Wednesday, December 17, 2008

English Court OKs Post-Nups, Landmark Case

Congratulations to our victorious client, Rod MacLeod, to whom we rendered extensive advice from afar throughout his long-standing divorce case in the courts of the Isle of Man and then in the Judicial Committee of the Privy Council.

The case has resulted in a landmark decision today in favor of our client by the Privy Council, which ruled – for the first time – that post-nuptial agreements are enforceable under English law.

The Judicial Committee of the Privy Council is the court of final appeal for the overseas territories and Crown dependencies, and for some Commonwealth countries.

England’s Daily Mail summarized the facts as follows:

The ruling comes after a millionaire businessman appealed to the Judicial Committee of the Privy Council over a series of agreements before and during his marriage which set out his wife's share of a £13.8million-pound fortune.

Roderick MacLeod, 64, a U.S. businessman living in the Isle of Man, and his wife Marcia, 42, agreed a 'pre-nup' when they married in 1994 in Florida.

The agreement was amended twice during their ten-year marriage which produced five sons.

After their 2004 divorce Mr MacLeod offered his wife about £1million on the basis of their post-nuptial agreement, then he changed his offer to putting about £1.25million in a trust fund for their sons. An Isle of Man court ruled that Mrs MacLeod should receive the extra money in a lump sum.

But yesterday the Privy Council overturned that decision, ruling that there were no circumstances to justify changing the couple's post-nuptial agreement.

Courts currently take 'pre-nups' into account but they are not legally binding. However, as they become more popular, there is pressure for them to be given more force.

So where does this leave prenuptial agreements in England? They are “taken into account” and may be a significant factor in a divorce case to the extent that the English judge feels that it is proper to do so, depending on the circumstances of the case.It also means that if a prenuptial agreement is renegotiated and revised after the parties marry, it will likely be enforced.

With respect to post-nuptial agreements, Baroness Hale said that:

“We must assume that each party to a properly negotiated agreement is a grown up and able to look after him- or herself. At the same time we must be alive to the risk of unfair exploitation of superior strength. But the mere fact that the agreement is not what a court would have done cannot be enough to have it set aside.”

Respectfully, that same argument applies just as much to agreements made before marriage as it does to agreements made after marriage. Indeed, people may well have far more negotiating strength before entering the state of matrimony than after they have married and changed their circumstances. Nonetheless, even as the Court modified the law as to post-nuptial agreements, it left it to Parliament to make the appropriate changes to the law concerning prenuptial agreements.

So how should one advise betrothed international couples with an English connection who wish to know whether a prenuptial agreement is advisable and under whose laws it should be executed? The answer is that they are still in a somewhat murky legal environment as to which experienced and strategic international family law counsel should be consulted.

Sunday, December 14, 2008

Irish court: 6-year old to be heard in Hague Abduction Case

An Irish court has ruled in a Hague Abduction Convention case that a child of just six years of age should be heard by the Court in determining whether to return the child to his habitual residence in another (unnamed) European Union country. N. -v- N. [hearing a child], [2008] IEHC 382.

Ms Justice Finlay Geoghegan held that the issue as to whether or not the Court should give a child an opportunity to be heard is a separate and distinct issue from the appropriate weight, if any, to be given by the Court to the child’s views in determining any substantive issue in the application for the return of the child.
The judge also insisted that the views of the child could be significant not only for the purposes of Article 13 of the Convention – which gives the Court a discretion to refuse to order the return of the child “if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views” – but also in applying Article 12.

Article 12 is the provision according to which the Court makes the summary order for return. The Court found that a child’s views “on everyday matters as to the circumstances in which he was living before he came to Ireland, or his wishes as to his future care including what should happen on return” might be taken into account by a Court by seeking appropriate interim undertakings when making the order for return pursuant to Article 12 of the Hague Convention.

The ruling was a consequence on several particular aspects of Ireland’s position with respect to the Hague Convention.

The first is that as an EU member an Irish court in a Hague case is subject to EU Council Regulation (EC) No. 2201/2003 (the “Revised Brussels II Regulation”). Article 11(2) of the Regulation reverses the burden of proof as to hearing a child in a Hague case concerning an alleged abduction from another EU country. It provides that, “When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.”

Second, Article 11(3) of the Brussels Revised Regulation requires that, “the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.” That requirement of great speed makes it far more workable to hear a child and determine the child’s maturity after such a hearing instead of having a psychologist interview the child and prepare a report on the child’s maturity.

Third, the Brussels Regulation “seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter of Fundamental Rights of the European Union” which provides that “Children shall have the right to such protection and care as is necessary for their wellbeing. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.”

Finally, the Irish court cited English authority for the proposition that Article 12 of the United Nations Convention on the Rights of the Child must be applied in Hague cases. That article provides that:

“1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”

In Re. D. (Abduction: Rights of Custody) [2006] U.K.H.L. 51, Baroness Hale in the English House of Lords, stated that,

“Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle [that a child should be heard] is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child. It applies, not only when a ‘defence’ under article 13 has been raised, but also in any case in which the court is being asked to apply article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views.”
It must be stressed that the Irish court repeatedly emphasized that one should not confuse the issue as to the weight to be attached to a young child’s views with the issue as to whether the child should be given an opportunity to be heard. “In general, the weight to be attached to views expressed by a six year old as to the country in which he would like to live will be less than that to be attached to the views of say a fifteen year old for, inter alia, the reasons submitted by counsel for the father.”

