Thursday, November 29, 2007

German divorce, Syrian marriage


An interesting German international family law case concerning a Syrian marriage has been summarized by Jurgen Basedow and Simon Schwarz.
A Syrian couple filed for divorce before German courts whose jurisdiction was established under Arts. 1(1)(a), 2(1)(a) of the Brussels II-Regulation since the spouses had their habitual residence in Germany at that time. An important incidental question (Vorfrage) was whether there was a valid marriage under the applicable Syrian law at all.
More interestingly, however, appears to be the court’s subsequent reasoning as regards the possibilities to dissolve the marriage in case it had been formed validly. German private international law referred this question to the law of the spouses’ common nationality, i.e. Syrian law, whose internal conflicts regime pointed to the religious law of each of the spouses.
According to the pertinent provisions of the applicable canon law it was likely that the marriage could not be dissolved at all.
The BGH held that such a result would manifestly be contrary to German public policy (ordre public). In doing so, the court explicitly overturned its former leading cases which dated from the 1960s and still approved of the impossibility of getting an divorce under an applicable foreign law.
In his thoroughly motivated judgment the BGH explains that the ordre public is by no means a static and absolute rule but rather has to be interpreted in the light of the changing social and legal environment. In his reasoning, the BGH particularly accounted for the legal developments in foreign countries and pointed to the fact that the German ordre public is becoming more and more European rather than a purely domestic yardstick.

Bundesgerichtshof (BGH – Federal Court 26.9.2006 11.10.2006, case XII ZR 79/04 (available at : www.bundesgerichtshof.de ; published in : BGHZ 169, 240 ; FamRZ 2007, 109 ; NJW-RR 2007, 145)

Monday, November 26, 2007

Hague Convention on the International Recovery of Child Support


Delegates from sixty-eight States and the European Community have finalized the Convention on the International Recovery of Child Support and other Forms of Family Maintenance at the 21st Diplomatic Session of the Hague Conference on Private International Law.

Basically, the states that ratify the convention agree to assist citizens from other states who have also ratified the convention to recover child support.

The United States immediately signed the Convention, the first (and, thus far, only) State to do so.

The following are some extracts from the press release that was issued at the beginning of the Diplomatic Session:

"A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."

Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair."

Tuesday, November 13, 2007

When Is a Saudi Woman Considered an Adult?


Maha Akeel, Arab News. Nov 2, 2007

It is surprising and frustrating to see that women in Saudi Arabia, despite all their achievements, continue to be treated as underage dependents who need and are forced to be managed by their male guardians.

It is necessary at this point of Saudi women’s history to address this important issue.

We cannot claim that a Saudi woman has all her Islamic and civil rights when the system insists on considering her immature, irresponsible and dependent on her male guardian no matter how old she is, how highly educated and intelligent she might be or what she has achieved in her professional career. At what age and under what circumstances is a woman in Saudi Arabia considered an independent, sane, responsible adult?

We see story after depressing and humiliating story in our daily life and reported in the newspapers of how women struggle to go about their normal life without unnecessary complications, let alone fighting for their rights in the courts or other government institutions. Why does a young intelligent, ambitious woman needs her guardian’s permission to enroll in a university or apply for work? Does the system even realize that this male guardian does not necessarily have the best interests of the woman when he denies her the right to an education and a job?

At what age is a woman considered old enough to decide to marry whom she chooses legally even if her male guardian objects because he might have ulterior motives for not giving his permission, or might force her to marry someone she does not want? Why is it that the system and society do not raise objections to a father marrying his 13-year-old daughter to a 70-year-old man but objects to a 40-year-old woman deciding to marry someone suitable against her father’s wishes because he would like to continue benefiting from her teacher salary? Or why does a court forcefully divorce a happily married couple because some male relative of the wife objects to the marriage while in another case a woman is forced to stay married to a man she does not want? Where is taking the woman’s own opinion in the matter? Doesn’t an adult, mature woman have a say in matters concerning her own private life? Why is it only the man’s wishes are looked at?

If these are some extreme and rare examples of male guardians abusing their authority over the women in their care, what about the daily obstacles women face if they want to purchase property, apply for divorce, gain custody of their child, or travel abroad? In all these cases, she needs a male guarantor or a male representative or permission from her male guardian. A working woman with sufficient salary and funds cannot purchase a car in installments without a male guarantor signing the papers with her. A woman cannot argue her case without a male representative or finalize legal procedures because judges do not recognize her ID card and insist on two men identifying her. A woman, even a 70-year-old woman, cannot travel abroad without the written, signed and notarized permission of her male guardian, who might be her son or nephew. Is this the respect we give our mothers, and we know how highly respected mothers are in Islam?

Simply going to school or to work or going to a hospital for medical emergency or even shopping is an ordeal for women because we have to worry about how we will get there without that “reliable” male driver we so depend on who might be a criminal or a pervert. How can we trust a woman to raise a child, teach our children and treat our illnesses but we cannot trust her to be a responsible adult behind the wheel? We have asked for our right to be licensed to drive a car like any other Muslim woman in the world because we know there is no religious basis for denying us that right.

