Thursday, May 21, 2015

Forced Prenuptial Agreements: Australian Cases

Jeremy D. Morley

Courts around the world generally reserve the right to invalidate prenuptial agreements that were entered into under duress.

The meaning of “duress” can be extremely hard to determine in specific cases.

Can there be duress when a young impecunious foreign woman moves to another country to marry a rich man who then demands that she sign a “take it or leave it” prenuptial agreement?

Yes, says an Australian court in a very recent decision in Brisbane, Australia.

Can there be duress when the man gives a prenuptial agreement to his wife-to-be just three days before the wedding, after all the wedding arrangement are made, that their relationship will end if she does not sign the one-sided agreement forthwith?

"Yes" said another Australian court last year.

The specific facts of the case of the most recent included the following:

The woman knew that there would be no wedding if she didn’t sign the agreement. The husband’s position about that was plain.  

The husband did not negotiate on the terms of the agreement as to matters relating to property adjustment or spousal maintenance. He did not offer to negotiate. He did not create any opportunities to negotiate. The agreement, as it was, was to be signed or there would be no wedding and no further relationship. Indeed, the judge stated that, “I am satisfied that when [the man] said there would be no wedding, that meant that the relationship would be at an end.”

The applicant wanted a wedding. She loved the man, and wanted a child with him. She had changed her life to be with him.  

She was in Australia only in furtherance of their relationship. She had left behind her life and minimal possessions in her own country. She brought no assets of substance to the relationship. If the relationship ended, she would have nothing. No job, no visa, no home, no place, no community. The consequences of the relationship being at an end would have significant and serious consequences to her. She would not be entitled to remain in Australia and she had nothing to return to anywhere else in the world.

Every bargaining chip and every power was in the man’s hands. Either the document, as it was, was signed, or the relationship was at an end.

The woman consulted a lawyer but he told her, before signing the prenup: “It is the worst contract I have ever seen. Don’t sign.’’

The man knew that the woman wanted to marry him. For her to do that, she needed to sign the document. He knew that she would do that. He didn’t need to open up negotiations. He didn’t need to consider offering something different, or more favorable to her. If she wanted to marry him, which he knew her to want, she must sign. That situation was something much more than inequality of financial position. The woman’s powerlessness arose not only from her lack of financial equality, but also from her lack of permanent status in Australia at the time, her reliance on the man for all things, her emotional connectedness to their relationship and the prospect of motherhood, her emotional preparation for marriage, and the publicness of her upcoming marriage.

In those circumstances, the wife signed the first agreement under duress. It was “duress borne of inequality of bargaining power where there was no outcome available to her that was fair or reasonable.”

In another case, an Australian court ruled in 2014 that there had been duress when a man asked his bride-to-be to sign an “unfair” pre-nuptial agreement just three days before their wedding. The groom told the bride that the wedding would be off if she did not sign, although they had been together for six years and engaged for 11 months.

All the arrangements were made, all the guests had been invited, and the wedding reception had been paid for by the wife’s parents. The wife was in a position of “special disadvantage”. If she did not sign the prenup not only would the wedding be cancelled but the judge found that “the likely result of such a traumatic event would be that the wife’s relationship with the husband would be over. This after six years and an 11 month engagement.

The judge ruled that:

“The wife says she considered that she had no choice. She was clearly in a position of special disadvantage and the husband knew so. The prenuptial  agreement was not to the wife’s advantage. It gave her no rights at all in the future to any of the husband’s property. She knew that it was to her disadvantage because her lawyer told her so. Nevertheless, she signed it because she considered she had no choice.

The husband knew that the wife was in a position of special disadvantage. The only inference from his late production of a completed and signed agreement is that he wanted to give the wife no choice and he knew that if it was presented to her days away from the wedding she would have no choice. I infer that the husband considered there was no risk that the wife would refuse to sign the binding financial agreement and cancel the wedding.
The wife’s consent to the agreement was not independent and voluntary because it was overborne thus she was subject to duress and undue influence by the husband.”

Wednesday, May 20, 2015

Latest U.S. Hague Abduction Convention Compliance Report

The U.S. Department of State Office of Children’s Issues has issued its annual report on International Parental Child Abduction which covers compliance with the Hague Convention on the Civil Aspects of International Child Abduction (the reporting cycle for statistics is January 1, 2014 through December 31, 2014). 

