Sunday, July 24, 2011

Expert testimony: Chinese Family Law and Potential International Child Abduction to China

In what the Court described as a “very difficult case” between two Chinese parents living in Georgia -- one of whom (the child’s mother) faces deportation to China for lack of an immigration visa and had asked the Court to give custody of the parties’ child to her and to authorize her to relocate the child to China – the Court relied upon my expert testimony as to Chinese law and practice concerning child custody and child abduction in cases of an international dimension. Zhang v. Zhang, DeKalb County Superior Court, 7-14-11.

The Court twice stated that it was giving “great weight” to my testimony.

Thus it stated that, “from what the Court has heard from Mr. Morley, whom the Court has given great weight” and “I have to also balance that with the facts presented by the defense by Mr. Morley -- who the Court gives great weight to his testimony –.”

The ultimate decision gave custody to the father in the United States and followed my suggestion that any visitation with the mother outside the United States should be in a country such as Singapore or Hong Kong with a reliable legal system and which was a party to the Hague Abduction Convention.

The case shows that those countries who have not signed the Hague Convention on child abduction and who do not have an independent and reliable family law system are rendering a grave disservice to their own citizens.

Since the Chinese legal system cannot be trusted to return internationally abducted children, Chinese nationals who reside with their children outside China should normally not be permitted to take their children to visit China if the potentially left-behind parent objects.

Saturday, July 16, 2011

Korea and International Child Abduction

Korea is not a party to the Hague Abduction Convention. The United States is now consistently urging Korea to join the international community in signing the Convention.

The article below presents the United States position.

Korea should ratify the Hague Abduction Convention to help resolve international child abduction by parents.
By Cynthia Sharpe, Consul General and Minister Counselor for Consular Affairs for the U.S. Embassy in Seoul.

As a 21st century regional and global leader, countries around the world look to Korea as a role model. Korea’s commitment to cooperate with other nations in the peaceful and orderly adjudication of legal disputes is an influential example of responsible global citizenship. Few, if any issues are more important than the protection and welfare of children.

Korea’s ratification of the Hague Convention on the Civil Aspects of International Child Abduction, an important tool of international cooperation on cases involving the separation of parents and children, would be a strong statement on the importance of protecting children.

In this era of modernization and globalization, a growing number of people from different cultures are forming families and welcoming children into their lives. Unfortunately, a small percentage of those relationships end acrimoniously, with parents facing difficult decisions on how to meet their child’s fundamental need for parental contact and support, while balancing their own needs as they adjust to the reality of a broken relationship.

When one parent deprives the other parent of access to their child by abducting the child to another country without their permission, it is referred to as “International Parental Child Abduction.”

International Parental Child Abduction is a tragedy that not only deprives and jeopardizes children but has substantial long term consequences for the parent, and family members left behind.

Children who are abducted by one parent and taken to a foreign environment are suddenly isolated from the security of a familiar environment, extended family, friends and classmates. They are at risk of serious emotional and psychological problems in their sudden isolation, often believing they have been abandoned by one of their parents.

Similarly, the parent who is left behind copes with feelings of betrayal, loss, anger and depression. When their child has been taken to a foreign country, the parent left behind is faced with unfamiliar legal, cultural and linguistic barriers that compound emotions of helplessness, loss and grief.

To protect the rights of parents and children throughout the world, nations came together in 1980 to sign The Hague Abduction Convention. This Convention created an agreed civil legal mechanism available to parents seeking legal remedies when their children have been taken to other countries without their consent.

The Abduction Convention does not address who should have custody of the child, or where the child should live.

It addresses the question of under which legal jurisdiction a parental child custody case should be decided. Under the Hague Abduction Convention, it is generally held that the country of the child’s habitual residence is determined to be the appropriate jurisdiction where the legal authorities in that country should make a parental custody decision in the best interests of the child.

The Hague Abduction Convention exists so that nations with diverse legal frameworks can work together to solve international legal disputes. Korea is a Hague member country and has already ratified several other Hague Conventions, including the Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

Utilizing the Hague convention process in International Parental Child Abduction cases assists in bringing a swift conclusion to the separation between a child and his parents and lessens the significant emotional and psychological damage caused by the unlawful international parental child abduction.

Korea recently naturalized its 100,000th foreign-born citizen. The vast majority of the naturalized citizens came to Korea within the last 10 years. The number of foreign citizens living and working in Korea surpassed the one million mark for the first time in 2010.

