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Jeremy Morley
I was accepted yesterday by both sides in a case in North Carolina as an expert in international child custody law and international child abduction law, and the laws and procedures of the same, and as these matters apply to Iran.
I have previously provided expert evidence as to international child custody issues concerning Iran in cases in Australia, Canada and California.
The
Family Court of Western Australia appointed Jeremy D Morley as a single expert
to report on the law and legal process by which the Malaysian courts make
arrangements following the breakdown of a marriage with respect to the custody
and guardianship of children, financial support and maintenance for spouses and
children, division and adjustment of property (including matters concerning
foreign real estate) and the division and dissolution of marriage.
In a Hague Abduction Convention case in the United States District Court in Savannah, Georgia, the Court relied on the opinions that I expressed in the 2020 edition of my treatise on International Family Law Practice that (a) international travel authorizations should normally be afforded only limited significance as evidence of consent to indefinite relocation and (b) a relocation of a petitioning parent to a country other than the child's habitual residence does not prevent the return of that child to the petitioner at the petitioner's current place of residence. Rishmawy v. Vergara, 2021 WL 1760303 (S,D, Ga., May 4, 2021).
Country Summary: The Convention has been in force between the United States and Costa Rica since 2008. In 2020, Costa Rica continued to demonstrate a pattern of noncompliance. Specifically, the judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 29 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. The Department is unaware of any judicially ordered returns of children to the United States in 2020. On average, these cases were unresolved for one year and nine months. Costa Rica was previously cited for demonstrating a pattern of noncompliance in the 2011- 2016, and 2020 Annual Reports.
Initial Inquiries: In 2020, the Department received two initial inquiries from parents regarding a possible abduction to Costa Rica for which no completed applications were submitted to the Department.
By Jeremy D. Morley
In a practice that increasingly involves cross-border issues, a growing number of clients fear their children may be abducted, are concerned about overseas travel, or are considering international marriage or divorce. Written to help family lawyers best represent clients and their children, this updated edition explains all aspect of how the Hague Convention works in the United States.
Every family lawyer should understand the workings of the Hague Convention on the Civil Aspects of International Child Abduction. This updated third edition of The Hague Abduction Convention explains for family lawyers how this critical treaty works in the United States, both in theory and in practice. The renowned author, Jeremy D. Morley, has enormous experience counseling clients and fellow practitioners as to international family law matters globally, as well as lecturing on international child custody law to audiences around the world.
Click here for further details.
by Jeremy D Morley
An amendment to Japan's Civil Procedure Law enters into force on June 1, 2021, intended to promote enforcement of Japanese civil custody orders. Although the new law may be helpful it will provide no benefit to non-custodial parents seeking to enforce their visitation rights.
Japanese
law continues to provide that only one parent may have custody after a divorce,
even if it established that both parents are ideal care providers. There is
mounting pressure in Japan to change the law but that has not yet occurred.
Accordingly, the only right that a non-custodial may enjoy in Japan is visitation.
Even here, however, the visitation rights of a non-custodial parent are
generally limited in the extreme.
Traditionally,
Japanese court orders in family matters have been entirely unenforceable. That
has changed slightly in recent years. The new law is intended to assist in such
enforcement. However, it will benefit only the custodial parent. It simply
allows for “direct enforcement” of the custodial parent’s right to secure the
return of a child who has been removed or retained from that parent’s custody.
Since custody after a divorce is usually given to the parent who has previously
had the child in his or her possession, the law will now enhance the parent’s
ability to enforce sole custody rights.
It
is unfortunate that the new legislation provides no assistance to the
non-custodial parent’s rights of visitation.
Japanese
courts generally limit visitation to a couple of hours once a month in the
daytime, in the area where the child is living, unless the parties agree
otherwise. To make matters even worse, custodial parents can usually rely
successfully on a multiplicity of acceptable excuses for non-compliance with visitation
orders. The only way to seek enforcement of these rights is to seek some kind
of financial sanction, which is often described as equivalent to a parking
ticket. There is no contempt of court for the violation of court orders
concerning family law matters in Japan and the only available remedy is the
limited financial claim, which is generally difficult to secure and
ineffective.
At
least the new law might make it a little more likely that custodial parents
will agree to allow a little more visitation, since they will now have the
availability of a potential remedy if the child is not returned. I have
repeatedly explained that in Japan possession is 99% of the law and it may be
that the new legislation may lead to a modest change in that regard.