             Some notable points are as follows:

            -In 2014, 781 abduction and access cases were resolved, 273 involving Mexico, 33 cases involving Canada, 25 cases involving the United Kingdom, 25 cases involving Germany, and the remaining 425 cases involving various countries.  The term “Resolved Cases” generally refers to matters where a child is returned to his or her place of habitual residence via the Hague Abduction Convention, the left-behind parent reaches an voluntary agreement with the taking parent, the left-behind parent submits a written request to withdraw their application, or when the left-behind parent cannot be located/contacted for a period of one year.

            -A total of 66 countries had 5 or more pending abduction cases involving the United States in some capacity during 2014.  The report notes a number of recommendations that the U.S. Central Authority (USCA) suggests to improve resolutions to cases.  The USCA most often recommended the promotion of public diplomacy and outreach activities through local embassies, consulate public affairs units, and consular sections to assist with resolution. 

            -In 2014, a total of 374 abducted children were returned to the United States from around the world.  571 International Parental Child Abduction cases were resolved in all countries and areas without the child’s return to the United States during the same reporting year (this total includes countries who are treaty partners with the United States under the Convention, bilateral procedures countries, countries that have other procedures for resolving International Parental Child Abductions, and countries that have no protocol for resolving International Parental Child Abductions). 

            -On April 1, 2014, the Convention entered into force between the United States and Japan.  However, there are still more than 50 non-Convention cases of abduction to Japan, all of which predate Japan’s ratification of the Convention.  As of December 31, 2014, U.S. left-behind parents have filed 31 Convention access applications.  None have resulted in meaningful parental access or the return of a child to date. 

            -A “pattern of non-compliance” is defined as the persistent failure of a country to implement and abide by provisions of the Convention, the failure of a non-Convention country to abide by bilateral procedures between such a country and the U.S., or of a non-Convention country to work with the USCA to resolve abduction cases. Countries demonstrating patterns of non-compliance in 2014 include: Argentina, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Guatemala, Honduras, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, Peru, Poland, Romania, Saudi Arabia, Slovakia, The Bahamas, and Tunisia

                 -The USCA reported on 18 countries where applications for return or access had remained open for more than one year after the date of filing. They are: Argentina (four cases), Brazil (fourteen cases), Canada (one case), Colombia (one case), Costa Rica (two cases), Dominican Republic (two cases), Ecuador (one case), France (one case) Honduras (one case), Israel (one case), Italy (two cases), Mexico (fifty eight cases), Peru (nine cases), Poland (one case), The Bahamas (two cases), Turkey (three cases), Ukraine (one case), and The United Kingdom (one case).
       The full report can be found here:

Monday, May 18, 2015

Hague Abduction Case Dismissed: Child Taken from Greece to New York

Jeremy D. Morley

The United States District Court for the Eastern District of New York (Judge Pamela Chen) in Adamis v. Lampropoulou (decision dated May 14, 2015) dismissed the petition brought under the Hague Abduction Convention by the Greek father of a 12 year old boy who was habitually resident in Greece and was taken to and retained in New York by the respondent mother. My office represented the respondent mother.
This case raised difficult issues of consent and of the age and maturity exception, which ultimately the judge sensibly determined on the basis of the credibility of the parties and on a lengthy interview with the child.
The Court found the child to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent; that his reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in his areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he was very close; and (4) more and better friendships; and that the sincerity and rationality of his motivations and desires was corroborated by testimony of his family members.
The Court also found that the credible evidence established, by a preponderance, that, the petitioner had consented to the child moving with his mother and sister from Greece to the United States. The evidence included the testimony of the mother, the child and the child’s adult half-sister “as corroborated by” an audio recording of the petitioner stating that he had given permission for them to move.
One legal issue that arose was that of the burden of proof of consent. The International Child Abduction Remedies Act (“ICARA”) provides, 42 U.S.C. 11603(e)(1), that the petitioner “shall establish by a preponderance of the evidence … that the child has been wrongfully removed or retained within the meaning of the Convention.” This appears to place the burden of proof of the lack of consent to a removal on the petitioner.
On the other hand, Article 13 of the Convention provides that a child need not be returned if the petitioner “had consented to or subsequently acquiesced in the removal or retention” and ICARA provides (42 U.S.C. 11603(e)(2)), that “a respondent who opposes the return of the child has the burden of establishing … (B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.
Judge Chen ruled on this issue that that the burden of proof of consent lays upon a respondent. She explained that, “As other courts have recognized, there is an inherent tension between deeming, for purposes of Petitioner's prima facie case, that D.A.'s removal from Greece was "wrongful," and then determining that Petitioner ultimately consented to D.A.'s move. See, e.g., In re Kim, 404 F.Supp.2d 495, 515 n.38 (S.D.N.Y. 2005) (citing Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 131 (P.B. Cartered 1999) ("`[I]f a custodian consents to a removal or retention, can those acts be described as wrongful?'")). The Court agrees with the In re Kim court in viewing this issue as "one of burden" and consent as a defense once a prima facie case of wrongful removal is established. Id.

