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.