Yesterday
I testified on such issues as an expert witness in a case in California concerning
a Japanese mother's application to relocate the children from California to
Japan. It is most unfortunate that the relocation applications of Japanese
parents who wish to move with their children back to Japan must normally be
denied because of the failure of the Japanese courts to enforce the provisions
of foreign custody orders concerning the sharing of custody between the parents
and concerning the rights of a non-residential parents to have liberal access
to their children in Japan and in the country where the non-residential parent
is living.
Country Summary: The Convention has been in force between the United States and Brazil since 2003. In 2020, Brazil continued to demonstrate a pattern of noncompliance. Specifically, the Brazilian judicial authorities failed to regularly implement and comply with the provisions of the Convention. Additionally, the competent authorities failed to take appropriate steps to locate a child in an abduction case, contributing to Brazil’s persistent failure to implement and abide by the provisions of the Convention. As a result of these persistent failures, 75 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for three years and eight months. Brazil was previously cited for demonstrating a pattern of noncompliance in the 2006-2020 Annual Reports.
Initial Inquiries: In 2020, the Department received three initial inquiries from parents regarding possible abductions to Brazil for which no completed applications were submitted to the Department.
In a majority of cases open at the end of calendar year 2020 in which there are judicial delays, the Brazilian Central Authority reported that Brazil’s Federal Public Ministry (MPF) was involved at some point. In some instances, it appeared that MPF intervention impacted cases. In other instances, actions by the MPF appeared to lengthen judicial proceedings in Brazil.
Central Authority: The U.S. and Brazilian Central Authorities have a strong and productive relationship.
Voluntary Resolution: The Convention states that central authorities “shall take all appropriate measures to secure the voluntary return of the child or to bring about an amicable resolution of the issues.” In 2020, one abduction case was resolved through voluntary means before the case was filed with the Brazilian Central Authority, and the child returned to the United States.
Brazil demonstrated a pattern of noncompliance with the Convention as a result of failure by the competent authorities to take appropriate steps to locate children after a Convention application was filed. As a result, there is one case (accounting for 11 percent of the unresolved cases) that has been pending for more than 12 months where law enforcement has failed to locate the children, leading to significant delays in initiating the legal proceedings. The average time to locate a child was 37 days.
Judicial Authorities: There were serious delays by the Brazilian judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance. In 2020, the Department was again unaware of any Brazilian efforts to address judicial delays, despite repeated engagement during the year by the Ambassador, senior Mission personnel, and the Department with counterparts Brazil, continued 32 in the Brazilian government. This failure to improve Convention implementation continues in the form of delays at the first-instance, the appellate, and the enforcement stages. As a result, the Department remains deeply concerned with the Brazilian judiciary’s repeated failure to regularly implement and comply with the provisions of the Hague Abduction Convention. Moreover, the U.S. Central Authority is deeply concerned by language that was clearly non-compliant with the Convention in more than one judicial decision. In these decisions, the courts used inaccurate definitions for a defense to a return claim.
Enforcement: While courts in Brazil ordered returns under the Convention, Brazilian authorities were not able to enforce these orders. In one notable case, after 11 years of litigation at all levels of the Brazilian judiciary, the Brazilian Central Authority reported that the Brazilian court still failed to enforce its own judiciary’s order for return. Moreover, judicial decisions in Convention cases in Brazil were generally not enforced by the judiciary, which contributed to a pattern of noncompliance.
Access: In 2020, the U.S. Central Authority acted on a total of two open access cases under the Convention in Brazil. Both of these cases were opened prior to 2020. Both cases had been filed with the Brazilian Central Authority. By December 31, 2020, both of these cases had been resolved. Department
Recommendations: The Department will continue intense engagement with Brazilian authorities to address issues of concern and will consider actions to prompt better Brazilian compliance with the Convention.
by Jeremy D. Morley
Difficult issues arise under the Uniform Child Custody Jurisdiction and Enforcement Act when children are taken overseas for visits and do not return. A recent New York case illustrates some of the issues.
In Kassim v. Al-Maliki, 2021 WL 1774145 (NY App. Div. 2d. Dept. May 5, 2021), the Appellate Division, Second Department reviewed a Family Court order dismissing a petition for habeas corpus and custody of children who were taken from New York City to Yemen in 2016 where they have since remained. The father claimed that he and his wife consensually relocated to Yemen with the children. The mother claimed that they went to Yemen for a visit and that after they arrived there the father confiscated her and the children’s passports. She further explained that it was only after she signed a divorce agreement under duress that she was given her own passport and that she had then returned alone to the United States. Once she was back in New York, she had commenced a case against the father for habeas corpus and child custody.