Thursday, May 14, 2015

Lifestyle Clauses in International Prenuptial Agreements

Jeremy D. Morley
Clients sometimes propose all kinds of provisions for prenuptial agreements that are intended to control their beloved’s future activities. These so-called “lifestyle” terms may state that they’ll have some sex, lots of sex, no sex or kinky sex. They might give a “bonus” for losing weight, staying faithful, or being nice to a mother-in-law or they could include a penalty for adultery, or for not doing the dishes.
Such terms in U.S. prenuptial agreements might very well not be upheld. In prenups for international people they might also create danger.
Merely by way of example, lifestyle provisions are probably invalid in Australia, in most but perhaps not all Canadian provinces, in New Zealand, and probably in the civil countries of Europe and South America.
And in international prenuptial agreement situations it is not merely a matter of ensuring that a chosen law would likely uphold such a provision. These issues are generally considered to be matters of public policy, such that even if a lifestyle clause could pass muster under the law that the parties choose to govern their agreement, it would be necessary to consider whether the public policy of the forum state would be violated by such a term.
Lifestyle clauses must always be accompanied by provisions that the invalidity of one term should not invalidate the entire agreement.
A danger that arises from a lifestyle clause is that it might be indicative of extreme one-sidedness, and that it would therefore provide substantial support for a subsequent claim that the agreement is unfair or unconscionable or was involuntarily entered into.
The place where lifestyle clauses seem to be most sought-after is California, where movie stars want control. However California has clearly ruled that clauses that penalize a spouse’s drug-taking or sexual infidelity will not be enforced.
When parties are contemplating a prenuptial agreement that might need to be enforced in foreign jurisdictions, lifestyle terms should not be included unless their potential reception in such jurisdictions is first carefully researched, and the impact of a provision that the balance of an agreement will survive the invalidity of one term is also considered.
All too often the international enforceability of prenuptial agreements is not adequately considered by clients and family lawyers.

