Wednesday, November 18, 2015

Update on Prenuptial Agreements in India

Jeremy D. Morley

We have previously written -- -- that:

India has no law on prenuptial or post nuptial agreements. Such agreements are not common in India and are contrary to Indian customs and views about marriage. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging more affluent people to consider the idea in India.

There appears to be no significant case law in India on the topic of prenups or postnups.  Critically, the Supreme Court of India -- which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce -- has taken no stand on the matter of prenuptial agreements.

It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship, it is not possible to assure -- or even to expect -- that such agreed terms will be upheld in an Indian court.

International clients should also anticipate that prenuptial and post nuptial agreements entered into while they reside outside India will likely not be enforced if either of them should initiate a divorce case in an Indian court.

Now, the Times of India reports that India’s Ministry of Women and Child Development has called for consultations on the issue of whether prenuptial agreements should be recognized in India. Reportedly, the ministry feels that the move will protect the interests of women who are in live-in relationships or marriage. "Our intention is that in the event that the marriage gets in to trouble, a woman should be able to get financial support without going through a lengthy, expensive process of divorce which may act as a drain on her resources and she may not end up with anything. The consultation will help us address the way forward,'' an official said.
Meanwhile, India’s Ministry of Law and Justice has reportedly confirmed that, “The prenuptial agreement is not recognized in India. Most couples, mainly those who are rich and influential, enter in to an agreement under the Indian Contracts Act. However, this has not been legally upheld in court.'' Since marriage in India is not seen as a "contract'' there are legal issues in enforcing it upon a married couple. Only a "nikah'' or a marriage under Islam is a contract but that is under the Muslim Personal Law and has its own rules related to mehr and maintenance.

Thursday, November 12, 2015

Egyptian Child Custody Law & Human Rights

Jeremy D. Morley
The Court of Appeals of Washington State, Division One, has issued a Commissioner’s Ruling refusing to allow discretionary review of a lower court ruling that held – based on the expert evidence of international family lawyer Jeremy D. Morley, as well as another expert – that Egypt's child custody laws violate fundamental principles of human rights.

Consequently, although Egypt is the child's home state under the UCCJEA, the Washington court may assert jurisdiction.

The trial court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father’s domicile. It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a “disobedient” wife. Thus, there is “clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights.”

For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband’s consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.

The so-called “escape clause” in the UCCJEA has not been much used thus far.  A key reason for this is that there has often been a failure to offer effective expert evidence concerning the laws and procedures of the foreign country. The Washington case demonstrates the value that such evidence may provide.
The Commissioner cited with approval a decision by the Louisiana Supreme Court under the UCCJEA's predecessor, the UCCJA, which had affirmed the trial court's conclusion that declined to recognize Egypt as a "state" "for purposes of determining jurisdiction based on the fundamental differences between Egypt's child custody laws and Louisiana's child custody laws."