Korea’s increasingly multicultural and diverse society will soon encounter many more situations in which Korean citizens, both children and parents, will be negatively affected by the anguish caused by international parental child abduction.

Without a legal mechanism such as The Hague Abduction Convention to address this heartbreak, Korean parents could be separated from their own children with little possibility of resolution.

By showing the foresight and wisdom to address this issue, Korea demonstrates it is both a citizen of the international community and a trailblazer for progressive civil society in East Asia.

Thursday, July 14, 2011

Prenuptial Agreements in Japan

By Jeremy D. Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.

Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes.

A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters.

Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.

There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract.

Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law.

In Japan, Article 26 of the Act on the General Rules of Application of Laws ( authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.”

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse.

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy.

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

• Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

• Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

• Should the agreement contain a choice of court clause as well as a choice of law clause?

• Should the agreement cover spousal maintenance as well as the division of assets?

• Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?

Tuesday, July 05, 2011

Israel’s Religious Divorce Requirement Discriminates Against Women

Israel’s divorce law requires that Jews in Israel must be divorced only in the Jewish religious courts.  Clearly this discriminates against women since only a husband has the right to grant his wife a divorce (a “get”) of his own free will. This religious requirement leads to a host of further discriminatory consequences.

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) has now issued a report concluding that Israeli law in this regard is discriminatory and should be changed.

The Israeli member of the panel, Ruth Halperin-Kadari, -- who is a well-recognized legal scholar and the head of Bar-Ilan University's Rackman Center for the Advancement of Women's Status – reportedly applauds the demand (see the Haaretz article below).

She states that that this is the first time that a UN committee has so clearly stated that Israel must allow civil marriage and should do all it can to end the discrimination against women in family law.

The UN report states that:

"Noting that all Jews in Israel can be married and divorced only in the rabbinical courts, which are male dominated and completely governed by religious law, the Committee is concerned about discrimination against women in the context of divorce in such courts, in that only the husband has the right to grant his wife divorce (the “get”) of his own free will. The Committee also expresses its concern at recent cases of retroactive invalidation of divorce, to the detriment of Jewish women. The Committee is further concerned about the continuing practices of polygamy and under-age marriage of girls that are legitimized under different religious laws governing personal status.
49. The Committee calls upon the State party to:
(a)     Introduce an optional system of civil marriage and divorce available to all;
(b)     Harmonize religious laws currently governing marriage and divorce with the Convention and eliminate provisions that are discriminatory against women, including by prohibiting the man’s unilateral power to grant the “get”, prohibiting the possibility of extorting concessions from women in return for the “get” as well as the practice of retroactive invalidation of divorces, and by further limiting the scope of rabbinical courts' jurisdiction to matters of marriage and divorce alone;
(c)     Ensure that rabbinical court judges are provided with training on the Convention, with special emphasis on article 16 as well as domestic violence;
(d)     Take active measures to enforce the prohibition of bigamy and current exceptions under which it is allowed and polygamous marriages, as called for in the Committee’s general recommendation No. 21; and
(e)     Take effective measures to enforce adherence to the minimum age of marriage, and, in this respect, take measures to raise the minimum age of marriage to 18 years for both women and men."

The Haaretz article states that:

"UN committee: Israel must allow civil marriage

Haaretz, July 5, 2011

There is no meaningful equality in Israel between men and women when it comes to matters relating to marriage and family relationships, according to a new UN report.
The report was compiled by a panel of experts overseeing implementation of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. The panel submitted its conclusions to Israeli authorities in February of this year.

The panel, which includes representatives from several countries, receives reports on gender issues every four years. These reports are based on each country's official statistics, as well as reports by non-governmental organizations, and interviews of state officials conducted by the panel members.

Prof. Ruth Halperin-Kadari, who heads Bar-Ilan University's Rackman Center for the Advancement of Women's Status, is a member of the panel. The Rackman Center is about to publish a guide to the international convention and the conclusions of the oversight committee that will include the recommendations made to the Israeli authorities.

"There's a huge gap between rights that are formally granted, and the lack of implementation and enforcement of the laws," said Halperin-Kadari.

Halperin-Kadari added that this was the first time that a UN committee had so clearly stated that Israel must allow civil marriage and do all it can to end the discrimination against women in family law.

The committee also stated that domestic violence and violence against women were still widespread in Israel. The panel also expressed concern over the scope of trafficking in women and the wide income gaps between men and women"