Monday, May 04, 2015


Jeremy D. Morley
In the case of Ferrari v. Romania, the European Court of Human Rights (Third Section), (Application no. 1714/10) has ruled (judgment dated 28 April 2015) that Romania violated Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by failing to resolve a Hague Abduction Convention case expeditiously. Unfortunately, although it was apparent that the thrust of the problem was that the Court of Appeal misapplied the Hague Abduction Convention, the European Court focused on delays in the Romanian process more than on the Romanian appeal court’s obvious refusal to interpret the Convention correctly.
The case concerned a child who was habitually resident in Argentina. His parents agreed that he would spend a few months with is Romanian mother in Romania before returning home to Argentina. The mother refused to return the child and the father commenced his Hague case in Romania in 2007 (!).
The request for return of the child was examined by two ordinary courts which agreed, based on the evidence in the file, that the child was unlawfully retained in Romania and consequently ordered his return to his habitual residence in Argentina.
These decisions were nevertheless quashed in early 2009 by means of an extraordinary appeal lodged by the mother.
The Romanian Court of Appeal considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child’s best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child.
The case in the European Court was commenced in December 2009. Because of extraordinary backlogs in that Court, the decision was not rendered until a few days ago -- more than five years later, and resulted in a mere fine against Romania.
The Court noted that such arguments normally pertain to the merits of a case and “reiterates that quashing a final and binding decision for the mere reason that there are different views as to the interpretation of the evidence adduced is not justified and infringes the applicant’s right to a fair hearing.”
In the present case, the county court had examined the allegations that the applicant was unfit to take care of the child and had dismissed them; in this context, the re‑examination of the same issue, albeit supported by other arguments (the applicant’s travels) did not seem compatible with the criteria set out by the European Court in its case-law.
Furthermore, in its final ruling after the quashing of the return orders, the Court of Appeal established that the child had not been wrongfully brought to Romania as both parents consented to the trip. It nevertheless failed to examine whether the retention beyond what was agreed upon initially, met the requirements of the Hague Convention.
Moreover it appeared that the main reason that founded the new final decision was that the father was unable to take care of the child due to his repeated travels.
The European Court stated (weakly) that it was not convinced that the Romanian Court of Appeal’s arguments “are relevant to the scope of the Hague Convention proceedings and, even less so that they are sufficient for reversing the return order.”
The Court “reiterates that the domestic courts are better fit to examine the circumstances of the case before them … It therefore can accept that the passage of time brought about a change in the child’s situation which triggered the application of Article 12 of the Hague Convention. It remains nevertheless to be ascertained whether this change was caused or permitted by the authorities, in particular, by the overall length of the proceedings and the authorities’ attitude towards enforcement. It reiterates that effective respect for family life requires that the future relations between parents and children are not determined by the mere effluxion of time.”
In particular, the Court noted that it took the domestic courts thirteen months to decide on the matter. It stated that it had previously considered similar periods to be excessively long, in particular given the requirement of expedition which lies at the core of the Hague Convention procedure (see, in particular Monory, cited above, § 82 – 12 months; Karrer, cited above, § 54 – 11 months; but also, conversely, Strömblad, cited above, § 93 – less than one year).
The Court “reiterates that the domestic authorities are under an obligation to process return applications expeditiously, including on appeal.”
Furthermore, the Court noted that, although the return order issued by the lower court in Romania in July 2008 was final and therefore immediately enforceable, the authorities did not commence enforcement proceeding until December 2008, and that there was no information in the case as to what actions the bailiff took, except for engaging the mother in discussions and recording her refusal to comply with the return order.
This situation “raises at least questions as to whether the procedural framework in place allowed the applicant to pursue his rights effectively.”
The foregoing considerations “are sufficient to enable the Court to conclude that in not giving sufficient reasons for the non-return order, in allowing for the procedure to last for thirteen months and in protracting the enforcement proceedings, the authorities failed to facilitate the expeditious and efficient conduct of the return proceedings. In sum, the applicant did not receive effective protection of his right to respect for his family life. There has accordingly been a violation of Article 8 of the Convention.”

Friday, May 01, 2015

English Suspicion of Prenuptial Agreements

Jeremy D. Morley

The legal status of prenuptial agreements in England remains far from clear.
In the leading case, Radmacher v. Granatino, the U.K. Supreme Court in 2010 upheld the terms of a German marriage contract but it very carefully scrutinized the terms and the consequences of the agreement to determine whether or not they comported with the principle of “fairness.”  

Baroness Hale, the deputy president of the Supreme Court and the senior judge on family law cases in England who has almost single-handedly changed the English law on the division of divorcing spouses’ assets, issued a dissenting judgment in the Radmacher case.
Now, in a newspaper interview just a few days ago, Baroness Hale is reported to have stated as follows:

“I am very suspicious of prenuptial agreements” as they are designed “almost always to give someone less than they would otherwise be entitled to.”
In her dissent in Radmacher, the judge stated as follows:

 “Marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state. Nowadays there is considerable freedom and flexibility within the marital package but there is an irreducible minimum. This includes a couple’s mutual duty to support one another and their children. We have now arrived at a position where the differing roles which either may adopt within the relationship are entitled to equal esteem. The question for us is how far individual couples should be free to rewrite that essential feature of the marital relationship as they choose.
Radmacher v. Granatino, [2010] UKSC 42, Para. 132 (emphasis added).

The U.K. Law Commission has recommended legislation that would introduce “qualifying nuptial agreements” as enforceable contracts which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution. These agreements, which would have to meet certain requirements, would not be subject to the court’s assessment of fairness,” but they would be subordinated to an obligation not to contract out of providing for the “financial needs” of the weaker party.
The “financial needs” exception might appear at first blush to be innocuous and sensible. In fact, however, it would create a gaping chasm of uncertainty that would undermine the basic goals of predictability, simplicity and autonomy. The proposed exception is so broad and its terms are so vague that no one will really know how it might be applied to the facts of any particular case.

