

So where would we find out the status of countries with respect to the Hague Convention?

Most countries in the world are not parties to the Hague Convention.  The US State Department website tells you which countries are compliant and not fully compliant. But then the rest of the world…there is no way to know, every case is unique and every country has weird rules and laws. What I do a lot of if the potentially left behind parent is worried is to check and see if they are a party to the Hague Convention, and if they are not do some research. If it was India in question we would talk to Indian lawyers, to find out what are the chances getting an Indian court to respect to a NZ court order. Then if they give respect will it be words or will it be effective.  You end up then trying to show the NZ court that India will not in fact respect foreign custody orders.

Most of our judges here in the USA are so worried about offending other countries that they will usually not buy the evidence that a foreign country’s legal system is deficient. We have to lay it out in such great detail. It is hard to find to prove that if a child is taken to such-and-such a country the likelihood of him ever being returned is very low. Judges just don’t want to make an adverse ruling based on another country’s legal system.

What do you think that people should know that they don’t know?

I think that mothers are naive about following their heart without thinking through the consequences. Expats beware. What is really going to happen if your relationship breaks down? Do you realise that your child -- and therefore you -- can be stuck in a foreign country?

What if you went home to have your baby?

Country of birth doesn’t make any difference. If you have the baby at home the child’s habitual residence during that period of time it its home. However, if you then live in a foreign country the child’s habitual residence may quickly change to that new location. If you take your child back to your home country because you have had a fight with your husband and your home country is a party to the Hague Convention, your home country will most likely send the child back to the habitual residence and you presumably will follow. Most likely you will feel that you have been sent to jail.