Monday, December 27, 2010

E.U. Adopts Divorce Choice of Law Regulation

On December 20, 2010 the European Union Council adopted the Rome III Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
Article 5 allows spouses to agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:

(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded, or

(b) the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded, or

(c) the law of the State of nationality of either spouse at the time the agreement is concluded, or

(d) the law of the forum.

Article 8 provides that if the spouses do not agree on a choice the law that will govern their divorce and separation shall be the law of the State:

(a) where the spouses are habitually resident at the time the court is seized; or, failing that,

(b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that,

(c) of which both spouses are nationals at the time the court is seized; or, failing that,

(d) where the court is seized.

The rules are intended to provide greater certainty, predictability and flexibility, and to prevent the EU’s notorious "rush to court" that the Brussels II Regulation has encouraged.

The Regulation will apply to 14 states, these being Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU Member States may join at any time. Notable “refusenik” countries are Britain, Ireland and the Scandinavian countries.

Friday, December 17, 2010

Abducted Children Returned from India

We have succeeded twice in recent weeks in securing the return to their homes in the United States of children who were abducted by a parent to India. 

The results were not accomplished through the Indian legal system, which is generally not helpful in this area. Instead we used less formal means of applying appropriate pressure to achieve the desired result.

The outcomes are evident from our clients’ unsolicited testimonials.
In one case: "Simple words cannot describe how Mr. Morley's experience and thorough knowledge in the subject of international law helped me get back my children to the U.S.A.  Now I am a very happy father enjoying every moment with my kids.  Guess what?  Now my wife and I are in the path of complete reconciliation with kids around both of us!" 

In the other case: “Thank you for informing me. …You made it possible for me…You saved my children from suffering very promptly. We can have a wonderful Christmas which I have been asking God every minute.”
It must be stressed that these positive results do not mean that a return of abducted children from India can be accomplished in most cases. There were special circumstances in both cases that made our task very much easier.

As we have frequently argued, the best way to handle international abductions to India is to prevent them from occurring in the first place. When parents argue that a child’s proposed visit to India might lead to the child being wrongfully retained there, such concerns should be given great respect.

Friday, December 03, 2010

French deal could complicate talks with Russia on international child abduction cases

Negotiations with Russia on international child abduction cases could become more complicated. There has been growing pressure on Russia to sign the Hague Convention on the Civil Aspects of International Child Abduction, but it is now reported that the European Commission is giving France the right to start negotiations with Russia on a bilateral treaty on international child abduction.

Finland has expressed great concern on this issue, since if individual EU countries negotiate one at a time with Russia there may be less pressure on Russia to sign the Hague Convention.

There have been sharp disagreements between Russia and Finland on the topic of international child abduction. These came to a head in a Finn-Russian case in 2008 and 2009. A Finnish court awarded sole custody of a child to the father. In apparent violation of that order, the Russian mother then took the child to Russia. The father was unable to secure the child’s return from Russia through judicial means and secured the help of the Finland’s Foreign Ministry. A Finnish Foreign Ministry official used a diplomatic vehicle to take the father and son back to Finland. Russia lambasted Finland for a “severe violation of Russian laws.”

Finland is eager for Russia to sign the Convention, as are many other countries, but Russia seems to prefer to handle the issue piecemeal and thereby diffuse the international pressure for it to simply sign the Convention.