The Law Commission has proposed some kind of non-binding “guidance” about “needs” to assist decision-makers in their task of interpreting that term in specific cases, which serves to underscore the fact that there will be substantial uncertainty under its proposal as to what the exception will include and how it will be applied.
The bottom line is that the most recent remarks of Baroness Hale serve to underscore the fact that the enforceability of prenuptial agreements under English law remains “iffy”.

In my field of international family law, a marrying person with significant assets should still be most wary of the English courts’ potential interference in any prenuptial agreement.
It should also be noted that in the Radmacher case, the English courts also awarded the less wealthy husband a far greater financial award for his “needs” as a father to the parties’ child than I believe he would have received in any other courts anywhere else in the world.

Tuesday, April 28, 2015

Swedish Divorce Jurisdiction

Jeremy D. Morley[1]

Swedish courts have divorce jurisdiction as provided in the European Union's Brussels II bis regulation, if:
          a. Both spouses are habitually resident in Sweden; or
          b. Both spouses were last habitually resident in Sweden, and one still resides there; or
          c. The defendant is habitually resident in Sweden; or
          d. The plaintiff is habitually resident in Sweden, and either has resided there for at least a year preceding the application or is a Swedish national; or
          e. Both spouses are Swedish nationals.
But the European Court of Justice ruled in the case of Sundelind Lopez v. Lopez Lizazo (Case C-68/07) ECJ 3 338 that, unless another European Union Member State has jurisdiction under “Brussels II,” Swedish courts also have personal jurisdiction if the requirements that are provided by an ancient law from 1904 known as the “law on certain international legal relationships concerning marriage and guardianship.”
Under that law, there are two additional grounds for jurisdiction, as follows:
f. If the plaintiff is a Swedish citizen and is habitually resident in Sweden; or
g. If the plaintiff is a Swedish citizen and has been habitually resident there at any time after attaining the age of 18.

[1] Jeremy D. Morley is a New York lawyer, not a Swedish lawyer. He works on many Swedish – U.S. family law cases with Swedish counsel.

Thursday, April 23, 2015

Mexico “enforces” the Hague Convention by returning the wrong child:

Joy, Anger for Family of Mexican Girl Wrongly Sent to US
By PETER ORSI Associated Press
When a woman in Texas claimed that Alondra Luna Nunez was her long-lost daughter, the girl's real parents in Mexico say they presented more than a dozen documents from baptismal records and a copy of her birth certificate to family photographs. They were sure it was enough to demonstrate her true origins.
In the end, they say, Alondra was sent screaming to the U.S. based on a scar on the bridge of her nose resulting from a remote-control car mishap as a young girl. And they blame their traumatic weeklong separation squarely on the judge who made the final call.
"The other girl had a scar, but on the eyebrow, and I have one on my nose. I mean all this was stirred up over that," Alondra, 14, told The Associated Press on Wednesday at an emotional reunion with family after nearly a week away. "The judge said, 'No, it's her,' and that was that."
DNA testing proved Alondra was not Houston resident Dorotea Garcia's daughter.
The case drew international attention after a video of the distraught girl being forced into a police vehicle last week circulated in media and on social networks.
Judge Cinthia Elodia Mercado told the AP that she held to her obligation to make sure that international child-abduction conventions were followed.
"Our only job is to resolve whether the child needs to be returned or not," she said.
But the resulting drama touched not only Alondra's family in Mexico but also Garcia, who believed she had finally found her daughter, Alondra Diaz Garcia, taken from the U.S. illegally by her father nearly a decade ago.
That girl's whereabouts are unknown, and a felony warrant remains for the father, Reynaldo Diaz, who is suspected of abducting her from Houston in 2007.
Garcia, speaking to a Houston television station, said the first time she saw Alondra Luna, "I saw my daughter." She gave few details about how she ended up leaving Mexico with the girl, although she said she knows many won't look kindly on her actions.
"The people who know me don't need me to give an explanation for what happened," she said later to the AP. "Whatever explanation I give won't change the minds of people in Mexico or here."
Alondra said Garcia and the woman's family members apologized to her before she returned.
After Alondra flew into Guanajuato in Central Mexico around noon Wednesday, the family gathered for an afternoon and evening barbecue at her aunt's house. They celebrated with balloons, streamers and steak and chorizo sausage sizzling on the grill.
"Welcome to your real home, Alondra," read a homemade sign.
Wearing jeans, a gray T-shirt and a silver necklace with an image of the Virgin of Guadalupe, Alondra laughed and hugged brothers, cousins, aunts and uncles. As the sun went down in the hilly working-class neighborhood where they live, family and friends lit candles and recited the rosary on a sidewalk. Alondra wept as an elderly neighbor swept her into an embrace that lasted for minutes.
Family members were spending the day together in private again Thursday, and Alondra planned to return to school on Monday.
Uncle Ruben Nunez said the family was considering whether to pursue legal action, though he did not specify any potential targets of a lawsuit and said no lawyer has been consulted.
Garcia traveled to Mexico this year and said she had found her daughter in Guanajuato. She did not elaborate how, in her brief comments to the AP.