Thursday, October 29, 2015

In Japan, Adultery Can Cost You Your Job as Well as Your Marriage

Fūkibinran. Now that is a Japanese expression you don’t see around much these days. I bet many young Japanese readers don’t even know how to read the four kanji that make up this word: 風紀紊乱. It means something akin to “an affront to public morality,” “a breakdown in customary discipline” or, perhaps, “compromising love relations.” But there are simpler and more direct ways to render this expression in English — how about “adultery,” “cheating” or “having multiple partners”?
In 1996, actor Junichi Ishida found himself embroiled in a scandal due to his illicit affair with a young model. At one point he tried to fend off the paparazzi pestering him with the following comments: “You don’t hesitate to denigrate adultery, yet the bitter sadness and sweetness of secret love are themes in works of great literature and art. They have long been a source of the highest culture.”
This comment incurred the scorn of the media, as journalists accused him of trying to justify adultery by claiming that adultery is culture. It also cost the actor many important roles, making him a pariah in the entertainment world for several years until he managed to rebound.
Today Ishida uses the phrase “Adultery is culture” as a self-mocking trope on TV. He made an odd reference to it during a demonstration last month outside the Diet building against the security bills enabling Japan’s Self-Defense Forces to more easily engage in combat overseas. During a speech on Sept. 17, he said, “War is not culture,” to thunderous applause and laughter. Odd that such a touchy subject could be used simultaneously in lighthearted jest and about a subject that is literally dead serious. Also odd considering that if one supposes that adultery is a part of literature, arts and our very culture, then surely war is too.
My point is that the joke falls flat if you take Ishida’s original comment to its logical conclusion: that because a phenomenon can be found in a novel or painting, this makes it something we should tolerate or even desire. Picasso’s “The Rape of the Sabine Women” and “Guernica” are great works of art, but that doesn’t mean we should embrace rape and war.
Be that as it may, despite the phrase above having become little more than a punch line, and for good or ill, our society continues to see adultery as an evil. Perhaps to a lesser degree, but an evil all the same.
At this point you might ask, dear reader, what all this has to do with Labor Pains. Well, in fact, many courts have been asked to answer the question of whether adultery is grounds for firing an employee.
The Osaka District Court ruled on Aug. 10, 1990, that a high school teacher, with a wife and children at home, had betrayed the high moral standards expected of his position when he became intimate with a female student. Such a dismissal may be understandable to many considering that the student was a minor when their relationship began, although the relationship apparently only became physical after she graduated.
Adultery that occurs between two employees of the same company is a different matter than “regular adultery,” in that many corporations have written into their shūgyō kisoku work rules a prohibition of any behavior that “disturbs or might disturb internal order or morality,” and violations often incur disciplinary action.
Asahikawa District Court ruled on Dec. 27, 1989, in a case involving a woman who was fired for committing adultery with a male employee who was married with children. Note that the married man was notfired, only the single woman who entered into a physical relationship with him. In fact, the company asked the man to convince her to resign. When that failed, management tried to convince her to leave. When that too failed, they issued her a pink slip, yet no slip of any color to the married male employee who actually broke his vows. (I suppose we should remember that this was the late 1980s, before equal opportunity was enshrined in law. Too early to come back to the future yet, though.)
She sued the company, Shigeki Kosetsubi, for reinstatement. The court ruled that adultery was, “except under extraordinary circumstances, deplorable behavior that was also illegal with respect to the wife.” The verdict noted, however, that the rule prohibiting “disturbing internal order or morality” can be used as grounds for disciplinary action only when there is indeed provable and specific disturbance. In other words, adultery may or may not disturb internal order and morality and, in this case, it did not. The court ordered her reinstatement and the payment of all back wages.
Naturally, intimate relationships between two people entail situations that are known directly only to the participants themselves, so many cases involve making judgments about questions of fact. Such cases include allegations of rape, sexual harassment or similar acts that are contested between the two parties. If the court decides that no rape or sexual harassment occurred, then any disciplinary action based on such an act is invalid. If the court determines such acts did take place, then the perpetrator could be in for more than simply losing their job.
For adultery to be ruled to have “disturbed internal order and morality,” it would need to involve something like multiple visits by the spouse to the workplace, creating scenes each time. Another possibility is if the company’s reputation or other intangible assets are damaged. Such details and specific damage are necessary before an employer may invoke such work-rule prohibitions.
It is rare for an employee to be disciplined for committing adultery with someone who does not also work at the company. Rarer still do courts uphold such discipline. But one such rare case was handled by Osaka District Court. A permanent instructor at Osaka Jogakuin University was fired for getting pregnant while unwed. A married man was the father.
An unwed pregnancy is “not good for a professional teacher in that it has an adverse impact on students with respect to the education policy (of the school),” the court said in its ruling in 1981. “It cannot be excused by the claim that it is simply a private matter, so the dismissal is valid.” What adverse impact on students? The court explained that the teacher had violated educational morality and greatly lowered the dignity of the school.
One of the most famous cases of dismissal due to adultery involved a married-with-kids 40-year-old tour bus driver who managed to seduce a newly hired 18-year-old bus tour guide. KM Tourism fired him based on a clearly stipulated prohibition against drivers becoming romantically involved with guides. He sued to get his job back.
Tokyo District Court ruled on May 27, 1988, that the dismissal was valid because he was married. For unknown reasons, the man did not appeal the ruling, but he sued in the same court a second time, this time for damages, claiming the first verdict was itself invalid. Tokyo District Court again ruled that the dismissal was valid, so no damages.
Next, the man appealed the second decision to the Tokyo High Court, which on Feb. 28, 1995, awarded him ¥7 million in damages for his pain and suffering — an extraordinary amount considering how paltry such awards tend to be in Japan. The court was unable to order his reinstatement, since the 1988 verdict still stood, but it did say that he had suffered an inordinate amount of public humiliation for being wrongly fired for adultery. And he had been devastated financially, even forced to borrow from a friend to pay his mortgage.
Although it took him eight years, the man was finally vindicated, at least by the courts.
In the bus driver’s case, two different court processes produced opposite results — another sign of how abstract and subjective morality and social norms can be.
This concept of social norms — shakai tsūnen — is a crucial element of Japanese law, particularly labor law. It is hard to see what social norms are at any given time or specific set of circumstances. It seems safe to say that judges are forced to make a decision that is necessarily subjective and personal, although lawyers tend to wish it were otherwise.
“Shakai tsūnen is a malleable phrase of great convenience, in that it can be interpreted in myriad ways,” says attorney Shoichi Ibuski (full disclosure, the retained lawyer of Tozen Union). “I want judges to stop using this phrase to push their idiosyncratic personal beliefs on society. They should consider the common values of the actual workplace instead.”
With the increase in women at the workplace, it seems that the opportunities for workplace romance (including adultery) are on the rise. While companies and their work rules may regard such relationships from the perspective of maintaining corporate order and morality, workers also have rights to freedom and privacy. Intrusive investigations into harmless affairs could — under certain circumstances, and in my personal opinion — constitute sexual harassment of the parties involved.

