Friday, January 21, 2011

China-Conflict of Laws

China has now adopted its first law on the conflict of laws.

Chapter 3 deals with foreign-related marriage and divorce issues. However, Chapter One is also relevant to any such case.

Specifically with respect to divorce, the new law provides that if the parties themselves do not choose the law that will govern their divorce, the law of their common habitual residence shall be applied.

If there is no such common habitual residence, the law of their common nationality shall be applied or otherwise the law of the place where the agency responsible for completing the divorce formalities locates shall be applied.

Go to my website for the full text:

Thursday, January 20, 2011

International Pre-Nuptial Symposium

I will be speaking in London on international prenups at the event described below.

Speakers: Charlotte Butruille-Cardew, Nicholas Francis QC, Jeremy Morley, Geoff Wilson
Chairperson: David Salter
Location:  Charles Russell, 5 Fleet Place, LONDON EC4M 7RD
Date: 8 March 2011

Accreditation/Professional Development
Solicitors Regulation Authority: 3 hours 15 minutes
ILEX: 3 hours 15 minutes
Bar Standards Board: 3 hours 
Get up-to-the minute information on domestic and international pre and post nuptial agreements including: 
  • How to draft effective agreements
  • Recognition and enforceability in the international arena
  • A comparative review of international matrimonial property regimes
  • A greater understanding of the principles underlying agreements
  • How to opt out of the relevant marital property regime
  • The limitations of such agreements  
Increasing numbers of international travellers, living and working abroad coupled with rising divorce rates, have led to an increase in the number of individuals entering into pre and post nuptial agreements to protect their assets on relationship breakdown.  This is an essential seminar for all ancillary relief lawyers advising high net worth individuals with international connections.  It will help you to cut through the complexities of domestic and foreign law so that you can deal more effectively with multi-jurisdictional issues when advising clients.    
The seminar will focus on the disparity in divorce laws in England and Wales, Australia, France and the USA in particular New York.  You will leave armed with the necessary strategy and know-how to provide up-to-date advice on capital division and spousal maintenance in international cases involving marital agreements. 
This experienced speaker team will walk you through considerations at the initial client interview, how to draft effective agreements through to recognition and enforceability.  They will highlight the complexities and pitfalls that arise at each stage of dealing with international pre and post nuptial agreements and satellite proceedings. 
An international seminar brought to you by Family Law in association with the International Academy of Matrimonial Lawyers.  

What is included? 
  • International guidance on best practice and current trends in pre and post nuptial agreements
  • Unique course material developed especially for this event
  • A review of international marital property regimes
  • Comprehensive notes to refer to after the event
  • Expert insight and analysis from a leading international speaker panel
  • Plus! Attendees can purchase Family Law publications at a 20% discount 
Who should attend? 
Family lawyers and advocates advising clients with international connections 

Saturday, January 15, 2011

Israel – Religious courts assert authority over dissolution of civil marriages

By Yair Ettinger Haaretz 1-14-11

Three recent rabbinical court rulings have asserted far-reaching and controversial authority in divorces of couples married in a civil ceremony.

The Interior Ministry requires Jewish couples to provide proof of divorce from a rabbinical court to get their divorce registered, regardless of how they married.

But a recent ruling by the Netanya Rabbinical Court stated that in such cases, the rabbinical court also has authority in matters of child support, custody and joint property. Jewish law recognizes civil unions, it said, and therefore may also discuss their dissolution.

The ruling contradicts a 2006 High Court of Justice decision that if the divorcing couple wed in a civil ceremony, all such matters must be handled by civil rather than rabbinical courts, since the latter "deny the property-related manifestations of their married state," as then-Supreme Court President Aharon Barak put it.

Two other rabbinical courts, in Tel Aviv and Haifa, went even further, saying they were authorized to discuss conditions set by the husband for divorce, just as they do in religious divorce cases.

In the Haifa ruling, issued in November, the husband - who is allegedly violent toward his wife - did not want the divorce. The court therefore refused to dissolve their civil marriage.

The Netanya court heard the case of a Jewish couple that married in Cyprus in 1998 and now has two children. Unusually, the husband began divorce proceedings in the rabbinical court rather than a civil one, and also asked it to rule on child support and property division. The wife objected, but the court sided with the husband and heard the case.

According to Prof. Ruth Halperin-Kaddari, head of Bar-Ilan University's Rackman Center for the Advancement of Women's Status, the rabbinical court judges "are bringing tens of thousands of couples who chose not to marry through the Chief Rabbinate under their control."

In contrast, Prof. Eliav Schochetman, a lecturer in Jewish law at Sha'arei Mishpat college, termed the move positive, saying that far from denying women's rights, the rabbinical courts are treating women married in civil unions as married women in every respect. But Halperin-Kaddari called that view "naive."

The 2006 High Court ruling essentially adopted the view of the Rabbinical Court of Appeals that civil marriage had some standing in Jewish law, but could be terminated by rabbinical courts in a fairly simple process. However, the justices continued, rabbinical courts could not discuss other divorce-related issues, such as child custody or property, lest the husband seek to exploit provisions of Jewish law that favor the man in order to deny the woman her rights.

The Netanya Rabbinical Court based its ruling on what is termed "custom of the state," referring to a 16th-century point of Jewish law that dealt with women forced to convert to Christianity who then married other forced converts. This concept held that even though these were essentially civil marriages, the women nevertheless had property rights, just as they would in a Jewish marriage.

Batya Kahana-Dror, who heads Mavoi Satum, a group that assists women who are denied religious divorces, responded to the rulings by calling for an overhaul of Israel's marriage and divorce laws. "Once again, we see that civil marriage is not immune to the rabbinical courts," she said.