This author is most concerned that, notwithstanding the caveat stressed by the Irish and English courts, the trend of allowing increasingly young children to “testify” to the issue of their preferred country of residency may well undermine the Hague Convention. While English or Irish courts may weigh the issues dispassionately, practitioners in this field know that courts in many countries refuse to return children who have been abducted by a local national parent if there is even a plausible reason to do so. Allowing very young children to testify on these issues provides an easy way out for many judges who would prefer not to have to send children back to their habitual residence.

Thursday, December 11, 2008

Wednesday, December 10, 2008

Israel Amends Its Divorce Law

Israel has made a significant amendment to its divorce law.

In Israel divorce is in the exclusive hands of the rabbinical courts for all Jewish Israelis – and that will continue to be the case. The amendment is to the 1973 Spousal Property Relations Law which permitted the civil family court to divide the spouses’ assets only after the rabbinical courts had granted a get (religious divorce).

Proponents of the amendment argued that the 1973 law tempted husbands to refuse to grant their wives a get so that the assets, generally in the husband's name, would not be divided between them. The division of assets also gave the husband a means to “blackmail” his wife as a condition for granting the get. The amendment will now allow for the division of spousal property prior to divorce in cases where divorce proceedings last more than one year or if it is proven that a marriage is in irretrievable breakdown, and in cases of domestic violence.

When the Knesset voted to enact the amendment last month, Prof. Ruth Halperin-Kaddari, Director of Bar-Ilan University's Rackman Center for the Advancement of the Status of Women -- who played a leading role in the promulgation of the amendment -- said that, “The Knesset has taken a major step forward in promoting women's status in Israel today. This is a day of celebration for women in Israel, for the advancement of gender equality and for the advancement of human rights in Israel.”

At a conference at Bar-Ilan University this week, Prof. Halperin-Kaddari expressed concern that rabbinical courts might attempt to fight the legislation. The administrative head of the rabbinical courts, Rabbi Eli Ben-Dahan, said that he was concerned that rabbinical courts will be unable to convince one of the sides to agree to divorce after all the property matters have been decided. He said that he was also concerned that if property matters could be settled quickly, there would be no chance to persuade the sides to reconsider the divorce. Finally he argued that secular couples, unlike religious couples, would not bother to finalize the divorce with a get once the property matters had been decided.

Friday, November 14, 2008

English Prenuptial Agreements

A critical case on English prenuptial law is currently being heard by the Judicial Committee of the Privy Council, which is the highest appeals court for UK overseas territories including the Isle of Man, where the parties live.

The current state of the law in England is that prenuptial agreements are considered as just one factor in determining a resolution of the financial claims of divorcing parties. The Law Lords in the pending case might decide to give prenuptial full legal recognition, thereby bringing England into line with most of the rest of the world.

The last time the Law Lords looked at the issue was in 1929, when they ruled that binding prenuptial contracts would contravene public policy. Obviously the world has changed dramatically since that time.

See my article on this topic at

It is possible that the court will prefer to leave the issue to Parliament. The English Law Commission is currently consulting on the issue but its recommendations are unlikely to be issued until 2012.

Stay tuned for further developments.

Disclosure: I am advising the husband in this case.

Thursday, November 13, 2008

Australia's Child Custody Law, International Relocation and International Child Abduction

This editorial (see below) in Australia’s Courier-Mail criticizes the provisions in Australia’s recently-amended Family Law Act that call for equal shared parenting orders.

The article is totally on target. However it does not address another unexpected consequence of the new law, which is that it has made it even harder than before for an expat parent in Australia to receive permission to relocate with the children from Australia back to her country of origin her marriage has ended. In turn, this appears to have created a surge in international parental child abduction cases out of Australia.

It has certainly produced great unhappiness and trauma for many expat moms in Australia who find themselves stranded with their children in Australia, far from their home country, family and friends, after their relationship with their Aussie husband or partner has ended.

Tug-of-love orders risk to children
November 13, 2008 Courier-Mail

CHANGES to the Family Law Act, broadly welcomed in their intention to ensure equal shared parenting orders when they were introduced in 2006, are creating unforseen difficulties including emotional trauma for the children of broken families.

A particular aim of the revised laws was to end an era of ambiguity which seemed to favour mothers over fathers in custody orders. Although judges had the discretion to give both parents equal decision-making powers, this was not often reflected in practice. In most cases decisions rested with the resident parent, generally the mother. The new laws embrace a presumption of equal responsibility under which both mother and father have an equal role in decisions such as education and health -- except when violence or abuse can be demonstrated.

The practical repercussions of hostile broken marriages were never envisaged. The 50-50 orders mean young children in particular compartmentalise their lives: one set of friends and sometimes a different day care and extra-curricula interests when they live with one parent; another set when they live with the other. Anecdotal psychological evidence is that children in 50-50 care risk developing higher levels of sadness, anxiety, clinginess and other mental health problems. Ideologically based changes widely believed at the time to have merit have instead, by this application, changed the focus from the best interests of the child to assuaging the self-interests of two adults whose relationship has often developed into bitterness and refusal to communicate.

