Thursday, March 31, 2011

Russia - England High Profile Divorce Case



The hot-off-the-press decision of the English Court of Appeal in a Russia-English divorce case is most interesting. Stay tuned for analysis. Meanwhile today’s Daily Mail article, below, must suffice.


£2.85m in London court after ex-husband loses his bid to have divorce settled in Russia
By Daily Mail Reporter 31st March 2011

A Russian wife accused of taking advantage of the English courts to secure a big money divorce has been handed a £2.85million payout after an 18-month marriage, amid claims the decision could 'open the floodgates' for so-called divorce tourists.
Fashion student Elena Golubovich, 27, and international financier Ilva Golubovich, 26, married in August 2007, and lived together at their £4m London home until they split in July 2009.
The couple, who are both the children of rich Russian families, spent money 'at a prodigious rate, providing themselves with an indulgent standard of living', according to a judge.
Some £2million went during the months of their whirlwind marriage, in which they had one daughter, now aged two, and the pair earned nothing in the UK at all.
In early 2009, the breakdown of the marriage saw Mr Golubovich head to the Russian Courts, while Mrs Golubovich attempted to bring proceedings in the UK, as differences in the law meant she stood to get a bigger payout here.
She succeeded in having the Russian divorce invalidated by a High Court judge in the UK, only to have that decision overturned by the Appeal Court last July.
Despite that ruling, Mrs Golubovich still had a claim to a share of Mr Golubovich's UK assets under the Matrimonial and Family Proceedings Act.
And, in August last year, Mr Justice Moylan sitting in the Family Division of London's High Court, ordered Mr Golubovich to pay his ex-wife £2.835million, to meet a lump sum and her legal costs.
That decision was immediately challenged, with Justine Johnston, for the husband, arguing that the award was out of proportion to the length of the marriage.
She said almost all of his wealth came from his parents and could not be counted as assets of the marriage - and also that the case had no place being dealt with in the English courts.
Now Lord Justice Thorpe, Lord Justice Etherton and Mrs Justice Baron, sitting at London's Appeal Court, have upheld the Family Court award, despite warnings from Miss Johnston that doing so would 'open the floodgates' and 'inundate' the British courts with divorce tourists.
The court heard that the couple lived all their married life in the UK using the husband's mother's luxury flat in Kensington. Mrs Golubovich, 27, also owned a £600,000 flat in nearby Cornwall Gardens.
Their links to Russia were such that the Appeal Court found that the Russian divorce ought to be allowed to stand, but their life in London was enough to allow the wife to make a claim on her ex-husband's British assets in the family court, Lord Justice Thorpe ruled today.
Miss Johnston, whose client is currently 'exiled' from the UK by an order for his committal to prison made after he failed to pay out the sums ordered by the courts to his ex-wife, argued that the Family Court judge ought not to have given the wife a penny.