Yet, we are told that society would not accept women driving on the roads. Assuming that is true, what is being done about that? Are there any real proposals from society to make driving by women easier and safer such as, for example, discussions in schools, training women to be police officers on the roads and in police centers, setting an age limit or hours of the day or specified zones for women to drive in or even, resorting to the same requirement, having her male guardian’s permission to drive?

Again, the issue is at what age and under what circumstances does the system and society recognize a woman as a responsible, independent adult who can make her own decision and choices and have full rights as a citizen?

New Jersey Hague Convention Case

She's only 7, a schoolgirl from Elizabeth, but Arianna Adan soon may change state, national and even international law. Legal briefs filed by two state agencies, a coalition of national organizations and her mother's lawyers seek not only to block Arianna's deportation in an international custody case, but also to change the way the United States abides by the Hague Convention, a treaty designed to end cross-border abduction of children by their parents.

One powerful argument was filed by New Jersey's Office of the Child Advocate, which joined the case to obtain a ruling requiring federal courts to appoint lawyers to represent children caught between feuding parents in international disputes. "The court has an obligation to ensure the protection of the child's compelling interests, which require the appointment of a guardian ad litem," the child advocate's office wrote, using the legal term for an independent lawyer named to represent a minor.

Federal courts should take the step, the state agency argued, in all disputes in which --as in Arianna's case -- the issue of possible harm to the child is raised. Courts have discretion to name a guardian, but often don't, letting warring parents represent children. The brief argues only independent representation can protect "the fundamental rights of all children to be free from physical or psychological harm."

Arianna is an American, born here. Her mother, Elena Mazza, also American, fled Argentina in 2004 after, she says, Arianna's father abused them and local police did nothing. The father, Ariel Adan, an admitted drug-abuser who twice pleaded guilty to state domestic violence charges, denied abusing Arianna. Mazza and Adan are not married.

Federal Judge William Walls twice ordered Arianna's deportation to Adan's homeland where, he said, local courts should determine custody. Walls' first ruling was overturned by the 3rd U.S. Circuit Court of Appeals, which is now reviewing his second decision.

A coalition of groups, many federally funded, also is using Arianna's case to try to change the way this country abides by the treaty -- ratified by the United States in 1988 -- governing international custody disputes.

Most federal courts narrowly construe their role, refusing to return children to the countries from which they were abducted unless they find "grave risk of harm," often interpreted as returning children to a war scene. But women's groups have argued courts must consider the possibility the children were rescued from an abusive parent rather than abducted.

The organizations joining Arianna's case want federal courts to recognize that a child's mere witnessing of domestic violence would be enough to cause harm. The groups include the National Center on Domestic and Sexual Violence, the Battered Women's Justice Project, the Advanced Special Immigrant Survivors Technical Assistance project, the New Jersey Coalition for Battered Women, and the Seton Hall Law School Center for Social Justice. They also argue courts should not return a child to a nation where an abusive parent might win custody because it would violate "fundamental principles of American public policy, which seek to protect child victims from exposure to their abusers."

Adopting the view would dramatically broaden how American courts have treated Hague Convention cases in the last two decades. So would embracing an argument in another brief filed by state Attorney General Anne Milgram for the state Department of Children and Family Services. The state attacks a problem faced by abused women who escape from a nation where paternalistic traditions favor men's rights. Here, fathers can lose custody rights for many reasons; in places like Argentina, those rights rarely are lost.

Walls cited those rights in ordering Arianna to Argentina. Milgram turned the argument around, saying the very difficulty in overturning Adan's rights there meant the child was safer here. "Such differences in procedure which lessen the protections a child receives can themselves preclude the return of a child," the state brief argued. If adopted, such a view also would be a major change in how federal courts have ruled. They have ignored state doctrines like "the best interest of the child." Adan has a month to file a reply.

Star-Ledger, Monday, November 12, 2007


Thursday, November 08, 2007

Top Ten Tips for Expats


… From an International Family Lawyer

by Jeremy D. Morley

Here are some of my “international family lawyer’s best tips” for international clients moving overseas and for expatriates.

  1. Before you move overseas, realize that if you have children in a new country you may find yourself trapped there. An example: Angie the American and Gus the Greek (from Cyprus) moved to Cyprus with their baby. Life in Cyprus didn’t work out for Angie. In fact, she hates it there. But Gus refuses to leave and he refuses to allow Angie to take the baby back to the States to live. Since both Cyprus and the U.S. are parties to the Hague Convention on the Civil Aspects of International Child Abduction, Angie will be in big trouble if she takes the child back to the States without Gus’ permission. Angie wishes she had consulted an international family lawyer before she moved overseas. Now she’s stuck there. See our articles on the Hague Convention listed at our main page on international child abduction.

  1. If you make a deal with your husband or wife that you’re going overseas just for a trial and that you’ll return if it doesn’t work out – Get it in writing. Verbal agreements always seem to be forgotten when things blow up. But also know that even a written agreement may not work. A foreign court handling your child custody case may well that it doesn’t care what your deal with was with the other parent; it must only consider what’s best for the kids.