The Courier-Mail's series this week on legal issues affecting Australian families has chronicled the concerns of lawyers, a former Family Court judge, psychologists and parents when the tug-of-love factor becomes the prevailing influence. Former judge Tim Carmody, SC, who has returned to the private bar after serving the Family Court for five years, said the onus to apply equal shared parenting orders was part of his reason for resigning. The 5 per cent of couples who continued to trial after filing for child custody constituted the most hostile of partnership breakdowns. Yet under the Family Law amendment, judicial orders for these couples must apply a presumption that equal shared responsibility is in the best interests of a child and consequently, a judge must "favourably" consider a further order that a child spend equal time with each parent. Whatever happened to the case-by-case judgments where the focus was on the best interests of the child rather than restricting a judge's options if everything else is equal?

Family law is complex; designed to confront the most complicated of personal relationships. It has evolved since the introduction of no-fault divorce laws in 1975. The most recent changes were well intentioned but shared parenting was never meant to focus on mothers and fathers. In the face of mounting evidence of constraints on common sense and the emergence of uncooperative parenting arrangements, the changes deserve a fresh look designed to ensure the best interests of the child are paramount.

Tuesday, November 04, 2008

Jamaica Acceding to Hague Abduction Convention

The Jamaican Cabinet has reportedly approved Jamaica's accession to the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

Jamaica joins Bahamas, St. Kitts & Nevis and Trinidad & Tobago as Caribbean countries who have acceded to the treaty.

The Convention will not be in force with the United States until the U.S. accepts Jamaica’s accession to the treaty.

Thursday, October 30, 2008

An aside about gossip

My daughter at college is suddenly most impressed with the press that I have been receiving. Not that I'm referring to quotes in The Economist or the Times of London -- mention of which received a bored "Oh Great! What else is up?" -- but to the current issue of OK! Magazine, the place for "hot celebrity gossip and photos."
The quote has me very boringly saying that, "They need to decide who is going to have primary residential custody and the other parent will get significant visitation," as well as making some other fascinating (?) observations.

But my quote is right underneath a picture of Madonna with her son throwing a tantrum and on the next page is a great shot of Angelina Jolie. "That's so cool!" my daughter breathlessly announced.

And I'm positioned between Madonna and Angelina; Guy's there too but he'll be out of the way soon. 

Friday, October 24, 2008

British Court rules Islamic Law Dscriminatory

The Independent,23 October 2008

Britain's highest court has criticised Islamic law for discriminating against women after a case in which a mother was forced to flee the Middle East for Britain to protect her son from his abusive father.

In a 5-0 ruling, the law lords said that there was no place in sharia for the equal treatment of the sexes. It would be a "flagrant breach" of the European Convention on Human Rights for the Government to remove a woman to Lebanon, where she would lose custody of her son because of sharia-inspired family law.

The woman, known as EM, came to the UK in 2004 with her son when he was eight. She has had sole custody of him since his birth because of her ex-husband's violence. She left Lebanon because its laws automatically award fathers custody of children from the age of seven.

Lord Hope of Craighead said that the right to non-discrimination was a core principle in the protection of human rights. "Sharia law as it is applied in Lebanon was created by and for men in a male-dominated society... There is no place in it for equal rights," he said.

Sharia was the product of a much-observed religious and cultural tradition, "but by our standards the system is arbitrary because the law permits of no exceptions to its application... It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women."

Yesterday's decision reversed rulings by the Court of Appeal, the Asylum and Immigration Tribunal and the Home Secretary that returning EM to Lebanon with her son would not violate her right to family life.

The human rights groups Liberty and Justice intervened in the case. Liberty's legal director, James Welch, said: "How can the Government speak of equal treatment in one breath and seek to deport mother and child to face separation... in another? The law lords have rightly upheld basic protections which must be available to us all."

EM had obtained, in the Islamic Court in Lebanon, a divorce from her husband, who reportedly ended her first pregnancy by hitting her in the stomach with a heavy vase. She had been awarded physical custody of her son until his seventh birthday.

Lord Carswell said: "The House is applying the domestic law of this country, as it is bound to do... We are not passing judgment on the law or institutions of any other state. Nor are we setting out to make comparisons, favourable or unfavourable, with sharia law."

Eric Metcalfe, of Justice, said: "This isn't a case of British law versus Lebanese law or Sharia law. This is simply a victory for basic fairness and a useful reminder for anyone who doubts the value of the Human Rights Act 10 years on."

Thursday, October 09, 2008

Forced Marriage is a Crime Against Humanity

We have just read the appeal judgment of the Appeals Chamber of the Special Court for Sierra Leone in a case entitled Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu

For international family lawyers the judgment is significant in that the court ruled that forced marriage constitutes a crime against humanity.

The case arose out of a coup d’etat in Sierra Leone in 1994, spearheaded by the three defendants who were the leaders of the “Armed Forces Revolutionary Council,” which led to horrific atrocities.