INDIA’S DOWRY / 498a LAW

We have commented previously on the abusive “498a Law” that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands.  Please see:
The Home Ministry of the Government of India has requested the Law Commission of India “to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.”  
See the article below for a new discussion of this topic.
Dowry wars: The big issue that has India divided
The Independent
Andrew Buncombe, 2 March 2011
An intense lobbying battle is being fought as the Indian government prepares to amend landmark legislation introduced nearly three decades ago to protect women who were being attacked, harassed and even murdered for refusing to pay dowries.
Amid an increasingly vocal campaign by "men's rights" organisations, who claim the law has been misused in order to extort money from husbands, the government has asked its legal advisers to investigate and suggest options for reform.
Women's groups say the legislation is vital to protect countless numbers of brides against violent demands for dowries and must not be watered down. They claim that up to 25,000 Indian women are killed every year because of the inability or refusal of their families to make such payments to the family of grooms.
The payment of dowries was banned in India in 1961 but remains commonplace and may be on the rise. In 1983, Section 498a of the Indian penal code was introduced to offer additional protection to women, by ruling that any husband or member of his family convicted of "cruelty" or violence associated with attempting to force such payments should face up to three years in jail.
The culture war being fought in newspapers and between activists highlights subtle changes in Indian society and an increasing willingness among some women to report domestic abuse. Women's groups say the campaign by men to change the law is nothing more than a backlash from those opposed to female empowerment.
Mithun Kumar is typical of those who say the anti-dowry laws are being misused. The 30-year-old from Bangalore, employed in the IT industry, had an arranged marriage in 2007. He claims he discovered his wife was continuing to keep in touch with a previous boyfriend and wanted to maintain an affair with him. "She said if I didn't go along with it, I would go to jail," he said. Mr Kumar said his wife and her family then filed a case against him with the police, claiming he had demanded a dowry from them. He told the police he was innocent, but was arrested anyway. He is fighting the case in court.
Rajesh Vakharia, a self-employed 42-year-old from Nagpur, claimed his wife and her family made similar allegations five years after their arranged marriage in 1999. "I was held for six days in the police station," he said. "She wanted to extort money from me. I would not pay and fought the case. Eventually I won, but for fours years I was not able to see my son. What is happening in India is very sad. There is no protection for men."
The campaign to scrap Section 498a is being led by groups including the Save the Family Foundation. An official, Niladri Das, claimed men in India were increasingly resentful of "biased" laws. He said that more than 95 per cent of men charged under 498a were later acquitted and that was proof the law was being misused. "A woman can make any accusation she wants," he said. He said claims that 25,000 woman a year were killed was "a lie propagated by feminists in order to get money from international NGOs". He added: "We are not saying there are no cases, but these figures are highly inflated."
The government appears to agree with the men. Law minister M Veerappa Moily recently referred the legislation to the country's law commission, which advises the government on legal reform. The commission's chairman, PV Reddy, a former supreme court judge, said they would soon be publishing a consultative paper. "There is misuse, it's been referred to in court judgments," he said. "There is misuse in regard to any law, not just this one. But this is not an ordinary crime. It's about marital discord. It's a very sensitive issue."
Women's rights campaigners say any dilution of the act would be a big mistake. They argue that women face widespread sexual and physical abuse in India and say that if a law is being misused, then the police and courts need to act more efficiently rather than change it. They also argue that the continued practice of dowry payments in the country, and the attendant preference for male children, has helped contribute to the widespread abortion of female fetuses. The problem is so prevalent that in some parts of India there is a marked gender imbalance. A 2001 census found that in Punjab for every 1,000 boys there were only 793 girls.
Donna Fernandes, a veteran women's rights campaigner from Bangalore, said she knew of no empirical evidence that showed 95 per cent of men charged under Section 498a were acquitted. Furthermore, she insisted, an acquittal did not necessarily amount to a misuse of the law as women may withdraw an allegation because of pressure. She said: "Women are moving ahead. Today they are more economically independent. They don't need marriage. They say 'To hell with it if he can't respect me.'"
Ms Fernandes said her organisation, Vimochana, collected statistics from Bangalore that showed up to 100 married women were being murdered in the city every month, though not all were necessarily related to dowry payments. She added: "If this law is being misused, then why are so many women dying?"
Among those urging the authorities to retain the law is Girender Singh, from Delhi. His 24-year-old daughter Anshu was found dead in January last year, just 45 days after she was married. Mr Singh said Anshu's husband's family had repeatedly made demands for money and while he did not pay a formal dowry, he handed over around £6,000. His daughter's husband was arrested on a charge of murder and the case is before the courts.
Mr Singh declined to talk about Anshu's case but instead forwarded a copy of a letter he had sent to the authorities in which he expressed his "pain and agony" and asked they not dilute the legislation. "In truth, is there any law to save girls and married women in India except 498a?" he wrote. "A little fear of 498a might save the girls and women from heinous crimes which are on a rising trend in our great Indian society."

Tuesday, March 29, 2011

Singapore Ruling on Marital Agreements


We have previously reported that Singapore Court of Appeal has held that it will normally enforce prenuptial agreements or other marital agreements, at least if they were entered into in a foreign jurisdiction under whose law they are valid. (Singapore Prenuptial Agreements)
The Court determined in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009) 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.
Now, in AFS v AFU, [2011] SGHC 52 (7 March 2011), the Singapore High Court has followed the ruling in TQ v TR but has refused to enforce a Deed of Separation entered into in Singapore on the ground that the husband had violated an obligation to make full disclosure of his assets and expectancies before the parties had signed the Deed.
One year after the Deed was executed the husband’s company granted him a stock option of great value. The Court determined that the husband had had an expectancy of receiving the stock option prior to the date of the deed and that he had failed to disclose it to his wife.
The Court explained that the decision in TQ v TR held that an agreement between parties “cannot be enforced in and of itself”. The terms of an agreement would only constitute one of the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets concerned are to be distributed. Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.
Applying those considerations the Court awarded the wife 25% of the value of the undisclosed assets.
Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women’s Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore.
It also seems most likely that the Singapore courts will be influenced significantly by cases to be handed down in England under the authority of the English Supreme Court case of Radmacher.

Sunday, March 27, 2011

U.S. Prenuptial & Post-Nuptial Presentation

Many people have requested access to my PowerPoint presentation on U.S. Prenuptial & Postnuptial Agreements. The presentation can be accessed at this link.

The presentation was at the Symposium on International Pre- and Post-Nuptial Agreements hosted by Family Law in association with the International Academy of Matrimonial Lawyers on March 8 2011 in London.

It was "an essential seminar for all ancillary relief lawyers advising high net worth individuals with international connections." It focused on the disparity in divorce laws in England and Wales, Australia, France and the USA, in particular New York. Speaking at the seminar were Charlotte Butruille-Cardew, Nicholas Francis QC, Jeremy Morley, Geoff Wilson and the event was chaired by David Salter.