Friday, October 16, 2015

Japan: Couple in 20s file suit over 6-month remarriage ban for women

A couple in their 20s, who have a five-month-old son, have filed a suit with the Tokyo District Court against the Japanese government, challenging the constitutionality of Article 733 of the Civil Code which prohibits only women from remarrying within six months after getting a divorce.
The couple, who are from Shizuoka Prefecture, said in their suit that they were not allowed to register their marriage in July because it was only two months after the woman divorced her previous husband, Sankei Shimbun reported. Furthermore, the couple have not been allowed to register their son’s birth.
According to the plaintiffs, the two met in 2013 when the woman was living separately from her ex-husband. Her son was born in May which was right before she was legally granted the divorce. In such cases, the civil law still presumes the child’s father to be the woman’s ex-husband.
The plaintiffs are demanding 3 million yen in compensation for not being able to legally marry and not be able to register the boy as their child, Sankei reported.
The topic has been a contentious one for many years and the Supreme Court will hear oral arguments challenging the constitutionality of Article 733 as well as Article 750 which mandates that married couples choose one surname.
The issue has been in the spotlight since an Okayama woman, who is in her 20s, filed a suit with the Okayama District Court and high court two years ago, challenging the constitutionality of the two articles. However, both courts deemed that the two laws were not in violation of the constitution, ruling that the legislation helped to prevent paternity disputes and therefore had a reasonable aim. As such, the courts declared that an examination of its constitutionality was not necessary.
The Supreme Court’s Grand Bench of all 15 judges will hear the case, beginning Nov 4. It will be the first time the Supreme Court has agreed to pass judgement on such issues.
The plaintiff, who lives in Soja, Okayama Prefecture, was divorced in March 2008 and was forced to wait until October of the same year to marry her current husband. She sued for 1.65 million yen in damages, arguing the Civil Code is discriminatory because the same articles do not apply to men.
One exception to the rule is when a woman is pregnant before the divorce. Under this condition, she can remarry after the birth of a child. The law was intended to reduce the occurrence of paternity disputes, but has been criticized for restricting the behavior of women and not men.
The lawsuit was filed after the woman had a daughter with her current husband but the Soja local government did not recognize the child as being the offspring of her current husband because she had her child within 300 days of getting divorced.
According to Article 772 of the Civil Code, the child was still considered the legitimate offspring of the ex-husband who allegedly abused her. As a result, the new couple were unable to register their daughter’s birth.
Regarding surnames, there are provisions in the Civil Code that state a married couple must use a single surname—either the husband’s or the wife’s. In 1996, a legislative council of the Ministry of Justice proposed creating a system in which married women or men can have the choice to keep their own surnames, but no amendments were ever made to the Civil Code.