The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

The Court’s Trial Chamber had convicted the defendants of crimes against humanity, war crimes, and other serious violations of international humanitarian law, but had dismissed charges arising out of evidence of mass forced marriages. The reason for the dismissal was that the Prosecutor had not demonstrated that forced marriage was a non-sexual crime, and was different from the crime of sexual slavery.

On appeal, the Appeals Chamber focused on other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands". The court ruled that:

“The trial record contains ample evidence that the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage.” … The Trial Chamber findings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks. A “wife” was exclusive to a rebel “husband,” and any transgression of this exclusivity such as unfaithfulness, was severely punished. A “wife” who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.”

The Appeals Chamber determined that forced marriage is a crime against humanity under the Nuremberg Charter, which lists several specific crimes against humanity and then, in Article 6(c), includes "Other inhumane acts" as a residual provision intended to punish acts that are comparable in nature.

The Chamber defined “forced marriage” as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”

It concluded that “society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and systematic attack against the civilian population is adequately reflected by recognizing that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.”

Forced Marriage Law in Britain

Britain has initiated a concerted effort to stem the number of forced marriages in that country. A new law – the Forced Marriage (Civil Protection) Act 2007– will come into force there next month. A “forced marriage” is one in which a party is married without his or her consent or against his or her will. It is still practiced in South Asia, the Middle East, and Africa, as well as within migrant communities from such areas in Europe and the United States. Most involuntary spouses are women.

The British law allows civil courts to issue restraining orders – known as forced marriage orders -- to stop forced marriages from occurring and to protect victims. The subject of an order can include any person who aids, abets or encourages the forced marriage. Interested third parties, such as counselors or teachers, may apply themselves for court permission to intervene on behalf of victims who are too fearful to seek help on their own.

The orders can contain such provisions as a court finds appropriate to prevent a forced marriage or to protect a victim of forced marriage from its effects, and may include confiscation of passports or restrictions on contact with the victim.

A marriage can be considered forced not merely on the grounds of threats of physical violence to the victim, but also through threats of physical violence to third parties (e.g. the victim's family), or even self-violence (e.g. marriage procured through threat of suicide.)

The British law does not criminalize forced marriage, because of the fear that victims—even those subjected to the worst abuse—would be unwilling to see their parents prosecuted. However, a person who violates a forced marriage order is subject to contempt of court and may be arrested.

Wednesday, September 17, 2008

Fifth Circuit's Hague Abduction Convention Ruling

The Fifth Circuit has followed the Second Circuit's ruling in Croll v. Croll and has ruled that a "ne exeat" right does not constitute a "right of custody" for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. (Abbott v. Abbott, handed down on 9/16/08).
The case concerned a British father and American mother who lived with their child in Chile. When the parents separated the Chilean courts awarded sole custody to the mother with visitation rights to the father and entered a subsequent order (the “ne exeat order”) prohibiting the child’s removal from Chile by either parent without their mutual consent. The mother concededly breached that order by taking the child to Texas and keeping him there without the father’s consent and without notice whilst the parties were in the midst of disputes over visitation and other issues. The Hague Convention provides the remedy of return of a child only if the child’s removal or retention from its habitual residence breached “rights of custody attributed to a person.” The Fifth Circuit was required to determine whether to follow the three federal appellate courts that have determined that ne exeat orders and statutory ne exeat provisions do not create “rights of custody” under the Convention (Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 948 (9th Cir. 2002); Croll v. Croll, 229 F.3d 133, 138–39 (2d Cir. 2000)) or whether to follow the Eleventh Circuit which has reached the opposite conclusion. (Furnes v. Reeves, 362 F.3d 702, 719 (11th Cir. 2004)). The Eleventh Circuit’s view has received further support in the First Circuit in Whallon v. Lynn, 230 F.3d 450, 458 n.9, 459 (1st Cir. 2000) and Croll has been criticized in most of the academic literature.
The Fifth Circuit also noted that the Furnes court had “catalogued” the foreign opinions on the issue, noting that courts in the United Kingdom, Australia, South Africa, and Israel have held that ne exeat rights do constitute “rights of custody” under the Hague Convention, while Canadian and French courts have reached the opposite conclusion. Furnes, 362 F.3d at 717–18.
The decision of the Fifth Circuit is that it follows the majority rule. It held that:
“We find persuasive Croll’s reasoning that the Hague Convention clearly distinguishes between “rights of custody” and “rights of access” and that ordering the return of a child in the absence of “rights of custody” in an effort to serve the overarching purposes of the Hague Convention would be an impermissible judicial amendment of the Convention. We hold that ne exeat rights, even when coupled with “rights of access,” do not constitute “rights of custody” within the meaning of the Hague Convention. The Hague Convention provides a remedy of return only for a parent who holds “rights of custody.” The father in this case did not hold such rights."

Friday, September 05, 2008

RUSSIA: “Lawful” Child Kidnapping

The article below in today's Daily Telegraph illustrates the grave dangers that may arise when children visit Russia:

An 11-year-old British girl has been left stranded in Russia after her biological father obtained a Court Order preventing her from leaving the country until she is 18.

