Friday, December 30, 2005

Malaysia: Fierce Debate about Polygamy & Divorce

There is quite a furious debate under way in Malaysia over new family legislation on polygamy and divorce. Women's groups are claiming that the new law will make it easier for men to take multiple wives and to claim property after divorce.

The new law will apparently allow a husband to obtain an injunction preventing the disposition of property by a wife or a former wife. The amendment also endorses a man's purported right to polygamy without having to prove his financially capability of treating his wives on equal footing before taking on another. Upon taking a new wife, men can now seize property belonging to existing wives, and they are also given new rights to claim assets after a divorce, as well as less obligation to pay compensation and maintenance.

A women’s activist was quoted as saying that "They are giving more rights to the men whilst taking back the traditional Muslim women's rights." She said "It's not justified under Islam because Islam promotes the principle of equality and justice, and traditionally it guards the rights of Muslim women."

Wednesday, December 28, 2005

New York -- Divorce and Tort Cases Between Spouses

A New York court has held that a husband and wife are free to sue each for personal injuries for tort in a separate action than an action for divorce. Chen v. Fischer --- N.Y.3d. ---, --- N.Y.S.2d --- (2005 WL 3452221) (2005 N.Y. Slip Op. 09572)(Dec 15, 2005).

The New York Court of Appeals ruled that such actions are best not tried together, since they seek different types of relief and require different types of proof.

The Court said that "Parties are free, of course, to join their interspousal tort claims with the matrimonial action (see CPLR 601[a] ) and the trial court retains discretion to sever the claims in the interest of convenience, if necessary (see CPLR 603). If a separate interspousal tort action is contemplated, however, or has been commenced, the better practice would be to include a reservation of rights in the judgment of divorce. Finally, if fault allegations are actually litigated in a matrimonial action, res judicata or some form of issue preclusion would bar a subsequent action in tort based on the same allegations."

New York’s decision follows similar rulings in other states, including Connecticut (Delahunty v. Mass. Mut. Life Ins. Co., 236 Conn 582, 590-594, 674 A2d 1290, 1295-1297 [1996]); Maine (Henriksen v. Cameron, 622 A2d 1135, 1141-1142 [Me 1993]); and Massachusetts (Heacock v. Heacock, 402 Mass 21, 23-24, 520 NE2d 151, 153 [1988]).

By contrast, New Jersey’s "single controversy" rule requires that an interspousal personal injury claim be brought with the matrimonial action so that the issues between the parties can be decided in one proceeding in order to prevent protracted litigation. Tevis v. Tevis (79 N.J. 422, 400 A.2d 1189 [1979]); but see Brennan v. Orban, 145 NJ 282, 303, 678 A2d 667, 678 [1996] in which the New Jersey Supreme Court acknowledged that litigating an interspousal tort claim prior to the divorce proceeding "may have a negative psychological impact on parties by prolonging the uncertainty of their marital status."

Friday, December 23, 2005

England: London Family Court Delays

A campaign to speed up the listing of family cases involving divorce and vulnerable children at risk of serious harm has been launched by the Law Society.

A survey has found that such cases are commonly being delayed for up to six months. The Central London Family Court is worst affected, with some 70% of respondents saying that they have suffered delays there. The survey blames the hold-ups on insufficient ‘judge hours’ being allocated to family matters and on inadequate staff enrolment and training.

“The intention of the campaign is to bring the delay, and the reasons for it, to the notice of the government and senior judiciary,” says Society chief executive, Janet Paraskeva. “We will be pressing for more judges to undertake family work and for the recruitment of higher numbers of court staff.” Philip Waller, Senior District Judge at the Principle Registry, commented, “We acknowledge the problem and are striving to do everything we can with the limited resources that we have available.”

Scotland: Family law changes approved

The Scottish Parliament has passed the most liberal divorce laws in the United Kingdom.

Sweeping reforms to family law in Scotland have been approved. The new law reduces the time periods for a divorce. Until now, couples seeking to end their marriage where there are no fault grounds - such as adultery or desertion - must have lived apart for at least two years. In contested 'no fault' cases, the minimum separation period is five years. These timescales are now reduced to one year and two years respectively.

The law also gives new parental rights and responsibilities to unmarried fathers jointly registering the child's birth and provides cohabiting couples with some legal safeguards over shared household goods and expenses.

England: Generous Courts; Offshore Trusts

John Charman, the eighth-wealthiest man in the City of London, tried to prevent his wife from gaining access to an offshore trust fund said to be worth 65 million pounds. He failed on Tuesday in his appeal against a High Court order that gives Beverley Charman details of the Bermuda fund and could affect the size of her settlement.

The ruling is the latest to indicate the sympathy of English courts towards wives in the division of wealth. Generous settlements by judges are turning England into the destination of choice for multimillion-pound divorce cases.Divorce lawyers confirmed the prevalence of “forum shopping,” choosing the country in which to obtain the most lucrative alimony. They said that pre-nuptial agreements could become enshrined in law because of recent substantial payouts in English courts.

Charman now lives in Bermuda and owns a home in Florida. The couple’s 27-year marriage ended when Charman, a star of the Lloyd’s insurance market, went to Bermuda in November 2003 and told his wife that he would not be returning to the family home in Sevenoaks, Kent.

Sir Mark Potter, the president of the High Court Family Division and one of three appeal judges who heard the case, said that courts should agree to requests by wives to question the trustees of offshore trusts, to achieve a fair settlement.

Thursday, December 22, 2005

Japan - Haven for International Child Abduction

English-language Japanese newspapers have reported on another case of a child being abducted by a Japanese parent to Japan.

Japan refuses to become a party to the Hague Convention on the Civil Aspects of International Child Abduction, in spite of international pressure that it do so. The family courts in Japan do not provide any significant protection to foreign parties seeking custody of their children or even access to their children. As a result, Japan has become a renowned haven for international child abduction. See for links to several of my articles on this subject.

In the recent case, a Japanese mother living in Vancouver, Canada took her two children, age 10 and 7, to visit their grandparents in Japan. A Canadian court had awarded custody to the father. Once the children were in Japan, the mother refused to allow them to return. She secured a temporary custody order from the Saitama court and ultimately a permanent order of custody. Japanese courts do not recognize or enforce foreign custody decrees, and in this case they refused to apply the Canadian decree.

If the father seeks visitation with his children he should expect little mercy from the courts. The newspapers also reported on another foreign father in Japan who won the right to have three hours of visitation per year with his children. Astonishingly, although the father appealed, so did the mother claiming that three hours a year is too much.

Prospects for left-behind dads whose children are in Japan are bleak. Japanese law makes no provision for joint custody. Usually the only way to secure results for such fathers is to find other legal ways to impose pressure on the mother.

Certainly it can be a horrible mistake to allow a Japanese parent to take children away from their home in another country for a visit to Japan. In my practice I find that it is a tough job to educate the courts in countries outside Japan as to the severity of the danger that children face if the court will not issue an injunction to prevent the proposed visit.