The Family Court dismissed the case without a hearing for lack of subject matter jurisdiction since the children had long been in Yemen, and the mother appealed.
The appeal court overturned the dismissal of the case. It ruled that the trial court “erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing” as to the issue of whether New York or Yemen was the child’s home state, since “there are disputed issues of fact regarding the circumstances under which the parties moved from New York to Yemen.”
In substantial part, the issue in the case concerns the provisions of section 102(7) of the UCCJEA that a “period of temporary absence” from a state counts as part of the required period six consecutive months of residency in the state before the commencement of a child custody proceeding. On this issue, see Jeremy D. Morley, International Family Law Practice, Sec. 7:6. (Westlaw INTFLP § 7:6).
Courts have developed three distinct tests to determine whether absences are temporary or permanent:
1. Duration. Some courts focus solely on the length of the absence, holding that the child's physical location must be the central issue.
2. Intent. Some courts consider the intent of the parties, and specifically whether the parties intended to be away for a limited amount of time and which state they viewed as their place of permanent domicile.
3. Totality of Circumstances. Finally, some courts require an examination of all the circumstances surrounding the absence, including the duration of the absence, whether the parties intended the absence to be permanent or temporary, and any additional relevant circumstances. The decision of the U.S. Supreme Court in Monasky v. Taglieri, 140 S. Ct. 719 (2020), applying a totality of circumstances test to the interpretation of the key term of “habitual residence” in the Hague Abduction Convention, may well encourage the use of the same test for interpreting “temporary absence” in the UCCJEA.
A separate issue, not addressed by the Appellate Division decision but likely to arise on the remand of the case to the Family Court, is whether the child custody law of Yemen falls within the scope of the “escape clause” contained in UCCJEA Section 105(c), as expanded in New York pursuant to Section 75- d (c) of the Domestic Relation law.
The UCCJEA Model Act provides (UCCJEA § 105(a)) that a court “shall treat a foreign country as if it were a state of the United States for the purpose of applying” the statute, but in Section 105(c) that this need not apply “if the child custody law of [the] foreign country violates fundamental principles of human rights.” The language is extremely narrow. It extends only to a “child custody law” that “violates fundamental principles of human rights” and appears on its face to be limited to the law as written in a foreign statute.
However, New York has expanded the scope of the escape clause significantly. The New York legislature added the words, “or as applied” to the provision, so that it reads, “(c) A court of this state need not apply this article if the child custody law of a foreign country as written or as applied violates fundamental principles of human rights.” (Domestic Relations Law, Sec. 75-d(c)). On these issues, see Jeremy D. Morley, International Family Law Practice. §§ 7:23 – 7:28 (Westlaw INTFLP § 7:23 et seq.).
This will presumably allow a court in New York to consider both Yemen’s laws concerning child custody as they are written in the Personal Status Law of Yemen, which contains arbitrary provisions based on age, gender and religion, and also how those laws are actually applied in practice.
.
A factor to take into account, among very many others, when considering issues concerning the need to use the courts in Colombia to secure the return of children who have been abducted to that country, is the extreme delays that plague the judicial process there.
Indeed, according to the World Justice Project’s current Rule
of Law Index, surveying 128 countries, Colombia ranks almost bottom, at 124th.
Likewise, the World Bank Group has determined that it takes
an average of 1,288 days to enforce a contract in Colombia, as compared to 590
days in OECD countries, with an average legal fee and expense cost of 45.8% of
the claim value in Colombia as compared to 21.5% in OECD countries.
by Jeremy D. Morley
Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.
The Committee of Ministers of the Council of Europe determined on December 3, 2020 that Hungary's failure to meet its obligations under the Convention was so serious that certain specific cases should be reviewed by the Ministers under a special “enhanced supervision” procedure that is reserved for extraordinary cases.
The European Court of Human Rights (the “ECHR”) has reprimanded Hungary on several occasions for flagrant violations of the human rights of left-behind parents whose children have been abducted to Hungary and have never been returned to their prior habitual residence. The European Union's Ministers have now brought the issue to a level of greater seriousness.
It should be noted that in its 2021 Annual Report on International Child Abduction the U.S. State Department lists Hungary as being compliant with the Convention. This is highly misleading. The Department received no completed requests for assistance in 2020 or several prior years for abductions to Hungary.
