Thursday, May 24, 2007

English Court Wants Enforceable Pre-Nuptial Agreements

The English Court of Appeal has dismissed the husband’s widely-publicized appeal in a so-called 'big money case' of an award to his wife of 36% of the matrimonial assets. Charman v Charman, [2007] EWCA Civ 503.

In a special conclusion entitled “Post-Script: Changing the Law,” the Court went out of its way to encourage the Government to change the law so as to provide greater predictability. In particular, the Court focused on the need to clarify the English law concerning prenuptial agreements.

The Court stated that:

“The difficulty of harmonising our law concerning the property consequences of marriage and divorce and the law of the Civilian Member States is exacerbated by the fact that our law has so far given little status to pre-nuptial contracts. If, unlike the rest of Europe, the property consequences of divorce are to be regulated by the principles of needs, compensation and sharing, should not the parties to the marriage, or the projected marriage, have at the least the opportunity to order their own affairs otherwise by a nuptial contract? The White Paper, "Supporting Families", not only proposed specific reforms of section 25 but also to give statutory force to nuptial contracts. The government's subsequent abdication has not been accepted by specialist practitioners. In 2005 Resolution published a well argued report urging the government to give statutory force to nuptial contracts. The report was subsequently fully supported by the Money and Property Sub-Committee of the Family Justice Council.”

Tuesday, May 22, 2007

Registration of Children Born after Divorce Begins in Japan

A new registration system under which municipalities accept babies born within 300 days after a divorce as the child of the mother's new husband started Monday. The measure, however, requires doctor certification proving conception happened after the divorce.

The Civil Code stipulates a baby born within 300 days of divorce is the former husbands' child without exception. The new system is an exceptional measure based on an instruction by the Justice Ministry. According to the ministry, there had been 20 cases of birth notification being submitted as of Monday in 13 prefectures, including four in Tokyo and three each in Kanagawa and Hiroshima.

In Sumida Ward, Tokyo, a couple with a baby unregistered since the couple's marriage visited the ward registration counter Monday morning and submitted forms to register the baby's birth. The baby was born at the end of last year. The mother, 38, said: "I'm relieved because my son can be registered like most other children. I feel I should apologize to him for keeping him waiting to be registered."

According to the ministry, there are at least 2,800 babies born each year within 300 days following a divorce. But 90 percent of such children are believed to be conceived before divorces are official and are not covered under the new measure.

A lawmaker-initiated legislation studied the issue of conception before divorce, but was passed without the consideration due to moral considerations brought up by the Liberal Democratic Party. The ruling parties currently are discussing other measures to address the issue.


Doctor certification hard to get

Some have pointed out that obtaining a doctor's certification under the new system is difficult. A couple in Tokushima Prefecture, who had their eldest son three years ago, had to wait a month to submit divorce papers the woman's former husband had filled out. The child was conceived shortly after the divorce was made official, but the woman said it could be deemed as happening before the divorce because the assumed period of pregnancy in doctor's certification was short. Her husband, 33, said, "I hope the government becomes more flexible on pregnancies following divorces."

A man in Kobe whose situation is not covered by the new system said: "It's too bad we can't still register our baby. I'm waiting for the whole system to change, but this is a start."

The Yomiuri Shimbun (May. 22, 2007)

Friday, May 18, 2007

Ireland - Financial Settlements in Divorce Cases Can be Re-negotiated at any Time

A MOTHER of five has won an extra €2 million in a shock divorce ruling that could force ex-partners to pay their former spouses additional monies if their wealth increases after they split up.

The High Court judgment means financial settlements in divorce cases can be re-negotiated at any time and also means ex-partners are liable for maintenance even after they die.

Last night, legal experts said the ruling creates a new precedent in Irish divorce law, obliging ex-partners to support their former spouses for life, making full and final agreements impossible.

“In the past it was suggested that the opportunity for further provision in a divorce settlement ended with the granting of the decree of divorce,” said family law expert and solicitor Geoffrey Shannon. “This case suggests that this might not necessarily be the position. This means parties in divorce cases can effectively get another bite of the cherry after their divorce and it will send shivers down the spine of those who think their settlements are final.”

The case centres on a pair, who cannot be named for legal reasons, who married in 1979, had five children and divorced in 2000. At the time of their divorce, the court ordered the businessman husband to pay £48,500 a year to his wife and children. The settlement was based on his wealth at the time of the divorce but after the split he sold his business and became richer. The High Court ruled the man must pay his wife a one-off lump sum of €2m to reflect this increase.

Previously, parties in marriage breakdowns could come to a financial settlement at the first stage of splitting up — the decree of judicial separation — or the final step called a decree of divorce. The agreement made at the time of a decree of divorce was thought to be final but the High Court has now said settlements can be re-negotiated as ex-partners have an obligation to support their spouses for life.

Mr Shannon, whose book on 10 years of Irish divorce law comes out this year, said the ruling would benefit ex-wives struggling to support their families. “What you are looking at is divorce Irish-style and it’s different from the reality in other jurisdictions because we have a life-long spousal support obligation,” said Mr Shannon.

