Wednesday, October 31, 2007

"Ireland's Divorce Courts a Shambles"

Ireland's divorce courts are overloaded and need a complete overhaul to make breaking up fairer and less of a bank-breaking ordeal, an expert report on the secrecy-shrouded system concluded Tuesday. The government-commissioned report, which offered 45 recommendations to fix the system, faulted the government for doing much too little since the 1997 legalization of divorce in this predominantly Roman Catholic country. Justice Minister Brian Lenihan vowed to make improvements a priority.

The author, Irish Times reporter Carol Coulter, was the first outside expert permitted to witness divorce cases, which are typically conducted without transcripts or detailed written judgments. She spent a year gathering data and testimony on proceedings normally barred to media and other spectators.Her 82-page report said it was common for crowds of breaking-up couples and their lawyers to be kept waiting around court all day — only for their day in court to be put back for months, even in cases involving a child's welfare. "They must then steel themselves to go through it all again," she said.

Coulter said the problems and potential miscarriages of justice were greatest in provincial towns, where courts set aside time for matrimonial cases only four days out of every month, or less."The pressure on the lists forces judges to try to cram as many cases as possible into a day. In such circumstances it is impossible for written judgments to be given, or even for an outline to be given of the judge's reasons for making his or her orders," she wrote.

Throughout the country, she said, the system discouraged people from solving their cases through mediation or other means short of a courtroom confrontation. High legal costs forced some people to represent themselves, slowing down business further."According to some practitioners and court staff, in places where delays are very long, people can end up settling on terms they are unhappy with, just to bring an end to the proceedings," she said, adding that some judges worked marathon sessions from 10 a.m. to 9 p.m. to try to catch up.The wishes of children often were not taken directly into account, even though internationally it is common for children's views to play an important role in determining custody, she said.

She said judges, hobbled by a lack of written judgments for reference, "expressed to me their own frustration at the lack of education and training for judges, and at the difficulty in discovering what their colleagues' understanding and practice of family law is."Irish law permits a couple to file for divorce only after they have been separated for a minimum of four years, a rule intended to give them time to reconcile. Divorce lawyers say this rarely happens. But the delay does encourage more protracted court proceedings involving separate court hearings for separation and divorce.

Tuesday, October 30, 2007

Tuesday, October 30, 2007

India Marriage Registration Call

The Times of India has endorsed a demand by the Supreme Court of India that all marriages in India be registered. In an editorial the newspaper states that:

Marriage law is a touchy issue in India, especially for leaders of the Muslim community. The shadow of common civil code looms over any prospective legislation on the subject. That explains the resistance on the part of the All India Muslim Personal Law Board (AIMPLB) towards the Supreme Court’s call to make registration of marriages mandatory for all Indians. The AIMPLB doesn’t want the law to be made mandatory for Muslims. A few states have obliged the AIMPLB and exempted Muslims from the purview of the law. The SC wants the exemption removed and for valid reasons.

Registration of birth, death and marriage with state authorities is an essential feature of a modern society. The first two have been institutionalised in India, while the third hasn’t. Most marriages are conducted under personal laws or according to religious rites. The Supreme Court has not asked for a common marriage law but wants all marriages to be registered with state authorities. The apex court’s order is based on the reading that the voluntary option regarding registration makes it difficult to enforce laws prohibiting under-age marriage and polygamy. In the absence of proper records, unscrupulous husbands can deny marriage and leave spouses in the lurch on matters of inheritance of property and maintenance.

The opposition to marriage registration is misplaced.

Organisations like the AIMPLB argue that records of marriages are available with clerics and so it is unnecessary to insist on state registration. They fear that a registration law could undermine the importance of religious institutions in the conduct of marriages. But will it trump personal laws concerning marriage and divorce? That may not be the case, though civil authorities could hereafter have a more influential role in these matters, especially in the event of a dispute. And there is nothing wrong with that.

Issues like marriage and divorce can’t be discussed purely in the framework of religious injunctions. They concern civil rights and common laws that codify them are necessary in a modern society. But uniform civil code has always been a contentious issue in India. Ideally, the legislature should take the lead and create a consensus in the society towards a uniform civil code. Its failure to do so has allowed courts to step in and direct the executive to have laws that reduce the influence of social and religious institutions in matters of civil rights. The legislature should take a cue from the Supreme Court.

Thursday, October 25, 2007

Korea’s New Family Registration Law

The South Korean Supreme Court has issued details of its implementation of the new family registration law, which will take effect on January 1, 2008. The new system will replace the traditional “hoju” system, which the Constitutional Court in Korea declared unconstitutional as violating the right to gender equality.

The current hoju system places only a male member as the legal head of the family with all family members listed under the hoju. The status of each family member is defined in terms of his or her relationship to the hoju. When a husband dies, he is usually succeeded by his first son, not by his wife. When a daughter gets married, she is removed from her father's hojeok - family register - and transferred to her husband's. Children are automatically added to the father's hojeok. Even when a couple divorces and the mother retains custody of children, the children keep the father's surname and remain in his hojeok unless he gives permission to transfer. A family without a son naturally means the end of a lineage.

Under the new system, the core concept of a hoju will be discarded, as will the hojeok. Every family member will be registered under his or her own new individual record book, which will contain information on the person's birth, death, marriage and adoption, along with basic information on his or her spouse, parents and children. The new registration system will allow offspring to use the name of the mother with the mutual agreement of both parents at the time of marriage registration. It also will enable a child to change his or her surname in accordance with the stepfather and with court permission, even without agreement from the biological father. Also, extramarital offspring registered under the mother with the mother's family name will no longer be obliged to move to the father's registration or change his or her surname in accordance with the father.