Tuesday, October 13, 2015

Publication Announced of 2015 Edition of International Family Law Practice by Jeremy D. Morley

The 2015 edition of my treatise entitled International Family Law Practice has now been published.

From Chapter One:

This book is designed to fill a void that the author discovered when he was embroiled in his own international divorce case a couple of dozen years ago. Seeking counsel on two continents as to divorce and child custody matters that crossed international boundaries, he discovered that family lawyers were generally unable or unwilling to provide “big picture””” advice as to whether an action for divorce and custody could or should be brought in one jurisdiction or in another and as to the pros and cons of the various possibilities. Nor were such matters discussed in any practical sense in the legal literature, whether in textbooks or legal periodicals.

          Once the author had solved his personal dilemma by undertaking his own voluminous research and by trial and error, he realized that he had stumbled across a niche area of law that was crying out for attention. What made the discovery especially attractive were the facts that international clients, as well as their local counsel, were hungry for informed, reliable, and practical advice concerning these issues; that the volume of international family law cases was obviously set for major growth as international relationships proliferated in a shrinking world; and that the issues raised by such cases were complex, puzzling, and fabulously intriguing. All in all, it proved to be a perfect way to “make lemonade from lemons.”

          The purpose of this book is to share with fellow lawyers in the United States the knowledge that the author has gained by working exclusively in international family law for many years. The intention is to provide an extremely practical approach to handling international family law matters in collaboration with family lawyers in local and distant jurisdictions.

          The book focuses on two main areas. The first is international marriage and divorce. Chapter 2 deals with the validity issues in the United States of foreign marriages. Chapter 3 deals with foreign prenuptial and postnuptial agreements and with the issue of how to draft prenuptial agreements when there is a foreign element or the prospect of future international relocation. Chapter 4 covers the issue of international divorce planning while Chapter 5 covers the issue of the recognition of foreign country divorces.

          The second area of focus is that of children. Chapter 6 covers international child support issues. Chapter 7 deals with international child custody, while Chapter 8 covers international relocation with children. The final three chapters deal with international child abduction, with Chapter 9 covering the Hague Abduction Convention, Chapter 10 dealing with non-Hague cases and Chapter 11 dealing with the prevention of international child abduction.
To purchase:

Monday, October 05, 2015

Bond Unreliable to Deter Potential International Child Abduction

Jeremy D. Morley
Courts sometimes require that a parent should be permitted to take a child for an international visit, despite the objections of the other parent, if the taking parent posts a financial bond. However, such a requirement often provides a false sense of security.
Last year, a Florida appeal court sensibly overturned a lower court’s decision that had allowed the visit of two children to Jamaica to see their father conditioned primarily on his filing a $50,000 bond.
The father had been deported to Jamaica upon convictions for battery on the mother and had repeatedly threatened to kidnap the children.
The appeal court stated that the trial court’s concern about a potential abduction was well founded, but ruled that “its decision to address that concern through a monetary bond is not. Given the fact that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond…. Nor would the evidence support a finding that the bond, standing alone, could deter a potential kidnapping given the father's demonstrated disregard for the law and repeated threats to take the children from the mother.” Matura v. Griffith, 135 So.3d 377, 214 WL 338750 (Fla.App. 5 Dist.,2014).
We have repeatedly warned that, since children are priceless, bonds are never “painful” enough to overcome the decision that parental abductors often make that – at any and all cost -- their child should be kept away from the other parent and with their family in their country of origin.
While bonds may provide a litigation war chest they will not even provide much value in that regard unless the foreign legal system is likely to take action, as the Florida court usefully recognized.