Victoria Osborne, who was visiting her grandmother in Saratov with her mother Tatiana, was prevented from boarding a plane home despite neither of them being given notice of the Order. Officials told her that her natural father, Colonel Yuri Gladkikh, had obtained the Order which under Russian law allows divorced parents to block their children leaving the country until they are 18. It was designed to help separated parents with access to their children.

Victoria's stepfather, Patrick Osborne, 52, is now preparing for a legal battle to bring her home to Winchester, Hants. It is believed that they are in negotiations with Colonel Gladkikh over the ownership of a flat in Saratov.

He said: "We know it is not going to be easy, but we are determined to get our family back together. This order came totally out of the blue. When we go over there to see Tatiana's family Mr Gladkikh knows exactly where we are because his mother lives in the same village."

Mr Osborne, a Civil Engineering lecturer at Southampton University, said the first he knew about the situation was last Thursday when his wife telephoned him in tears from the airport. He said: "She was crying her eyes out saying that they couldn't get out of the country. She is getting increasingly distressed and it's going to get harder and harder the longer it goes on for her. Vicka is a confident, happy girl and she is dealing with this as best she can. It is unbelievable that any parent, however far-removed from daily upbringing, would deny his child the right to a good education, access to her home and friends. This is totally immoral."

Mrs Osborne, 34, and Colonel Gladkikh split up eight years ago. She married Mr Osborne three years later after they met while he was working in Russia.Although his wife and step daughter are British citizens the pair travelled on Russian passports, making them subject to the country's law.Mrs Osborne is free to leave the country but said she will not return without Victoria, who was due to start secondary school yesterday. Mrs Osborne said she separated from Colonel Gladkikh in January 2001 and divorced him in October 2002.

“This is a terrifying ordeal and we are completely devastated. The possibility that Vicka will be forced to remain here, away from her friends and family, for the rest of her childhood is very scary for her," she said. "When we first went to see him (Colonel Gladkikh) he said Vicka should be near him in Russia. He said she could stay with her grandmother where he could visit her.” She claimed he later told her he would lift the order if she voluntarily gave up registration on the £35,000 flat they own, where Victoria was born, so that he could sell it. She said she was prepared to do that after receiving written guarantees he would not go back on his word.

She added: “Quite simply, it's blackmail. Vicka is trapped here and she feels so betrayed to be used like an object of trade. It is immoral. To think he is a high ranking officer in the Russian army, trusted with defending the country, and this is how he treats his child.”

Speaking from Saratov, Mrs Osborne, who is carrying out research at Birmingham University to improve cultural understanding between Britain and Russia, said: "We are absolutely devastated. Had we known about this restriction we would never have gone to Russia this summer. It's a catastrophe. Our family is broken apart and Vicka is not at school. She was so much looking forward to it. This is a betrayal by her biological father."

The family could face a lengthy court battle if the order is not voluntarily withdrawn by Mr Gladkikh.They have sought help from the British Embassy in Russia but have been told there is little they can do as they were travelling on Russian passports.
Daily Telegraph, Sept. 4, 2008

Thursday, September 04, 2008

Jersey, Channel Islands Case Favors Spouse with Offshore Trusts

The Royal Court in Jersey, Channel Islands has issued a key ruling in favor of a wealthy Indian jewelry magnate with substantial assets in offshore trusts, in a case known as Mubarak v Mubarak. The Court ruled that assets held in offshore trusts could be released to ex-spouses only if the trustees had the power to do so:

The Financial Times (article dated September 3, 2008) suggests that wealthy business people may now be more encouraged to exploit Jersey and other tax havens in an attempt to shield themselves from big money divorce payouts.
The Jersey case followed more than seven years of litigation in England – described by the English courts as “notorious” and “Titanic” -- culminating in a decision of the Court of Appeal last year in which that Court vehemently criticized the husband’s conduct and upheld a large award against him. However the Jersey court has now allowed the husband to avoid many of the consequences of the English award
In recent years the courts in England have issued several judgments in favor of ex-spouses who were married to wealthy spouses with assets in offshore trusts. However the Jersey ruling shows that without the cooperation of the courts in the offshore jurisdictions the divorce rulings in favor of ex-spouses might not be worth all that much.
The Jersey case could lead more business people to put their money in so-called tax havens such as the Channel Islands, the Isle of Man and Britain’s Caribbean overseas territories in an attempt to ring-fence their wealth from divorce settlements.

Tuesday, August 19, 2008

Korea Okays Sex During Divorce

Korea's top court has ruled that sexual relations outside marriage committed during consensual divorce proceedings was not a criminal act.

Under current Korean law, adulterous relations are considered a criminal act and those found guilty can receive jail sentences of up to two years.
The Supreme Court overruled a lower court's conviction of a 57-year-old married man identified as Chung, who was indicted without physical detention on charges of having an extramarital affair with a barmaid in April 2007, returning the case to an appellate court for retrial.

This ruling indicates that married people undergoing divorce have no legal obstacle to having sexual relations with others. The court ruling stated: ``If it is clear that the couple had no intention of continuing their married life, having sex with another person does not violate the Adultery Law since their decision can be translated into a tacit agreement for both sides to have sex with new partners.''