Having worked on international child custody matters concerning Hungary for many years, and having presented expert evidence on such matters, it is apparent that the problems include the following:
- Hungarian courts frequently misinterpret the Hague Convention's terms, such as “habitual residence,” in favor of the taking parent.- There is no effective procedure within Hungary to enforce court custody orders. Pursuant to the governing Hungarian legislation, the enforcement of final and effective judicial custody and visitation decisions is not within the competence of the court handling the Hague case. The body that is responsible for enforcement cases is the local “Custody Authority.” The Custody Authorities do not have sufficient coercive power and their procedure is slow and inefficient. As a result, even a favorable Hague decision is often completely futile because it is not enforced.- It typically happens that if, as and when enforcement is finally employed, the taking parent cannot be found. The “bailiff” cannot issue a search warrant with criminal consequences but merely reports the matter to the police.- The passage of time in such circumstances typically leads to the child becoming well integrated into the new environment, which helps to create new defenses for the taking parent.- It is common for the taking parent to successfully preclude the left-behind parent from having any contact with the child during the lengthy court proceedings, thereby enabling a psychologist to subsequently declare that there would be a “grave risk” of harm to the child if the child were sent back to the former residence, especially if the taking parent were not to accompany the child.
The cases heard by the ECHR concerning Hungary's failure to comply with the Hague Abduction Convention include the following:
In this case, the child was wrongfully retained in Hungary in 2011 away from her habitual residence in Italy. In 2012, the Hungarian courts ordered that the child must be returned to Italy. That order was never enforced. Although arrest warrants were ultimately issued against the mother, and for reasons that are difficult to understand, the Prosecution Office in Hungary dismissed the criminal charges as “unsubstantiated” and the mother's name was deleted from a list of people who were wanted under an arrest warrant. A host of subsequent proceedings ensued, all without success. In 2018, the ECHR ruled that Hungary had violated Article 8 of the European Convention for the Protection of Human Rights, which provides that, “Everyone has the right to respect for his private and family life.”
In Cavani v. Hungary, the children's mother abducted the children from Italy to Hungary in 2005. The Pest Central District Court found that the mother was keeping the children in Hungary illegally in violation of Article 3 of the Convention but refused to order their return to Italy because at their young age the children needed to be cared for by their mother. That ruling was in absolute violation of the Convention since “best interests” must not be considered in a Hague case. On appeal, the Budapest Regional Court ordered that the children should be returned to Italy. However, the Hungarian authorities never enforced that order despite the ongoing efforts of the father, recounted at length in the European Court's ruling, throughout the next several years. The Hungarian authorities repeatedly claimed that they could not find the children. During all of this time the father never saw the children. Seven years after the abduction the children were found, but only because their school principal in Budakeszi, Hungary brought a court action in Hungary in which he stated that the children were in danger in their mother's custody and asked that they be placed in state protection. By this time the children could no longer speak Italian and were totally estranged from their father.
The ECHR ruled in 2014 that: “the Hungarian authorities failed to take adequate measures to facilitate the reunification of the applicants and [it] considers that the applicants must have suffered anguish and distress as a result of the forced separation and the perspective of the father and daughters never seeing each other again.” This was a clear violation of Article 8. However, the only award that it was empowered to make was a financial award to the father.
In Shaw v. Hungary, the ECHR ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents' divorce. The family lived in France. In 2007 the mother took the child to her native Hungary for what was supposed to be a Christmas vacation, but never returned the child. The father promptly brought a Hague case in Hungary and also obtained a custody order from the French courts but he never saw his daughter again.
A court in Pest, Hungary ordered the child's return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court's order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and the Hungarian officials thereafter continuously claimed that they could not find her or the child.
Having exhausted his remedies in Hungary the father ultimately brought suit against the State of Hungary in the European Court of Human Rights. He complained that Hungary had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter. The Hungarian government claimed that it had done everything possible to try to secure the child's return to France, but that the mother had absconded with the child which had temporarily prevented the authorities from taking any further measures.
Finding that the Hungarian state had violated the father's rights to family life, the ECHR ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses. However, the Court had no power to locate the child or to return the child to the father.
In Prizzia v. Hungary the ECHR ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to honor and implement the rights of a left-behind American father to have contact with his abducted son living in Hungary.
The parents lived in Virginia with their son. The Hungarian mother took the child to Budapest for a Christmas visit in 2003 and then refused to return him. The father promptly commenced a case in Hungary under the Hague Convention and traveled to Hungary on many subsequent occasions for the ensuing litigation. He lost at first instance on the improper ground that the mother was Hungarian and that it was better that her child lived in Hungary. On appeal he won but the media in Hungary complained that American authorities were “bullying” the Hungarian authorities and the Supreme Court of Hungary changed its earlier ruling and refused to return the child on the ground that he should not be separated from his Hungarian half-brother.