Tuesday, May 15, 2007

Hague Abduction Convention: No Appeal from Denial of Summary Judgment Motion

The First Circuit has ruled that the denial of a petitioner’s motion for summary judgment in a proceeding for an order directing the return of a child pursuant to the Hague Convention on International Child Abduction is not appealable. Rigby v. Damant 5/15/2007. The mere fact that the case ultimately sought injunctive relief did not mean that the denial of a motion for such an injunction decided on anything that touched on the ultimate relief. Nor was mandamus review warranted.

The Court addressed the basic issue that summary judgment motions might help to expedite Hague cases in line with the directive in the Convention that judicial proceedings should be completed if possible within six weeks. The Court stated that Article 11(2) of the Convention provided the appropriate solution for any such delay. However, that provision merely authorizes an applicant or Central Authority to “request a statement of the reasons” for any delay.

The decision highlights the difference between the practice in the United States, in which full hearings are usually required in Hague cases, and that in jurisdictions such as the U.K., where Hague cases are typically decided much faster and primarily on a review of the submitted papers.

Tuesday, May 08, 2007

Venezuela “Noncompliant” with Hague Child Abduction Convention

The U.S. Department of State, in its 2006 Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction, has declared that Venezuela is “noncompliant” with the terms of the Convention.

The report states that: “Venezuela was not mentioned in the 2005 Convention compliance report because there were no active cases during the time frame covered by the report. For the period covered by the 2006 report, however, serious compliance problems became evident. The Venezuelan Central Authority (VCA) typically failed to be responsive to inquiries by the USCA, U.S. Embassy Caracas, or left-behind parents. The USCA is not aware of any judicial training program for judges or prosecutors. Applications are not handled by the VCA in an expeditious manner nor are any measures being taken to improve processing of applications. Long delays in case proceedings are indicative of larger systemic problems in the Venezuelan court system. For neither of the two outstanding cases during the period of review was a court hearing scheduled. One case, now more than a year old, has never been heard in court, and in another case, a voluntary return was accomplished after ten months (no court hearing was held). With regard to enforcement of return orders, under Venezuelan law, parents can be subject to imprisonment and fines for not complying with court orders. With no cases heard during the rating period, however, there were no return orders issued or enforced. U.S. Embassy Caracas met with officials from the Ministry of Foreign Relations twice during the reporting period to discuss problems with case proceedings, once in May 2005 and again in September 2005, but no substantive information was received as a result of these efforts. As a result the USCA has determined that, during the most recent rating period, Venezuela was “noncompliant” with regard to its duties under the Convention.”

Tuesday, May 01, 2007

Child relocation to Japan

Custody dispute crossing borders: Mom wants to take daughter to Okinawa

Newark Star-Ledger, May 01, 2007

The state Supreme Court will hear oral arguments today in a Hillsborough child custody case with international implications.

After the breakup of her marriage, Erika MacKinnon wants to return to her homeland, Japan, along with her 7-year-old daughter. A network of relatives and better job prospects should translate into a better life for mother and child, according to her attorney.

Erika's ex-husband, Ronald MacKinnon, challenges that notion. Relocating the child to her mother's hometown on Okinawa could make it difficult, perhaps impossible, for him to visit her, he said.

Unlike North American and European countries, Japan never signed the major treaty on child custody issues, the Hague Convention on the Civil Aspects of Child Abduction.

"Japan will not recognize foreign custody orders or foreign ar rest warrants in child abductions," said Walter Benda, a Virginian who came home 11 years ago to find his ex-wife had taken their two daughters to Japan.

"I don't think there's much you can do ... if the Japanese parent doesn't want to act in good faith," said Benda.

Jeremy Morley, a New York lawyer specializing in international family law, said he is "very frustrated" by the haphazard response of American courts.

"What the court needs to appreciate in this type of case is that if a child goes to Japan, and the custodial parent wishes to keep her there, it could be the last the other parent will ever see of her," Morley said. "Some courts recognize that, some do not."

While there have been high-profile cases elsewhere involving abductions to Japan, Saudi Arabia and Egypt, the issue is a new one for New Jersey.

"The precedent in New Jersey is a case involving a parent who moved to Wisconsin," said Michele D'Onofrio, who represents Ronald MacKinnon. "That doesn't fit the facts of a case where a parent wants to take a child halfway around the world."

For that matter, the idea of "abductions" does not fit this case either, said Christina Reger, Erika MacKinnon's attorney. Rather than bolting for Japan, her client has dutifully gone through the American legal system, prevailing in the lower courts, she said.

"She was only 19 when she came to this country" in 1991, after meeting Ronald MacKinnon when he was stationed on Okinawa with the Marines, Reger said. Erika held a series of low-paying jobs while her husband worked construction, she said.

"She has absolutely no family here, no support group, limited financial prospects," Reger said.

In contrast, Erika MacKinnon's fluency in English opens many opportunities in the Japanese job market, and her mother and sister can help with child care, Reger said.

Moreover, since the girl was born, Erika MacKinnon has taken her to Okinawa for extended stays every year, Reger said. Even when Ronald called her in the middle of one of those trips to say he was leaving her for his high school sweetheart, "they still came back," she said. …

"The court should reconsider reopening the case to take testimony on that point," Morley said, and possibly require a bond be posted to pay for the trips.