Chung filed a divorce lawsuit in early 2007 to end his 25-year-long marriage. Prior to the legal step, Chung and his wife reached an agreement on divorce but decided to live separately for a while to resolve pending disputes over division of property and monetary assets. Chung's wife laid charges against him after learning he had sexual intercourse with a female bar worker. Chung and the hostess were sentenced to six months in prison suspended for two years by a provincial court, a ruling upheld by an appellate court.

In the meantime, the Constitutional Court is now reviewing whether the Adultery Law is constitutional or not. In February, a famous actress, Ok So-ri, asked the court to rule the law unconstitutional, alleging it infringes upon people's rights to have sex with whom they want to. The nine-member court said it would rule on the case in the near future. The court has already ruled three times in favor of the law, the last time in 2001. Each year, more than 1,200 people are indicted under the law. In 2006 alone, 11,244 couples here fought over divorce in court because of infidelity. In 39.7 percent of those cases, it was the husband accusing the wife, up 3.5 percentage points from 1999.

Korea Times

Tuesday, July 22, 2008

Israeli court: Husband who refused divorce must pay damages

The Jerusalem Family Court (Judge Ben Zion Greenberger) has reportedly ordered a husband who refused to give his wife a divorce for nine years to pay damages of approximately $160,000. In an unprecedented ruling, the judge said that even if a husband is not required by the court to give his wife a divorce, he will still compensate her for his refusal on the matter.

The plaintiff is an ultra-Orthodox woman who began the proceedings towards a divorce in 1998. She claimed that she had been physically abused by her husband and forced to flee her home with three children. The case went to the High Rabbinical Court, which ruled that the husband must give her a divorce. The husband did not do so and the woman appealed to the Family Court, demanding compensation for the distress her husband had caused her over the years, and for the denial of her right to marry again and continue with her life. Previously, courts had ruled that damages should be paid from the time the divorce is finalized.

The new ruling allows the wife to sue for damages for all the years in which her husband refused to give her a divorce, including the years her lawsuit is pending in court. The woman’s lawyer hailed the ruling: "It would seem that the civil courts have finally begun to realize that the rabbinical courts take too long in enforcing divorces, and have decided to treat the women justly."

Thursday, July 10, 2008

Credit crunch raises divorce rate for America's superwealthy

London Times article citing me and other N.Y. lawyers:
The Times, July 11, 2008 Tom Bawden in New York

America's credit crunch is putting the squeeze on the marriages of New York's superwealthy as a record number of couples with $10 million or more in assets sue for divorce. The New York lawyer Raoul Felder, who works exclusively with the very rich — he represented Larry Fortensky in his divorce from Elizabeth Taylor — told The Times that his company's caseload had soared from 250 to 300 in the past year. This is the biggest jump since 1980, when New York state law was changed to add four new grounds for divorce to the sole existing one — adultery.

The impact of the credit crunch has slashed what were once multimillion-dollar bonuses to virtually nothing for many Wall Street executives, hedge fund managers and property developers, while thousands of others have lost their jobs in the property crash.

One New York divorce lawyer said one client was worried that his wife would leave him if she found out that his net worth had fallen from $20 million (£10 million) to $8 million after he suffered huge losses on property and other investments. To keep his wife he was trying to mask his declining fortune by borrowing to pay for her clothes and holidays.

Kenneth Mueller, a pyschotherapist in the East Village area of New York, who works with many Wall Street bankers and property magnates, said: “The credit crunch is starting to become a really big issue — especially for the moneyed classes. Once you can't act out with money you start fighting.

“It's like drinking, or gambling, or sexing your way out of feelings, but with a fabulous family vacation or great clothes or wonderful meals — money can become an addiction that masks the reality. When that goes, reality has to be faced and accusations start flying.” Nancy Chemtob, another New York divorce lawyer, said that since November she has been receiving a couple of inquiries a week relating to divorce cases motivated by the credit crunch, compared with virtually none before. The sudden rise in Mr Felder's caseload, which forced him to hire an extra lawyer in May, is not confined to New York.

Jeremy Morley, a family lawyer representing wealthy people in the US and abroad, said that the number of inquiries from potential clients had increased by nearly 40 per cent in the past year.

He puts much of the new business down to the economic downturn, which, he says, “makes people nervous and more inclined to change their lives”.

Lisa Thomas, a family therapist, based in Denver, Colorado, has also noticed how love among the rich can ebb when the money falls short. “If you don't have a pony show going on 24-7 you have to look at the relationship and that can be very scary. The toys were a distraction, but now they may be running out and, though once we used to love each other, I'm not sure if we do anymore,” Ms Thomas said.

Not that anyone would admit their divorce is motivated by money, probably not even to themselves. Mr Felder, who represented Rudolph Giuliani, the former Mayor of New York in his recent divorce, and Mike Tyson's former wife, Robin Given, in hers, said: “Money's really all that it's about, the husbands know it, but the wives will never say it. I've been doing this for years. I know, the judge knows, though you can't prove it. “One giveaway is when the wife has no specific grounds for divorce. If the husband suddenly starts hitting her, then that's totally understandable. But if they are vague about their complaint and just say things like 'it's not working out' then you know,” Mr Felder added.