Tuesday, September 29, 2015

International Child Relocation in New York Courts

                                                         Jeremy D. Morley
Thus far there have been two reported appellate cases in 2015 in New York on international child relocation.
In Forrestel v. Forrestel, 125 A.D.3d 1299, 3 N.Y.S.3d 483 (4th Dept.,2015) a father successfully opposed the mother’s application to relocate to the Netherlands with the parties' children. On appeal, the Fourth Department held that the record adequately supported the lower court’s determination that the proposed relocation would adversely affect the children's relationship with the father because of the distance between Erie County and the Netherlands. The case was not a true “Tropea” case (that being the leading case on child relocation in New York) since it was part of an initial custody determination, rather than a request for relief after such a determination.
In Lecaros v. Lecaros,127 A.D.3d 1037, 7 N.Y.S.3d 490 (2d Dept. 2015), a mother won international relocation to London.  She established that the relocation to London was in the children’s best interests. She demonstrated that the move was economically necessary, that the children’s lives would be enhanced emotionally and educationally by the relocation, that the move would not have a negative impact on the quality of the children’s future contact with the father, and that it was feasible to preserve the relationship between the father and the children through a suitable visitation schedule. Although the mother’s relocation would have an impact on the father’s ability to spend time with the children, a liberal visitation schedule, including extended visits during the summer and school vacations, would allow for the continuation of a meaningful relationship between the father and the children. Additionally, the Supreme Court’s determination denying that branch of the father’s motion which was to enjoin the relocation of the children to London was in accordance with both the children’s stated preference and the position of the attorney for the children.
We helped create the winning strategies for our clients in both cases.

Monday, September 28, 2015

International Family Law: Comparing Divorce Jurisdictions

Procedure May Trump Substance 

Jeremy D. Morley  

When comparing possible jurisdictions for international family law cases, it is frequently important to focus on procedural matters and not simply to compare the rules and practices concerning the division of assets, maintenance and other substantive issues. For example, while it is important to know how different courts will determine which assets are to be divided upon a divorce and how they will determine the appropriate proportions, it is often even more important to compare the discovery techniques of the jurisdictions being compared and the disclosure obligations imposed upon the parties in the various jurisdictions. Case in point: California is at one extreme in requiring real disclosure, while Austria, Japan and many other civil law countries are at the other extreme in requiring very little disclosure.

These distinctions became apparent in a matter in which we were asked to compare possible jurisdictions for a divorce case. (The facts have been changed for confidentiality purposes). We determined that the client could bring suit for divorce as well as for the consequential financial issues in either California or Austria. We also concluded (with local counsel) that the division of assets would yield similar results in both places and that, while child support might be better in one jurisdiction, it would be offset by better spousal maintenance in the other.

The challenge was that our client believes that the other spouse is hiding assets and that it will, therefore, be necessary to conduct disclosure in order to ensure that the hidden assets are brought before the court. Accordingly, we compared the disclosure rules, both as to how the rules appear in the statutory language and legal texts, and also as to how they are applied in practice.

In civil law jurisdictions, such as some European countries, the practice is for the parties to be required to present their own evidence to the court, but there are generally no procedures for a party to engage in self-directed discovery. All that a party can do is ask a judge to sort out the evidence that each side presents and hope that the judge will decide to call a witness. A litigant is not expected to disclose all of his or her assets, and there are no penalties for failing to do so. Litigants are widely expected to present evidence that supports only their position, just as their witnesses are expected to provide only information that presents their position in a positive light. It falls to the judges to sort the evidence and the testimony. They determine what evidence is germane to the proceedings and, in many civil law countries, they can call their own independent witnesses.

California Law

The contrast with American states, but most especially with California, could not be more extreme. Section 721 of California's Family Code requires each spouse to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets and to provide equal access to information. This duty persists until each asset has been divided by the trial court. Section 2100(c) mandates full disclosure of all assets and liabilities of each party in the early stages of a divorce proceeding, regardless of whether a party believes them to be community or separate property. Furthermore, the information must be updated when changes occur. The parties are required to exchange preliminary and final declarations of disclosure (Family Code, Sec. 2103). In order to deter nondisclosure, Section 2107(c) of the Code requires the trial court impose monetary sanctions if a party fails to comply with disclosure obligations. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the non-complying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

In In re Marriage of Feldman, 153 Cal.App.4th 1470, 64 Cal.Rptr.3d 29 (Cal.App. Dist.4 July 20, 2007), the California courts made it clear that, not only must a spouse respond fully to requests by the other spouse for documents and information about assets, but it is not necessary for a spouse to take the initiative in seeking such information.

The Fourth District Court of Appeal affirmed a trial court's order that a husband in a dissolution proceeding had to pay $390,000 in sanctions and attorney's fees to his wife because he did not disclose financial information. The parties had been married for 34 years, during which time the husband had formed many companies. He declared that his assets were worth over $50 million. Throughout the proceeding, he provided updates to his Schedule of Assets and

Debts, and responded to discovery demands from his wife's attorney. However, it was shown that he did not disclose several financial transactions, including a residence, a bond, a 401(k) account and several privately held companies.

