Saturday, February 28, 2009

Divorce, Bigamy & Naturalization

Problems arising from void or voidable marriages often do not create issues until many years after the fact and in quite expected ways.

Such was the experience of one Kanadi Mohamed Ali, an Israeli citizen whose conviction for knowingly making a false statement under oath relating to naturalization, citizenship, or registry of aliens in violation of 18 U.S.C. § 1015(a) has just been upheld by the Sixth Circuit.USA v. Ali.

Defendant married Wife #1 in Montreal, Canada. After they separated the Montreal Superior Court mailed him a “Declaration” of divorce written in French. He later claimed that he thought it was a divorce judgment but it was apparently merely a pleading in a divorce case. He then married Wife #2 in Georgia, USA. Subsequently the Montreal Superior Court entered a “Judgment of Divorce” finalizing the divorce between Ali and Wife #1 and Ali then remarried Wife #2 in Tennessee.

Seven years later Ali applied for naturalization. A question on his application form, in a section entitled “Good Moral Character,” asked, “Have you ever: . . . [b]een married to more than one person at the same time?” He answered “no”.

In a handwritten attachment to the application, Ali disclosed his marriage and divorce to Wife #1 and his second marriage to Wife #2 in Tennessee but he did not mention his first “marriage” to Wife #2. When charged with making a false statement he asserted that under Georgia and Tennessee law, his first attempted marriage to Wife #2 was void ab initio and that, therefore, he was never actually “married” to her while still married to Wife #1. The Sixth Circuit held that although the first purported marriage to the second wife was indeed void ab initio under both Georgia and Tennessee law, a truthful person would not have answered “no” to the question. Furthermore, Ali’s asserted defense would nullify all criminal bigamy laws by giving a defendant charged with bigamy a foolproof defense – that he could not have, as a matter of law, committed bigamy because his attempted second marriage was automatically void.

Seems harsh to me but it serves as a warning who take these issues too lightly. Likewise, people who obtain a Dominican divorce even though neither they nor their spouse is domiciled in the Dominican Republic often feel that they have “beaten the system” only to discover years later that they have a serious problem when they cannot establish that they are divorced and they wish to re-marry or apply for a spousal visa.

Sunday, February 08, 2009

Singapore Prenuptial Agreements - Important Decision

The Singapore Court of Appeal has just rendered a weighty and well-reasoned decision on the enforceability of prenuptial agreements in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009).
The opinion is especially important for its analysis of the (substantial) weight to be given in Singapore to foreign prenuptial agreements as compared to prenuptial agreements entered into in Singapore.

Traditionally Singapore has followed the English rule that prenuptial agreements are unenforceable and, as in England, that ancient and much discredited rule has given way to a principle that prenuptial agreements may be considered in a court’s determination of what is a fair result, along with a host of other factors.

The Singapore Court of Appeal now holds that it will normally enforce foreign prenuptial agreements.

The Singapore case concerns a prenuptial agreement between a Dutch husband and a Swedish wife entered into in the Netherlands where the parties were married before returning to their residence in London. This agreement was prepared by a Dutch civil law notary in the Netherlands. After six years of marriage the couple moved to Singapore with their children. The agreement provided that “[t]here shall be no community of matrimonial assets whatsoever between the spouses” and that “[t]he marital property regime in force between them shall be governed by Netherlands law.”

The court determined that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.

Thus the court ruled (Paras. 87 and 88 of the opinion) that:
“There is another specific issue that arises (and which is of particular relevance in the context of the present appeal). This relates to prenuptial agreements which have been entered into abroad and are wholly foreign in nature. It would appear to us, as a general guide (and no more), that if a prenuptial agreement is entered into by foreign nationals and that agreement is governed by (as well as is valid according to) a foreign law, then there is no reason in principle why the court should not accord significant (even critical) weight to the terms of that agreement – bearing in mind that (as we have noted) prenuptial agreements are not, generally speaking, void as being contrary to the public policy of Singapore and there is therefore no overarching public policy of the lex fori which prohibits such agreements in the first place (with, perhaps, the exception of certain prenuptial agreements relating to the custody (as well as the care and control) of children (see above at [70])). The assumption here is also that such foreign law is not repugnant to the public policy of Singapore. Such an approach will also avoid the danger of forum shopping (see, for example, Jeremy D Morley, “Enforceable Prenuptial Agreements: Their Time has Come” (2006) 36 Fam Law 772).
However, such an approach is, it should be noted, confined (in the main at least) to prenuptial agreements relating to the division of matrimonial assets and it is important to emphasise that there is no blanket rule to the effect that such agreements will (even with respect to the division of matrimonial assets only) be accorded significant (let alone crucial) weight as a matter of course. Where, for example, there has been clear fraud or other indications of unconscionability, the court might even disregard the agreement concerned altogether … Much will, of course, depend on the precise facts of the particular case as well as on the expert evidence adduced (in this last-mentioned regard, it behoves the parties concerned to adduce the best and clearest evidence that they can muster; indeed, to obviate potential as well as unnecessary bias and/or confusion, an independent expert (whether appointed by consent of the parties or even by the court) might be the best way forward in such situations). The court ought not – and cannot – be utilised by any one party as a means to achieve an unjust and unfair outcome.”

It is also important to note that the court confirmed that the validity of a prenuptial agreement should be governed by its “proper” law, as with any other contract.

The proper law is to be determined by (in order of descending priority): (a) the express choice of the parties; (b) the implied choice of the parties; and (c) in the absence of any express or implied choice of law, by ascertaining the system of law with which the agreement has the closest and most real connection, which is presumed to be the law of the matrimonial domicile unless rebutted.

Thursday, February 05, 2009

Money in misery: International marriages

The current issue of The Economist has a great article by Edward Lucas on international family law. The title is Money in misery: International marriages are crumbling with the global economy, revealing unseen pitfalls in cross-border divorce law. Good news for lawyers.

Some extracts are:

According to Jeremy Morley, an international divorce lawyer based in New York, hiding assets from a spouse is also much easier in some countries than in others. California, at one extreme, requires complete disclosure of assets. At the other extreme, Austria, Japan and many other countries require very little disclosure. A California court recently ordered a husband to pay $390,000 in costs and penalties to his wife because he did not disclose some significant financial information. In another jurisdiction, the assets could have stayed hidden.

Making wily choices about possible jurisdictions is often criticised as “forum shopping”. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. As the table shows, totally different rules apply.

So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting, or even finishing, a divorce in a different country. Sorting out these cross-border legal wrangles can be colossally expensive.