Tuesday, January 24, 2006

Hague Convention: Consent & Acquiescence

The High Court in England seems to have made it far easier for a child-abducting parent to prove the defenses of consent and acquiescence in a Hague Convention child abduction case than has previously been the case.

In CJ v KJ [2005] EWHC 2998 (Fam), Mr. Justice Sumner accepted the evidence of the mother, who had refused to return the parties’ 4-year old daughter to their home in Connecticut after a Christmas visit back to the parties’ original home in Wales, that the father had said that if they were ever to divorce she would get the baby and he would be left with the dog. The judge used that, plus the fact that the mother’s pending application for permanent resident status in the U.S. had not yet been approved, as key evidence to establish that the father had consented to the mother’s taking the child from Connecticut to Wales and keeping her there.

Another factor of great significance was that when the father had arrived in Wales and the mother had told him that the marriage was over, he broke down and became extremely passive. While the mother's parents advised him to fight to save the marriage, he had failed to take action and had returned to Connecticut in a state of great shock and upset. Once back home he had consulted a series of lawyers but they had advised him to attempt to reconcile with his wife rather than threaten litigation. Accordingly he did not aggressively demand the child’s return.

These were the key facts that were led the Court to hold that he had consented to the retention of his child in Wales and subsequently acquiesced in the retention.

In our opinion, the result was extremely harsh, and should be overturned on appeal, but we are admittedly biased since we have provided litigation advice to the father.

Friday, January 13, 2006

Hague Convention – Burden of Proof Case

The U.S. Court of Appeals for the Fourth Circuit has ruled – in Humphrey v. Humphrey, a Hague Convention child abduction case concerning the removal of children from England to Virginia – that a federal district court in Virginia committed a fundamental error when it held that the left-behind father must establish the children’s habitual residence in England "beyond a reasonable doubt."
The International Child Abduction Remedies Act ("ICARA") requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that, among other things, that the children were "habitually resident" in petitioner’s country of residence at the time of their removal.
The Fourth Circuit sent the case back to the district court for a rehearing at which time the correct standard must be applied.

Sunday, January 08, 2006

English Divorce Law in Turmoil

England is a forum of choice for spouses with less assets to sue their internationally-connected wealthier spouses for divorce.

Until 2000 the English courts divided a married couple’s assets in a way that would ensure that the “reasonable needs” of the financially weaker party — usually the wife — were met. It meant that the spouse who had more assets in his name than his wife was able to keep most of them.

Everything changed in the famous case of White v. White. England’s top court, the House of Lords, ruled that the lower appeal court, the Court of Appeal, had got it all wrong for 25 years. The House of Lords ruled that it was wrong to limit a wife leaving a long marriage to no more than was needed for her “reasonable needs.” From now on, everything was to be determined by “fairness.” The problem is that “fairness” is an elusive term.

Then a famous soccer star, Ray Parlour, was ordered to pay his wife one-third of his future earnings for at least four years, plus a large lump sum, two valuable mortgage-free houses and a large annual sum for child support.

And in a case that has caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received a payoff of £5m for less than three years of a childless marriage in her divorce last year. The House of Lords will hear that case, Miller v. Miller, on January 30th.

The surprising situation in England results from several peculiarities of the English system.

The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married. This is in sharp contrast with most legal systems which say that whatever you have on the date of the marriage stays yours unless you take specific steps to give it to the marital partnership.

The second difference is that the English courts place one party’s inherited assets into the marital pot.

Third, the English courts allow fault to govern the fairness issue. This allows each party to assert that the other party was the “wrongdoer” who should be financially punished for breaking up the marriage.

Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.

Fifth, England uses the concept of the ‘clean break’ as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but well nigh impossible to put into practice.

Finally, to make matters even more unpredictable, prenuptial agreements are not legally binding in England, so that it is difficult or even impossible for a wealthy person to provide himself with predictable protection if he is considering marriage.

Now divorce lawyers and wealthy individuals are looking to the House of Lords to provide some clarification and fairness.