Until now, adopted children and stepchildren had no rights to inheritance and certain rituals, called jesa, of honoring deceased parents. Upon the effective date of the new law, stepchildren will have the same legal rights as the stepfather's biological children, following the family name of the legal father and registered as such, when the mother and father are married for over one year. A person adopted by a couple married for over three years will also have the same legal rights on condition that the biological parents agree. Anyone under the age of 15 will be eligible.

While the new system is expected to greatly enhance the right of Korean females, the public is bracing for confusion as it will have far-reaching influence on both family life and the nation's concept of a family.


Sunday, October 21, 2007

Mahr – Islamic Marriage Contract – Held to be Not Enforceable

An Ohio court has reportedly ruled that a promise made as part of a mahr – a dowry gift given by the groom to his bride upon an Islamic marriage – could not be enforced at law.

The Ohio Case The case in Ohio stemmed from the marriage of a Muslim couple – the bride living in Ohio and the groom from Ireland. The bride’s father and the groom agreed on the terms of the mahr contract immediately before the marriage. Pursuant to the written one-page marriage contract, the groom gave his wife as a dowry a gold bracelet, a ring and a promise of a $25,000 payment. Less than two years later, the marriage was over.

In court, the wife argued that the mahr should be considered as a prenuptial agreement and the bride demanded enforcement of the promise to pay $25,000. Judge Dana S. Preisse in Common Pleas Court, Domestic Relations, Franklin County, Ohio refused to do so. She ruled that because "the obligation to pay $25,000 is rooted in a religious practice, the dowry is considered a religious act, not a legal contract. She held that a prenuptial agreement must be entered into without duress or coercion. In this case, she said, the agreement was made just a few minutes before the wedding ceremony, and the husband did not have time to consult an attorney. Furthermore, a prenuptial agreement is designed to protect a person's assets in the event of a divorce. By contract, the mahr was designed to give the wife money in addition to whatever assets she owned, so that it could not be considered a prenuptial agreement.

Other Cases Cases concerning mahr agreements – some domestic and others entered into overseas – have been litigated in several U.S. courts. The agreements have occasionally been upheld but only when presented as a simple contract and not as a prenuptial agreement. The distinction and application of the principles is well illustrated by two New Jersey cases.

In Odatalla v. Odatalla 810 A.2d 93 (N.J. Super.Ch. 2002), the Superior Court of New Jersey stated: “Why should a contract for the promise to pay money be less of a contract just because it was entered into at the time of an Islamic marriage settlement?” The court found that under the doctrine of “neutral principles of law,” it could enforce the agreement’s secular components – specifically a promise to pay $10,000. The wife presented the parties’ wedding video showing two families negotiating the terms as an imam prepared the document, which everyone read before signing. The judge concluded that it was “nothing more and nothing less that a simple contract between two consenting adults. It does not contravene any statute or interests of society.”

By contrast, in Attia v. Amin, New Jersey Ch. Div., June 12, 2006, the court is reported to have held that the requirements of a valid contract had not been met since the amount of the payment was inequitable and the defendant had signed the agreement under duress, fearing that, if he did not do so, the marriage would not take place and that he would be deported. In an interesting additional argument, the court reportedly relied on testimony of the husband's expert witness that a mahr is valid only if the wife is not more than 50 percent at fault for the divorce. The judge held that since the wife had made false charges of terrorism against the husband and had even called the FBI against him she was more than 51 percent at fault, which voided the mahr.

So When is a Mahr Enforceable?

Clearly a mahr is not a prenuptial agreement as that term is understood in American law and as understood through most of the world. It does not resolve the financial obligations between spouses – even parties to a Muslim marriage – under the civil law under American law. But it might create a claim to a specifically agreed sum of money if it constituted a valid contract.

Finally it should be noted that the Ohio case has prompted the imam who married the couple to change how he performs weddings. It is reported that from now on, he will make the husband sign a promissory note for the mahr, as well as the marriage contract, in order to make the promise more enforceable in the civil courts.

For more on international prenuptial agreements see our website section. For more on Islamic marriage and divorce see our website section

Monday, October 15, 2007

Czech procedure for Hague Convention international child abduction cases

International child abduction cases in the Czech Republic will be assigned to ten specially-selected judges at the Brno District and Brno Regional courts, if a bill that was presented by the Czech Justice Minister Jiri Pospisil is adopted.

The bill would create internal Czech rules for such cases that are brought under the Hague Convention on the Civil Aspects of International Child Abduction. The judges would have to decide whether a child abducted by one of the divorced parents will be returned to the country of origin or not within six weeks. So far, Czech courts have failed to meet the six-week deadline recommended by the Hague Convention.

"We expect in the future to deal annually with up to one hundred cases of international abduction, but our courts are not yet prepared to do so," Pospisil said. At present, individual Czech courts deal with only about ten such cases a year. Under the bill, special judges will be selected who will exclusively focus on the question of whether a child is to be returned or whether it would be better for it to remain in the country to which it was abducted, Pospisil said.

Various Czech experts interpret the condition under which a child should not be returned differently. The Justice Ministry wants to unify their positions. A two-day expert conference that Pospisil opened today is designed to contribute to it.

The amendment to the rules of civil procedure that is to speed up court proceedings on child abduction has been sent to relevant bodies for comments. The government is to receive it till December and parliament is to start debating it as of January, Pospisil said. He said the amendment could take effect next year already.