The father then engaged in several years of intense litigation in Hungary to try to at least get access to his son. A court in Budapest ultimately gave some limited access rights to him but those rights could not be enforced. Ultimately the father was able to see his son very occasionally but only in Hungary and he was never able to take his son for visits to the United States. The Supreme Court of Hungary eventually ordered that there should be summer visits to the United States but the authorities in Hungary failed entirely to allow those rights to be enforced.
When the father had exhausted his remedies in Hungary, he brought suit against Hungary in the European Court. That Court eventually ruled in 2013 – ten years after the child was abducted -- that Hungary had violated the Convention by failing to provide the father with effective rights of access to his son. Once again, the Court merely made a financial award to the left-behind parent for legal fees and for “having suffered anguish and distress as a result of the withering ties with his son and the insufficient measures taken by the Hungarian authorities.”
The U.S. State Department has recently released their annual report on International Child Abduction. The Department of State leads the U.S. government’s efforts to prevent and resolve international parental child abductions, as part of the Department’s mission to advance the interests and safety of the American people.
The 2021 Annual Report on International Child Abduction illustrates the Department of State’s efforts to prevent and resolve international parental child abductions during 2020. Despite continued progress, during 2021 some countries demonstrated a pattern of noncompliance as defined in the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014. This Report cites eleven such countries.
ARGENTINA
Country Summary: The Convention has been in force between the United States and Argentina since 1991. In 2020, Argentina continued to demonstrate a pattern of noncompliance. Specifically, the Argentine judicial authorities failed to regularly implement and comply with the provisions of the Convention. As a result of this failure, 67 percent of requests for the return of abducted children under the Convention remained unresolved for more than 12 months. On average, these cases were unresolved for six years. Argentina was previously cited for demonstrating a pattern of noncompliance in the 2015-2020 Annual Reports.
Initial Inquiries: In 2020, the Department received one initial inquiry from a parent regarding a possible abduction to Argentina for which no completed application was submitted to the Department.
Significant Developments: Draft legislation designed to address Argentina’s judicial delays, introduced in the Argentine legislature in 2018, was not enacted in 2020. Serious delays persisted within the Argentine judiciary in 2020, contributing to a pattern of noncompliance. Additionally, in 2020, there was a significant changeover of Argentine Central Authority officials working with the U.S. Central Authority, leading to some delays in communication.
Central Authority: While the U.S. and Argentine Central Authorities have a cooperative relationship, delays in communication about actions to address patterns of noncompliance are an area of concern.
Location: The competent authorities took appropriate steps to locate a child after a Convention application was filed. It took eight days to locate this child. Judicial Authorities: There were serious delays by the Argentine judicial authorities in deciding Convention cases. As a result of these delays, cases may be pending with the judiciary for over one year, contributing to a pattern of noncompliance.
Enforcement: In one case pending for more than 11 years, Argentina has not enforced a return order for the last several years. Additionally, Argentina’s legal system allows multiple appeals both on the merits of the decision and on the manner in which the decisions are enforced, thereby creating excessive delays which contribute to a pattern of noncompliance.
Access: In 2020, the U.S. Central Authority had one open access case under the Convention in Argentina. This case was opened in 2018. This case has been filed with the Argentine Central Authority. No new cases were filed in 2020. By December 31, 2020, this case remained open. This case has been pending with the Argentine authorities for more than 12 months.
Department Recommendations: The Department will continue intense engagement with Argentine authorities to address issues of concern.
Grounds
For Divorce in Korea
A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Act. Both spouses need to agree and appear in court in Korea.
Alternatively, the
grounds for a judicial divorce in Korea (Art. 840) are:
There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial
divorce process is a fault-based contest between a wrongdoer and the wronged.
The courts reason that a guiltless spouse should not be forced into an unwanted
divorce. Korean legal scholars supporting the fault-based system generally cite
the following reasons: Granting a divorce to the party at fault goes against
Confucian morality (doei) and may encourage the husband to arbitrarily abandon
his wife, as was the practice in the past. Moreover, by forcing a couple to
stay in marriage, it is believed that a wife will be able to continue to use
the common property and receive support.
The standards that
govern divorce and child custody in Korea are extremely subjective and the
judges are vested with great discretion. The standards are very flexible. In
the Korean system, the judge is intended to be a parent to the public, who is
benevolent, lenient, and wise.
Financial
Issues in Korean Divorce Law
The Korean Civil Act
provides that, unless there is an agreement concerning the division of property
(but see below on this), the Family Court shall "determine the amount and
method of division, considering the amount of property acquired by cooperation
of both parties and other circumstances." Korea Civil Code, Art. 839-2(2).