Under the revised New York law, couples can sue for divorce on the grounds of cruel and inhuman treatment, abandonment, prison for three or more years and separation for at least one year. Lack of money is not yet deemed to be a legitimate reason.

Number crunching

$240m annual wage of Manhattan's top hedge fund managers in 2006

$200,000 average Wall Street bonus last year

11 per cent average amount of bonuses spent on watches and jewellery, according to survey last year

40,000 estimated number of positions lost at financial companies since the onset of the credit crunch

Friday, June 27, 2008

International Child Visitation to Colombia

We represented the mother in successfully defeating the Hague International Child Abduction Convention portion of this case in North Carolina.

International child-custody case settled

A boy, 12, will live in the U.S. with his mother. His father can visit but can't take the boy to visit Colombia against his will

A custody tug-of-war spanning two continents was settled Monday in Durham County court [North Carolina], ending a protracted dispute embodying international treaties and questions of travel safety.
Alejandro Ramirez Polania, a 12-year-old in Durham, will live in the United States with his mother, a judge ruled. His father, who lives in Colombia, may visit, according to the settlement agreement, but the boy will not be forced against his will to visit a country where his mother fears he might be a target of kidnappers. The case resulted in at least one complaint to the Judicial Standards Commission about Judge Craig Brown, who since has stepped down from the bench. Alejandro's mother, Claudia Krehbiel, also filed a federal lawsuit against the state attorney general because of her dissatisfaction with Brown's finding in August that Colombia was safe enough for her son to visit. During a four-day hearing in July and August, experts debated the safety of Bogota in a Durham courtroom. A former FBI agent and a Colombian colonel testified to dangers lurking in the capital. The father presented reports showing a decline in crime.

Judge removes self
After the complaint to the judicial standards commission, a grievance that was never publicly investigated, Brown removed himself from the case. When Brown stepped down from the bench in May, he did not reveal his reasons for the sudden departure. As the family waited for a hearing in front of a different judge, mother, son and stepfather tried to enlist a global audience in their battle. The Web site shows a picture of Alejandro, his arms crossed, standing by an American flag. "My life, my story. ... please help keep me safe!" the banner reads. Alejandro moved to the United States with his mother when he was 6. His parents, both native Colombians, never married. But both wanted to play a role in his life. The judge ordered regular communication via e-mail and other computer technologies. He ordered the family to take down the Web site and said the visitation issue could be revisited only through a court order.
The News & Observer, Jun 24, 2008, Anne Blythe, Staff Writer

Monday, June 23, 2008

Australian Child Relocation & Abduction Problems

There seems to be a rash of child abductions out of Australia -- although perhaps this is simply because many Australian cases are coming my way.

My theory is that it is partly a result of the recent changes in Australian child custody law.

The main and eminently laudable objective of the 2006 amendments to Australia's Family Law Act was to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, "to the maximum extent consistent with the best interests of the child.” Section 60B(1)(b) Family Law Amendment (Shared Parental Responsibility) Act 2006.

A consequence of the new law is that child relocation is now extremely difficult in Australia, leading to desperate measures.

Consider a typical scenario of an American, British or Canadian woman marrying her gorgeous Aussie guy and discovering after she has moved over there and had a baby that he is not the man she thought he was.

He may be violent, or he may have lost his job, or he may be a womanizer, or he may not help her with child care -- or all of the above. They may live in a remote town or distant suburb. She will likely have no family or social support. They break up and she is suddenly alone, a single parent who is scared, broke and lonely. She desperately wants to "go home," to the community where her parents, extended family and lifelong friends live and where she is qualified to get a reasonable job.

A similar fact scenario if brought to court in a U.S., Canadian or U.K. court might very well lead to a relocation order in favor of the mother, provided she allows substantial contact with the father.

However, the result in Australia may well be completely different. Her relocation application will likely be denied if her husband objects and makes some effort to see the child.

At that point Australia becomes a prison for her and she may be tempted to run home regardless of the law. Given the power of the Hague Convention she will then after a heartbreaking trial be forced to return her child to Australia, which means that she will have little choice but to go back also, but now she is branded a child kidnapper and she faces a judgment for the father's legal fees and expenses on top of having already prevailed on her family to have invested their life savings in the effort to keep her and the baby home in the States.

Something needs to change.

Friday, June 13, 2008

Canada: Divorced Couples Must Share Marital Debt

Just as divorced couples sometimes share future assets, they also should have to share future debts tied to the marriage, the Supreme Court of Canada ruled yesterday.

The 6-1 decision puts a Vancouver woman on the hook for part of her former husband's unascertainable tax liability arising from tax shelters he bought during their marriage.

"It seems self-evident that, generally speaking, both assets and debts need to be considered in order to ensure fairness upon the breakdown of a marriage," Justice Michel Bastarache wrote for the majority.

"In my view, the fact that it is not feasible to precisely value an asset or debt at the time of separation does not alter the principle that the complete financial situation of both spouses needs to be considered in order to ensure a just result."

The decision, which overturns the British Columbia Court of Appeal, was the high court's first look at the post-divorce division of contingent debts related to the marriage.