The sanctions were ordered, even though there was no economic damage to the wife, who had learned of the non-disclosed assets before trial and had received her share of the assets. The court held that the wife need not prove damage because the sanctions were designed to deter repetition of non-disclosure and to encourage disclosure. The court stated that the husband had the duty to disclose material facts to the wife in writing; to supplement and augment the discovery continually; and to disclose material data immediately and before a new project.

Other Common Law Jurisdictions

The English courts require full disclosure and brook no nonsense when it comes to inferring nondisclosure. Similar principles apply in countries such as Australia, Canada and Singapore.

European Civil Law Countries

The contrast with civil law in Europe is dramatic. In California, the spouse with knowledge of personal financial matters has the affirmative and continuing duty of making disclosure and is at significant risk if the disclosure is insufficient. In civil law countries, the spouse with such knowledge has little or no obligation to disclose anything and may play "hide and seek" with assets in a "game" in which the asset-holding spouse can do the "hiding" and the other spouse has few methods of doing the "seeking."

Thus, in Austria, neither the General Austrian Civil Code nor the Austrian Marriage Act contains any explicit provisions obliging the spouses to provide each other or the competent authority with information on their income and assets. If a spouse demands a certain amount, the other spouse needs to show that his or her assets are not as claimed, but there is little or no way to force a thorough tracing of assets. In Germany, Section 1580 of the Civil Code requires divorced spouses to provide information to each other as to their income and assets, and the Code contains mechanisms to compel the delivery of such declarations, but there is little that a party can do in advance of trial to probe such declarations or to search for suspected assets.

In Spain, Article 774(2) of the Civil Proceedings Act authorizes the courts -- but not the parties themselves -- to request financial information that they consider necessary either from the spouses themselves or from third parties, especially for the purpose of deciding on the economic effects of divorce. If the spouses disagree on financial issues and the respondent refuses to divulge his or her assets or hinders efforts to obtain such information, the courts may resort to indirect proof or proof by circumstantial evidence in order to resolve such issues. This means that the power of an aggrieved plaintiff is extremely limited and he or she must hope that the judge is extremely proactive. Colleagues in Spain note that it is quite rare to find a proactive judge.

Therefore, in this pending matter, we concluded that the fact that California law imposes such a heavy responsibility on the other spouse to disclose assets, and the court has the power -- which it exercises strongly -- to punish a failure to make such disclosure, tilted the balance strongly in favor of bringing suit in California rather than in Austria.

There is virtually no discovery in Japan. The court or a party may make a “request for clarification,” requesting particular documents or answers to particular questions, but such requests are generally insignificant. In practice, judges merely urge the parties to submit relevant documents voluntarily.
Likewise, discovery is generally unavailable in China and Korea. A spouse who does not have proof of the assets held by the other spouse is generally unable to obtain any division of any such assets. 


It is critical when comparing divorce jurisdictions to look beyond the letter of the law and to examine the actual ways in which divorce cases are handled in the respective jurisdictions in the real world. If your client is the party looking for assets, you must pay careful attention to the discovery rules in the potential jurisdictions and especially to the ways in which those rules are likely to be implemented in practice. 