The courts consider
such factors as the parties' ages, occupations, the reason why they came to a
divorce, and their contribution to the property in deciding the proportion. The
property that can be divided is property that was acquired during marriage
through the cooperation of both spouses. Property that was acquired solely
through the individual effort of one spouse even during the marriage is treated
as the individual property of that party. Therefore, the court has a very broad
discretion to determine what property is divisible, based on the extent to
which the parties "cooperated" in the creation of any particular
asset.
Of critical importance
is the language in the Act to the effect that the Family Court should determine
the amount and method of division "considering the amount of property
acquired by cooperation of both parties and other circumstances."
Korea Civil Act, Art. 839-2(2).
Article 830 defines
"particular property" (sometimes translated as “peculiar” property)
as property that a spouse owned before marriage or property acquired during
marriage but is under the name of only one spouse. The meaning of
"particular property" in terms of divisible property under Article
839-2 is different from the meaning under Article 830. Property accumulated
during marriage that is under only one spouse's name is nonetheless divisible
if it resulted from cooperation of the married couple.
The Supreme Court of
Korea has affirmed lower court rulings that have insisted that the household
labor of one spouse must be taken into account when applying this rule.
Nonetheless, the Korean courts have historically undervalued the contribution
of spouses who provide housework by giving them less property in the division
of acquired marital property. Retirement allowances are divisible only if at
the time of the divorce they have been received or the date of the retirement
and the amount has been declared.
In addition, there is
no spousal maintenance in Korea and the courts have the power to adjust the
property division in favor of the economically disadvantaged party. For this
reason, in some cases a nonworking spouse has received more than half of the
parties' assets. Indeed, Korean counsel report that in practice the typical
rule is that upon a divorce the wife is invariably entitled to receive one-half
of all of the parties' assets, both pre-marital and post-marital.
Choice
of Law in Korean Divorce Law
Korean courts apply the
law of the parties' common nationality to their divorce and to matters arising
from the divorce. If there is no common nationality, they will apply the law of
a common habitual residence or otherwise the law of the place that is most
closely connected to both spouses. Article 840. Korean Civil Act.
However, if one of the
spouses is a Korean national whose habitual residence is in Korea the court
must apply Korean law. Korea, Private International Act, Art. 39.
If the parties have chosen
a foreign law to govern their marital property, the choice might be respected
if the agreement complies with execution requirements and if the law that is
chosen is that of either spouse's nationality or habitual residence (or in the
case of real property is the law of the location of the property).
Korea, Private International Act, Art. 38. However, this issue is
extremely uncertain (see below).
Issues concerning the legal relations between parents and children are governed by the law of the parents' common nationality or otherwise by the law of the child's habitual residence. Korea, Private International Act, Art. 45.
Prenuptial
Agreements in Korea
The Korean Civil Code
expressly authorizes “marital agreements” concerning the division of property
between marrying spouses, but these are not necessarily equivalent to
prenuptial agreements. agreements.
Article 829 of the
Civil Act provides that, “(1) If husband and wife have not, prior to the
formation of marriage, entered into a contract which provides otherwise with
respect to their property, their property relation shall be governed by the
provision of each Article of this Sub-Section.”
The meaning of this
provision is uncertain. There are two opinions on this issue in Korea:
The first opinion is
that marital agreements should be recognized upon a divorce under the principle
of freedom of contract. This view is supported by a decision of the Supreme
Court of Korea issued in 2000, in which the Court held that, “The consultation
on the division of property shall refer to the consultation that is held
between the parties who have already completed a divorce or the parties who
have not yet been divorced with regard to the division of property acquired by
the cooperation of both parties during the marriage. In cases where a party who
has not yet been divorced makes a consultation on the division of property on
the premise that the divorce shall be held, if the party subsequently divorced
as determined, the consultation on the division of property shall take effect.
(Supreme Court, 24 October 2000, 99 Da33458).
The second opinion,
which is totally contradictory, is that a marital agreement should not include
provisions concerning the division of assets upon a divorce and that any such
provisions would be invalid. This is because a marital property contract is
intended to govern the spouses’ relationship during their marriage only and
that an agreement that deprives a party of the protection provided by the laws
governing financial rights upon a divorce would violate Korean public policy.