Tuesday, April 21, 2015

What is International Family Law?

By Jeremy D. Morley

          International family law is a loose term that describes any and all family law matters that have an international element. That element may be that a spouse, a spouse-to-be, or a child is a national or domiciliary of another country. Or it may be that the spouses are in a country other than their country of origin, or that a child is away from its country of origin, or that spousal assets are in another country. It may even include a family that lives in the country of origin of all members of the family, one of whom might in the future be located overseas or have assets overseas. As such it could encompass almost all families since it is now the norm for families to have at least one member who is out of the country at some point of time.

          International family law is a fast-growing area. More and more people are residing internationally and experiencing international relationships. Americans travel and spend time overseas much more than before and immigration into the United States continues unabated. There is also an explosion in remote relationships as the Internet allows people to link up with anyone in the world. Consequently, many more relationships in this country now have an international component.

          International relationships are particularly prone to breakdown because of the additional pressures that result from differences in culture, language, and religion and the issues that may arise from such factors as extended family involvement, particular economic pressures that international relationships often create, immigration or emigration difficulties, and job transfer problems.

          Paradoxically, while we live in an era of globalization and instantaneous international connections, family laws remain almost completely local and parochial. Family law is handled in the United States at the state level. Although the differences between the states as to family law have been reduced in recent years, as a result of federal legislation in some areas (e.g., child support), the promulgation of uniform laws in other areas (e.g., child custody), and a general trend towards uniformity in all matters across the country, changes in family law are made by state legislatures. Elsewhere, family law continues to be the domain of nation states and to be interwoven with local culture, religion, and history. Within some regions, of which continental Europe is the prime example, there is a trend towards some regional standardization of family laws but in general nation states continue to guard, often jealously, their sovereign right to promulgate family laws that purport to be right for their local society.

          Moreover, family law changes at a far slower pace than society in general. While the numbers of non-marital heterosexual partnerships and of same-sex relationships are growing enormously, at least in the Western world, most countries have still not fully reformed their family laws to accommodate these trends. Likewise, while the model of a family unit that is permanently located in one particular jurisdiction is in fact becoming increasingly outmoded, divorce laws generally remain wedded to the idea that marriages should be governed by the law of the one certain place to which they belong.

What international family law is and is not

          There is really no such thing as International Family Law. Clients and even some lawyers who do not know this area of the law often ask, What is the international law? on such issues as, Which court has jurisdiction of my divorce case? or Will my marriage be recognized? The answer invariably is that “international law” does not apply and that the question cannot be answered without first knowing which country (and often which state or province within a country) will be the forum in which the issue will be raised, then by determining and applying the law of that particular jurisdiction as to which country’s or state’s law will apply, and then by applying that local law.

          International family law is really nothing more than domestic family law as it applies to the international aspects of a case. There are some international treaties that apply to some of these cases, the most prominent of which is the Hague Convention on the Civil Aspects of International Child Abduction, but they apply only because they have been incorporated into domestic law and only to the extent of that incorporation. Although the United States Congress has power to enter into binding international treaties, in the area of family law it has done so rarely. In any event, such treaties are generally brought into domestic law by specific legislation. There is no international court that applies or enforces treaty obligations in the area of U.S. family law. Within regional country groupings, international regulation of family law matters may be somewhat supranational in nature, as is the case with the European Union, but the United States is not a member of any such organization.