The court sided with Wayne Stein, who was married to Malka Stein for 12 years before they separated in 2003 and divided $1.7 million in family assets. Wayne Stein, part owner of a family lumber business, purchased four tax shelters in motion picture limited partnerships during the final years of marriage. The shelters, which brought the couple tax breaks, carried with them contingent future income tax debt.

Nothing in the B.C.'s Family Relations Act precludes the division of contingent liabilities after divorce, concluded the judge. He also noted there are already rulings on the books that allow for the division of future assets that are "inchoate, contingent, immature, or not vested" -- and that there's no reason the concept shouldn't apply to debt. "However, in the event that the impact of the future liability on one of the parties results in an unfairness, that individual may have to apply to the court for adjustments," he wrote.

Ottawa Citizen, June 13, 2008

Thursday, June 12, 2008

English Law Commission Looking At Prenuptial Agreements

From Times Online

June 11, 2008

Pre-nuptial agreements between couples planning to marry could become legally binding under a review of the law being carried out by the Government's law reform body.

The inquiry announced today by the Law Commission is part of its latest programme of law reform, which is also looking at the law on intestacy, the laws governing residential care and level crossings.

At present pre-nuptial agreements are persuasive in the courts but not strictly legally binding.

But the Law Commission has ruled out looking at the law on the splitting of a couple's assets on divorce, despite calls by some judges that they should do so.

Sir Terence Etherton, a High Court judge and the chairman of the Law Commission, said: "There is a recognition that the division of assets is an issue of considerable social importance and there is wide dissatisfaction with the current law.

“But we recognise that the issue is increasingly politicised and controversial."

Instead the Law Commission will examine in what circumstances courts should uphold the increasingly popular pre-nuptial contracts with the aim of drawing up a draft parliamentary Bill by 2012.

Sir Terence also predicted that existing proposals by the Law Commission which give greater legal rights to cohabiting couples would become law in the not too distance future.

"We are lagging behind Australia, New Zealand, Canada and Scotland. There will be legislation because we are clearly so far behind other countries."

Post-marital agreements, entered into by couples after marriage to determine the division of their assets after divorce, would also be examined, the Law Commission said.

Lawyers welcomed the plans to look at pre-nuptial contacts but expressed concern that the plans could also be left on the shelf.

Monday, May 19, 2008

Israeli Divorce Based on 'Get' Not Recognized in New York

A state judge has declined to recognize an Israeli divorce judgment that was based on a "get," or decree of divorce, issued by a Brooklyn rabbi.

"If this court were to sanction the utilization of a 'Get' to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a 'Get' in New York could register it in a foreign jurisdiction and potentially, later on, rely on the 'Get' to obtain a civil divorce in New York thereby rendering New York State's Constitutional scheme as to a civil divorce ineffectual," Supreme Court Justice Jeffrey S. Sunshine of Brooklyn (See Profile) ruled in Tsirlin v. Tsirlin, 20542/06.

"It would have the practical effect of amending the Domestic Relations Law section 170 to provide a new grounds for divorce," he said.

Justice Sunshine allowed the plaintiff-husband's Brooklyn divorce proceedings to go forward, denying the wife's motion to dismiss on the grounds of comity and judicial estoppel.

Jeremy D. Morley, an expert in international family law who is not involved in the case, called the decision surprising.

"Usually we would grant comity to a foreign divorce decree so long as at least one of the parties was domiciled in the foreign country," said Mr. Morley. "It's most unusual for a domestic court to look at the reasons behind a foreign divorce decree.

"It'll be interesting to see how the decision not to give comity plays out in other situations. How would it apply when you have an administrative divorce from
Japan, which is alien to our system, or a divorce from a country that allows divorce for grounds that we find unusual?"

Alla and Alexander Tsirlin married in Jerusalem in September 1995. Less than six months later, Ms. Tsirlin gave birth to a son, Jonathan. Ms. Tsirlin works in a medical office; Mr. Tsirlin is a bus driver.The family moved from Israel to the United States in October 2003, though Mr. Tsirlin soon returned to Israel a month later due to passport problems.

In December 2003, the couple appeared before a Brooklyn rabbinate, which issued a "get," or religious divorce, according to Mr. Tsirlin.

Two years later, Israel's Rabbinical Court, Jerusalem District, issued a divorce judgment based on the 2003 Brooklyn decree.

In July 2006, Mr. Tsirlin initiated the present divorce action, in which he also sought joint custody and child support.Ms. Tsirlin contested the action on comity and judicial estoppel grounds, citing the Israeli divorce decree.

In a decision last week, Justice Sunshine rejected Ms. Tsirlin's motion. He found that allowing a U.S.-based get to serve as the basis of a valid divorce would provide an end-run around the state's divorce laws.

Justice Sunshine relied on the 1924 Appellate Division, First Department, decision Chertok v. Chertok, 208 App.Div. 161, in which the court found that a get acquired in New York and "consummated" in Russia was not binding in the United States."[A]pplying the holding of Chertok to the facts of this case, although the Israeli government may recognize the divorce granted in New York City, it is void in its inception under our law," Justice Sunshine held.

By Mark Fass
New York Law Journal, May 19, 2008