  1. Before you switch residences, consider how it might impact a possible divorce. An example: Arnie and Alice in America signed a prenuptial agreement before they married. Not only that, but Arnie made pretty sure that it was watertight not only by having it drafted by his own lawyer but also by insisting that Alice have her own independent lawyer, and by putting terms in the agreement that are pretty fair to Alice. Arnie feels secure. Then they move to London, England oblivious of the fact that their prenup may well be unenforceable in a divorce court in England. English courts still hold that prenuptial agreements are against public policy and, while this policy is supposed to be changing, it most certainly hasn’t changed yet. See our article on this topic - Enforceable Pre-nuptial Agreements: the World View. To make matters much worse for Arnie (who had bags of money before the marriage and thought he was fully protected by the prenup), there is no solid distinction in England between marital property and separate property acquired before the marriage. See our article - English divorce law: Divorced from reality. He could be blowing half of his pre-marriage assets just by moving the family to England.

  1. Before leaving home, you should hope and plan for the very best. But you also need to be prepared for the very worst. So if you are a “trailing spouse,” consider the following:

· Don’t sell the house. If you maintain an address in the States it will be easier to claim that you maintained your home as your permanent residence. Certainly it will indicate that it continues to be your “domicile” (the place you live in indefinitely which remains as your domicile even if you move temporarily to another place remains your home. Having a place to return to will also make your case a lot stronger if you need to prove that your kids should be allowed to move “back home.”

· Keep your contacts with your job. Prepare for the day when you may want to re-enter the job market back home. Perhaps you can even continue to do some work even while overseas.

· Keep your network of friends and family at home.

  1. If you’re overseas and are “planning” to get divorced, be as strategic as possible. Plan your moves. Consult someone who really understands the big picture. Figure out where it’s best for you to be at the time you tell your soon-to-be-ex that it’s all over. You may need to move yourself, the kids, the soon-to-be-ex and the marital assets to another place before you break the news that you want out of the marriage. And don’t leave without the evidence. It’s very frustrating when a client tells me a story of the other spouse’s gruesome physical abuse and shameless hiding of marital assets and when I ask for the evidence I’m told that it was all left behind in the foreign country before the client came back home. Intelligent planning, with strategic professional advice, is the key.

  1. If you’re feeling stuck overseas and have children with you, don’t just bolt for the (airplane) door with the kids and run ‘back home’ to the States. Plan things out first. If you take the kids you may be guilty of international child kidnapping. You could even be arrested at the airport before you leave. If you make it to the States, you’ll probably be forced to return by an American court – and then, to completely add insult to injury, you’ll probably have to pay your spouses’s legal fees and travel expenses as well as your own. When you return your case will be heard in the foreign court, where you will be branded as an international child abductor. Consult knowledgeable international family law counsel sooner, rather than later.

  1. On the other hand, if it’s your spouse who’s feeling unhappy and upset and who may “do a runner” back home, there are lots of things that you should be doing. Some are pretty obvious: Be kind; be understanding; and don’t stay out all night with the guys or gals from the office. Other tips are not so clear, and whether you implement them depends very much on the circumstances. Hide the passports. Befriend her travel agent, who may tell you if she’s making an airline reservation. Consult her friends. Suggest counseling. Have a plan to call the police and alert the border guards if you discover that she has taken the kids.

  1. If you’re overseas and pregnant, and not 1000% confident that you’ll always want to live in the overseas country, consider very seriously getting out of there now. If your baby is born overseas, whether in Sweden or Saudi Arabia, the child’s “habitual residence” for purposes of the Hague Convention will be Sweden or Saudi Arabia – and that can create terrible problems if you want to take your baby “back home.”

  1. Don’t assume that the local authorities won’t help. So many times, expats feel that the local social welfare agencies won’t understand and that they will automatically side with the other spouse who is a citizen. In fact, in many countries the support services are excellent and you should try them. Plus, an American court in a Hague Convention case might not accept your defense that returning a child to the foreign country will put the child in grave risk of harm unless you can show that the foreign support services are unable to provide the needed protection.

  1. Local divorce lawyers may not be your best bet. They want your business. They have an incentive to encourage you to bring your lawsuit in the place where they practice and they usually don’t know anything about the laws in other places. An international divorce lawyer, who consults with local lawyers as appropriate, can give you much more objective “big-picture” advice.

AND ...
Consult a good international family lawyer.

Monday, November 05, 2007

Fundraiser for Film on Japanese Child Abduction


Two film-makers, David Hearn and Matt Antell, are working on a film project to draw attention to the scandal of parental child abductions to Japan and in Japan.

They are conducting a fundraiser for their film to be held in Tokyo in December at the Pink Cow restaurant (http://www.thepinkcow.com/NewMap_e.htm) in Shibuya on December 11th starting at 7:30. Tickets cost 10,000 yen. Come watch the new trailer, hear discussion from experts and meet left behind parents.

Their website is www.fortakaandmana.com

This is a subject that we have written on extensively.