Friday, September 25, 2015

Book Review: The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers

The Hague Abduction Convention:
Practical Issues and Procedures for Family Lawyers
by Jeremy D. Morley
404 pp.; $149
ABA Publishing, 2012
321 N. Clark St., Chicago, IL 60610-4714
(800) 285-2221;
Reviewed by Stephen A. Braunlich
Stephen A. Braunlich is a U.S. Air Force Judge Advocate stationed at Malmstrom Air Force Base in Montana, where he serves as Chief of Administrative Discharges—(757) 784-5532, The views expressed are his own and are not endorsed by the U.S. Air Force or the Department of Defense.
A family law attorney—and even a district judge—may go his or her entire career having never dealt with the issue of international child abduction. Should the issue ever arise, there would be no better book to have on a law library shelf than Jeremy Morley’s The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. Morley, an international family law attorney working in New York, has applied his experience with the Hague Convention on the Civil Aspects of International Child Abduction (Convention) to write a trenchant and valuable guide useful to advocates and adjudicators.
The Convention deals with a narrow question of law: when must a child who was abducted from a country in which a person other than the abductor had a right of custody be returned to that country? This is a narrow question, and it is one that could have incredible implications. For example, many child abductions frequently arise from mothers fleeing domestic violence. In other cases, custodial parents in international relationships find the relationship does not work and one parent then tries to find a way home with his or her child or children. The children caught in these situations may be subjected to psychological and even physical harm. Therefore, any attorney dealing with an international child abduction will want to make sure he or she has a firm grasp of the applicable law. Morley gives them that grasp.
The book’s structure is sensible and utilitarian. It opens with the Convention’s history, policy rationales, and processes (at a very high level of generality). Morley explains the requirements a petitioner must meet to make a claim under the Convention: that the petitioner has custody rights and that the child was taken from a country of habitual residence. Having explained the basis for petitions under the Convention, Morley next turns to common shields to defend against petitions. The book’s substantive sections close by considering situations in which a habitual residence is not a signatory to the Convention or mere international travel may turn into international child abduction. Several appendixes containing the Convention, enabling legislation, and the official commentary follow the substantive sections.
The strongest selling point of the book is the author’s ability to guide readers through American and international case law for the benefit of both petitioners and respondents. For any of the issues in which there is a divergence of law, the reader finds the most frequently cited cases in favor of and opposing each of the viewpoints. Where the law is clear but fact-driven, Morley provides citations to cases that draw out key analogous facts for the advocate representing the petitioner or respondent in an abduction case. In doing so, he eases the path forward for attorneys unfamiliar with this area of law.
The book’s target audience is attorneys litigating international child abduction cases; however, it also is a worthwhile read for anyone advising immigrants, prospective expatriates, and service members. For example, a client in these groups with children may have orders to make a permanent change of station overseas or may decide to move home. Proactive attorneys may preempt Convention litigation by ensuring that parenting plans for these clients include consent to bring a child overseas or, in the alternative, expressly withholding that consent. At the very least, this will build a record for later petitions under the Convention.
If there is one criticism that can be lodged against the publication it is that the accompanying CD adds little if any value, and simply may drive up the retail cost of the book. The CD merely provides electronic access to the seven appendixes in PDF format. The information otherwise can be found online through a simple electronic search or it should be familiar to a family law practitioner (as in the case of the Uniform Child Custody Jurisdiction Act).
Morley has provided an excellent resource that is especially beneficial for family law attorneys. It will be a tool they turn to either to find guidance for that rare international child abduction case or to find guidance for counseling prevention of an abduction.

Thursday, September 24, 2015

Uganda Divorce & Bride Price

Jeremy Morley
The Supreme Court of Uganda has refused to declare that the practice of exchanging money, cows, or other goods for a bride is unconstitutional in Uganda, notwithstanding the claim that it reduces the women to mere properties.
However, the Court has ruled that it is unconstitutional for a man to have the right to claim a refund from his spouse's family if the marriage ends. Husbands often expect the dowry to be returned in cases of dissolution of the marriage.
The constitutional challenge to the practice was started in part by MIFUMI, a Ugandan organization combating domestic violence and the bride price, with the support of other women's rights organizations.
While the practice itself was not struck down, MIFUMI said it hoped that at least the ban on refunds of bride prices would help women leave abusive relationships.
A bride price is the custom of a groom paying a woman's family with money, cows, land or other material goods in exchange for a wife. The tradition originated as an official recognition of a marriage and as a gift for the bride's family. It was also believed to add value to the woman and protect her from abuse in her new household. The practice remains common in Uganda, particularly in rural communities but also in urban centers. The modern bride price still follows the same principal of exchange, but families are now often asked to sign contracts with the groom as proof of payment of the bride price.
Prior to this decision, if a marriage failed, men could go back to the woman’s family home to demand a return of their property. But the Supreme Court in Kampala has ruled, in a majority judgment of 6:1, that the traditional custom and practice of demanding a refund of the bride price if a marriage breaks down is unconstitutional and “dehumanising to women."
“The return of [the] bride price connotes that the woman in marriage was some sort of loan. But even in sale, the cliche is that goods once sold cannot be returned or goods once used cannot be refunded. If that cannot be done in respect to common goods like cows, why should it be applied to a woman in marriage?” asked Justice Bart Katureebe.
Across sub-Saharan Africa – from Malawi, to Zambia to Kenya and South Africa – the practice of paying a bride price is quite common. In Kenyan pastoral communities, it is paid in the form of cattle and has been blamed for rampant cattle rustling.
The practice is particularly entrenched among some Ugandan ethnic groups, especially in western, east and northern areas of the country. The negotiations over payment take place between male representatives of the two families – women are not allowed to take part.
Critics say paying a bride price can trap women in abusive marriages and encourages early marriage.
According to United Nations figures, an estimated 40% of girls in Uganda are married before they are 18, with eastern and northern Uganda registering the highest number of child marriages. A major reason for the high number is understood to be because parents, particularly poorer parents, want to get the bride price.
In June last year, the eastern Uganda district of Butaleja passed its own law making it illegal to demand refund of the bride price, or to deny a woman burial on account of non-payment of the bride price by the man. The ruling was initiated by MIFUMI.