Korean
Recognition of Foreign Divorce Decrees
Article 217 of the
Korean Code of Civil Procedure provides as follows:
A final foreign
judgment shall be valid and enforceable only if it satisfies the following
conditions:
(1)
A final and conclusive judgment rendered by a foreign court or a judgment
acknowledged to have the same force (hereinafter referred to as "final
judgment, etc.") shall be recognized, if all of the following requirements
are met:
The effect is to
provide several distinct requirements that must be satisfied if a foreign
judgment is to be enforced in Korea:
(a)
The requirement of finality and conclusiveness
Interim awards are not
the subject of enforcement proceedings in Korea. Foreign temporary dispositions
are not recognizable because of their nature as provisional remedies.
A foreign judgment will
be considered a final judgment only if there exists no possibility of a future
appeal. The party seeking to enforce a foreign judgment must prove either that
an appeal is not possible or that the time for an appeal has passed. California
counsel should advise as to whether or not these conditions have been
fulfilled.
An order for
pre-judgment attachment and an order for pre-judgment injunction are examples
of non-final judgments. Similarly, even if a foreign judgment which is
permitted provisional enforcement pending an appeal is enforceable in the
concerned jurisdiction, it cannot be a subject of recognition in Korea so long
as it is not final.
(b)
The issue of the location of the subject-matter
The in personam and in
rem concepts are alien to Korean jurisprudence. Generally, a foreign judgment
in rem would be recognized and/ or enforced in Korea when the judgment concerns
immovable or movable property that was within the jurisdiction of the foreign
court at the time of the proceeding.
(c)
The jurisdiction of the foreign court
It is clear that a
Korean court will not enforce a judgment of a foreign court concerning a
dispute that is subject to the exclusive jurisdiction of Korea or a third
country. For example, in an action concerning rights in Korean real estate
Korean courts have exclusive jurisdiction. This will apply to movables located
in Korea.
(d)
Public policy
Public policy or good
morals in Section 217 are judged by Korean standards. The requirement has a
broad meaning, which may range from substantive contents of the foreign
judgment to procedural fundamentals. The reasons leading to the conclusion as
well as the conclusion of the foreign judgment itself should be examined in
deciding whether or not the content of the foreign judgment is contrary to
public policy or good morals.
A foreign judgment, the
substance of which is not compatible with fundamental principles of Korean law,
cannot be recognized in Korea. In determining compatibility with public policy,
the factual basis of a judgment, as well as its text, must be taken into
consideration. Thus, even a monetary judgment may be held in violation of
Korean public policy if the factual basis of such judgment is so illegal or
repugnant that the assistance of the Korean courts in implementing the judgment
is deemed unacceptable in light of Korean legal philosophy. For example, a
judgment ordering the defendant to deliver contraband goods, or a judgment
confirming the legality of a concubine is not recognizable in Korea.
(e)
Reciprocity
It is not necessary
that a Korean judgment has been recognized in practice if it is predictable
that a Korean judgment will be recognized in light of statutes and legal
theories in the foreign country. The conditions of recognition do not have to
be identical in Korea and the foreign country. A substantial similarity in
important points of the respective requirements should be considered
sufficient. The term reciprocity in Section 203 means that the particular
foreign country does not inquire into the merits of a Korean judgment by reason
of a treaty or its domestic law, and that such foreign country would recognize
the validity of a Korean judgment under a standard similar to or more lenient
than that of Article 203. Reciprocity means that as the Korean courts recognize
judgments of foreign courts, so should the foreign courts recognize Korean
judgments. Reciprocity purports to prevent inequitable treatment of Korean
judgments by foreign courts.
Jeremy D. Morley
China has substantially amended its Law on the Protection of Minors. The new law, passed by the 13th National Peoples Congress in October 2020, will take effect on June 1, 2021.
The amended law contains a list of
virtuous principles concerning the duties of parents and guardians, the
requirement to protect children, and the role of state organs, residents’
committees, villagers’ committees, public security units, civil affairs offices
and other “relevant departments” in supervising citizens’ behavior concerning
children.
The newly-specified duties of parents include
educating and guiding minors to abide by the law, to be diligent and thrifty,
and to “develop good ideological, moral and behavioral habits.” The new
requirements include provisions whereby “the state establishes a unified
electronic identity authentication system for minors in online games;” as well
as an obligation “to install minor network protection software on smart
terminal products … for minors, etc.”
A measure that could have a significant
impact on the parenting of children in China after parental separation is a
provision that, “it is not allowed to compete for custody rights by snatching
or hiding underage children.” Until now, a parent in China has generally been free
to take a child away from the other parent, often to a distant location. Indeed,
in my area of focus, which is that of international families, it is extremely
common that, when a Chinese and non-Chinese couple living in China separate,
the Chinese parent will exercise self-help by simply removing the child from
the other parent, often by taking the child to live with a grandparent or by
moving to an undisclosed location. Until now, this method has been
all-too-successful. It remains to be seen whether this practice will now change
as a result of the new law, or, even more unlikely, whether the new law will have
any impact when a Chinese parent abducts a child to China from another country.