          Even when international treaties concerning family matters have been brought into domestic law, their interpretation and enforcement is handled at the local level. Consequently there may be substantial variance in the meaning and effect of those treaties as they are applied by local courts and enforced by local authorities. For example, the terms right of custody and habitual residence in Article 3 of the Hague Abduction Convention are interpreted in very different ways in different U.S. circuits and in foreign countries, despite the fact that the courts in the U.S. and the U.K., for example, have asserted that there should be “an autonomous meaning, a meaning independent of that which they would be given in the domestic laws of any of the states parties.”

          In many ways international family law is international comparative law. An international family lawyer must be open to understanding, and sometimes even mastering, the family laws of other countries. Clients with ties to different jurisdictions need to understand the potential impact of the family laws of different countries on the situation they are in currently or in which they may find themselves in the future. While an international family lawyer in the United States is unlikely to be admitted to practice in other countries he or she will usually have a good understanding of the family laws of some other countries and will be open to learning about the family laws of all other jurisdictions.

Collaboration function of international family lawyer

          An international family lawyer is usually a collaborator who works well with local family lawyers in other jurisdictions, whether of a similar legal heritage or an entirely foreign one. While an American lawyer will be reasonably comfortable collaborating on a U.S.-Australian case with an Australian lawyer who not only speaks English but also is trained in and works in a common law based on English notions of stare decisis, it will be far more challenging in a U.S.-French, a U.S.-Chilean, or a U.S.-Japanese case for an American lawyer to work with a French, Chilean, or Japanese counterpart. The language challenges are likely to be far more surmountable than the challenges of understanding enough of the foreign law to be able to make a useful contribution to decisions of importance to a client.

It is generally important that the international family lawyer should have, or develop, an international network of lawyers around the world with whom to collaborate.   

Qualities required to succeed as an international family lawyer

          International family law is intellectually stimulating. This author loves it because the skills that it requires are not those of the conventional divorce lawyer but include the following:

   &b; Understanding the laws of different countries, as written and more importantly as actually applied;

   &b; Understanding the role of law in particular foreign societies, especially in the area of domestic relations;

   &b; Comparing the laws of different countries;

   &b; Unraveling the often highly complex story of an international family's chain of multiple international residences and its accumulation of global assets and liabilities;

   &b; Understanding the unique challenges that confront families who relocate overseas, including challenges that result from:

   - The responsibilities that may be owed to other members of a spouse's family;

   - The involvement in family life of other members of a spouse's family;

   - The position of the trailing spouse overseas;

   - The implicit responsibilities of a working spouse in particular foreign countries and in particular fields; and

   - The needs and concerns of children who are relocated to foreign climes.

   &b; Understanding the position of children in foreign countries, especially the prevailing societal views concerning child custody and access;

   &b; Understanding the position of women in foreign countries and of their expected role;

   &b; Understanding the place of religion in foreign countries, especially as religion has an impact on the roles and status of men, women, and children and interacts with legal rules in place in particular foreign countries;

   &b; Working with professionals and clients who come from an extraordinary range of cultures, nationalities, and religions; and

   &b; Strategizing, Strategizing, Strategizing. The strategizing is primarily in areas in which there is no right answer and in which the intellectual puzzle may be to:

   - Understand the client's goals;

   - Understand the other party's goals;

   - Understand the law that currently governs the situation;

   - Understand the client's position in life;

   - Understand the other party's position in life;

   - Figure out whether there are any other potential jurisdictions; ascertain whether those jurisdictions would yield a better result for the client;

   - Determine what needs to be done to allow the best jurisdiction to take the case; and

   - Brainstorm with the client as to how to create the facts on the ground that will allow that best jurisdiction to take the case and that will preclude other jurisdictions from doing so.

          The focus will often not be on financial matters. For expatriates with children the overwhelming issue is more often that of how to get back home with the kids and how to make sure they are then not taken back overseas. Even here, though, money may play a large role since a party who asserts viable financial claims may gain crucial leverage to use in negotiations about children.

          International family law is not easy. Far from it. Done well it is incredibly challenging, thought-provoking and intellectually taxing. Each case is a new puzzle to solve and some of the puzzles are really tough. Would we want it any other way?