Wednesday, September 23, 2015

Malaysia and International Child Abduction

by Jeremy D. Morley

Malaysia is not a party to the Hague Abduction Convention. Malaysia has refused to adopt the treaty, on the ground that it would purportedly contradict Shariah law, since that law bases child custody decisions to a substantial extent on religious, age and gender factors.  Given that the Convention has now been signed by more than 90 countries, including some Islamic countries, the failure of a country to join the community of nations in signing and implementing the treaty is a red flag that the country is unlikely to return abducted children promptly, if at all. Further, there are no international or bilateral treaties in force between Malaysia and the United States dealing with international parental child abduction.
In Malaysia child custody cases between Muslims are conducted before Shariah courts. Other cases are conducted before civil courts. However, even in the Malaysian civil courts foreign custody orders are not binding and such courts must review the best interests of the child in any custody case in which a foreign custody order has already been issued. The leading case is Mahabir Prasad v Mahabir Prasad, [1981] 2 MLJ 326, in which the Federal Court ruled that the trial court had been committed error by applying the terms of an Indian custody order without conducting a full evaluation of the children’s best interests The Shariah courts apply Shariah law in custody cases and foreign non-religious court orders have no role in that process.
The sharp split between the two judicial systems, the Shariah rules that favor Muslims, and uncertain rules and practices as to whether a child may be unilaterally converted to Islam, have provided non-Muslim fathers in Malaysia with a devious ploy to procure sole custody of their children. They convert to Islam, then purport to convert their children to Islam and then petition the Shariah courts for sole custody. Article 121(1A) of the Malaysian Federal Constitution  provides that the Civil High Courts in Malaysia have no jurisdiction in respect of any matter that falls within the jurisdiction of the Shariah Courts. This practice has created enormous controversies in Malaysia which have still not been fully resolved.
The case of Indira Gandhi v Mohd Ridzuan Abdullah, concerning a Hindu family in Malaysia, has been pending for at least five years In that case, the father converted himself and his children to Islam, unilaterally removed the children from the family home, and in 2009 obtained an order of sole custody in his favor from a Shariah court. The mother went to the civil court and ultimately, in 2010, obtained an order giving custody to her. The father refused to follow the civil order. Litigation continued and in 2013 the Malaysian High Court at Ipoh declared the unilateral conversion of a child to be unconstitutional. In the same month, however, the Islamic Affairs Department in Seremban, Malaysia declared that the Shariah court had acted properly in granting sole custody to a father who had converted himself and his two Hindu children secretly to Islam. The Court of Appeal then set aside a mandamus order issued by the Ipoh High Court compelling the inspector-general of police to arrest the father, and for him to find and return the child to her mother. The mother’s appeal to the Federal Court is now pending.

Thursday, September 17, 2015

Prenuptial Agreements in Japan

Jeremy Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.

Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes.

-A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters.

-Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.

There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract.

Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law.

In Japan, Article 26 of the Act on the General Rules of Application of Laws ( authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.”

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse.

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy.

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

-Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

-Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

-Should the agreement contain a choice of court clause as well as a choice of law clause?

-Should the agreement cover spousal maintenance as well as the division of assets?

-Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?