A further significant development,
effective February 18, 2021, is that courts are now required to interpret the
law in compliance with the “Guiding Opinions on Deeply Promoting the
Integration of Socialist Core Values into the Analysis and Reasoning of
Adjudicative Instruments,” issued by the Supreme People’s Court of China. While
this rule applies in all cases, it is especially required in cases “of public
concern,” including matters as to which an important principle should be stated
for the purpose of the education of the public.
The “Socialist Core Values” that must
guide all court decisions comprise twelve qualities that should define the
relationship between citizens and the Chinese state. These values are:
prosperity, democracy, civility, harmony, freedom, equality, justice, the rule
of law, patriotism, dedication, integrity and friendship. Their specific
application must comport with the guidance of the People’s Court as it, in
turn, interprets the guidance it receives from the People’s Congress. In this
context, it is critical to note that the
Chinese judiciary makes no claim to judicial independence. It acknowledges that it is strictly
subordinate to the Chinese Communist Party.
The mere fact that a foreign child custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time.
Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil.
Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.
Jeremy D. Morley
The Supreme Court of Korea issued an extremely important ruling on child custody in May 2020. Supreme Court Decision 2018Meu15534 Decided May 14, 2020 [Divorce].
The issue concerned whether a court had the power to order joint custody in a case in which the parents were in fundamental disagreement.
The governing Korean statutes – Articles 837 and 909(4) and (5) of the Civil Act; Article 2 of the Family Litigation Act, and Article 2 of the Family Litigation Act – provide broad authority for the courts in Korea to issue orders concerning child custody.
The Supreme Court restated the fundamental principle that the determination of the custody upon a divorce must be made in the best interest of the minor child’s growth and welfare. In this regard, courts should take into account the gender and age of the child, the presence of the parents’ love for and intent to rear the child, the financial ability of each parent to provide care for the child, the details of the manner of child-rearing adopted by each spouse, the reasonability and appropriateness thereof, the likelihood that their child-rearing styles can strike a balance, the level of intimacy between the child and each parent, and the wishes of the minor child.
The specific issue before the Court was whether the lower court had properly ordered joint custody of the child when the parents were in fundamental disagreement concerning matters relating to the child’s welfare.
The Court ruled that an award of joint legal custody to both divorcing parents was not precluded by the governing legislation, since the statutes did not stipulate that a court ought to designate only one of the parents as a legal custodian or a physical custodian.
However, it ruled that, before ordering joint custody, a court must exercise caution by taking account of the fact that a divorce is necessarily attributable to a serious conflict, such as torts, desertion, unfair treatment or other reasons that have made the continuation of the marriage impossible.
The Court stated that sharing of custody rights can create problems in that the child often has to suffer the inconvenience of alternating between the separate residences of the parents, which can be especially problematic if the child is in school. The child also risks experiencing confusion in value judgments or an unstable living situation.
Furthermore, if the parents are in
conflict over parenting styles, the negative impact on the child outweighs the
positive impact to be achieved by shared custody.
Therefore, in the case of judicial divorce, the appointment of both parents as joint custodians of a child should only be allowed only in cases where the conditions for shared custody are fulfilled. Thus, the courts must comprehensively consider (i) whether both parents are prepared to share joint custody of the child; (ii) whether there is a substantial difference in a set of values they have in terms of child rearing; (iii) whether both parents live nearby and the environments where the child will be reared are similar so that economic and time loss the child will incur is kept minimum and that the child will have no difficulty adapting to the environment; and (iv) whether the child has rational and emotional responsiveness to adjust to shared custody.
In the specific case before the Court, the lower court had designated the parents as joint custodial parents and joint residential parents of the child, with one parent having the child each week from Sunday at 17:00 to Friday at 17:00, and the other parent having the child each week from Friday at 17:00 to Sunday at 17:00 as a shared parenting method.
That determination had been made despite the fact that each parent had demanded sole custody and there had apparently not been an adequate analysis of the critical issues of “mitigating time and money loss and psychological instability potentially suffered by the child, who will have to alternate between the residences of the Plaintiff and the Defendant, follow the parenting decisions of each parent, and adjust to hugely disparate physical environments.”
For these reasons, the Supreme
Court overturned the decision of the lower court and remanded the case for a
new determination to be made consistent with the Supreme Court’s opinions.
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