Tuesday, March 15, 2011

Law-Shopping & Forum-Shopping in International Prenuptial Agreements

Drafting prenuptial agreements is always challenging but the complexities are greatly magnified when the clients are international, whether in their citizenship, the location of assets, their employment or their residency, or because such international connections are anticipated or reasonably on the horizon.
In such situations lawyers have a responsibility to consider the impact of the different laws of the various jurisdictions with which the parties are connected or are likely to become connected. To do so they work with international counsel who have sophistication and experience in handling international prenuptial agreements and who can bring in appropriate  local counsel in selected jurisdictions relevant to the issues that the clients has raised or should have raised.
It is often sensible for counsel to propose a "home" for the prenuptial agreement that is not the jurisdiction in which the lawyer practices. In some cases such advice to a client is absolutely essential.
"Choice of law" clauses are common in the United States and they are usually upheld there, provided the parties had a significant connection with the chosen jurisdiction and provided also that the outcome does not violate the public policy of the forum state.
"Choice of court" clauses are also a common feature of US prenuptial agreements. While they can usually not oust a court's jurisdiction they may be useful in persuading a court that it should accept a case that is brought in the jurisdiction selected by the parties or that it should decline a case brought in another jurisdiction.
 "Shopping" for a suitable law and forum is not only appropriate but it may well be good practice - and some might argue that it is even an essential practice - whenever one represents an internationally-connected client with significant current or anticipated assets who wants to maximize the chances that such an agreement will enforced and/or who wants to include terms that might fall foul of a fairness test but which would more likely survive a test based on unconscionability.
Lawyers cannot guarantee the enforceability of pre- or post-nuptial agreements to clients, but they should steer clients to jurisdictions that are more likely to satisfy their goals.
For example, New York's public policy is to promote the resolution of issues between spouses by means of prenuptial and postnuptial agreements. That policy is reflected in a host of decisions from the New York courts upholding such agreements, including agreements that might well not be enforced in other jurisdictions.
For that reason counsel representing a client who has (or whose spouse-to-be has) a New York connection - whether based on current, prior or contemplated residency, current, prior or contemplated employment or other factors - should consider recommending that the parties make an express choice of New York law to govern their agreement.
Indeed, if such a choice is made, counsel might perhaps suggest that such a client should enhance the connections with New York by signing the agreement in that state and/or entering into the civil marriage there (even if the marriage festivity occurs elsewhere).
Since an English court might not enforce such an agreement, although very many jurisdictions around the world would do so, one might recommend that the parties should enter into two separate prenuptial agreements. One would be drafted with a view to English law and would apply only if the "stronger" foreign-oriented agreement were invalidated, either in whole or in significant part. Alternatively the agreements could provide that the "weaker" agreement would apply only if the financial issues were resolved in England while the "stronger" agreement would have priority if the financial issues were resolved elsewhere.
It is all too easy to refuse to look beyond one's own borders in these matters but international clients now expect us to do so.

http://www.familylaw.co.uk/articles/JeremyDMorley21022011

Jeremy D. Morley is a New York lawyer of English origin who concentrates on international family law. His law firm in New York handles many international prenuptial and postnuptial agreements, working with local counsel throughout the world. Jeremy is the author of International Family Law Practice, the leading treatise on the topic in the US and is a Fellow of the International Academy of Matrimonial Lawyers. He has taught in law schools in England, Canada and the United States. He maintains the www.international-divorce.com website and may be reached at jmorley@international-divorce.com.

Friday, March 11, 2011

How Did Japan Become a Haven for Child Abductions?

Time Magazine, March 7, 2011

Like any loving father, Christopher Savoie just wanted to do the best thing for his two kids. In August 2009, his Japanese ex-wife broke U.S. law and abducted their children from his home in Tennessee, moving them to Japan. But when Savoie went to get them weeks later, he was arrested. It didn't matter that he had legal custody in both countries, that his ex-wife had violated a U.S. court order or that there was a U.S. warrant issued for her arrest. Nor did the fact that Savoie was a naturalized Japanese citizen and fluent in Japanese make a difference. After 18 days in jail, Savoie returned to the U.S. empty-handed and brokenhearted. A year and a half has passed since then, and he is still unable to see his son and daughter, now 10 and 8.

Despite all this, Savoie's ex-wife is beyond the reach of international law. Japan has not signed the Hague Convention on the Prevention of Child Abduction, an international accord adopted by 84 nations that is aimed at returning abducted children to the country from which they were taken. Along with an increasing number of international marriages and divorces, child abductions to Japan — the only G-7 nation that has not signed the treaty — have been on the rise. In 2009, the U.S. State Department ranked Japan at the top of its list in reported abductions from the U.S. among non-signatory nations. "It is our understanding that no U.S. citizen child abducted to Japan has been returned to the United States," says Paul Fitzgerald, a U.S. embassy official in Tokyo. The issue could tarnish U.S.-Japan relations; as U.S. Assistant Secretary of State Kurt Campbell told reporters during a trip to Tokyo in February, "The situation has to be resolved in order to ensure that U.S.-Japan relations continue on such a positive course." 

Japan's antiquated family law complicates matters. In a Japanese divorce, child custody is awarded to only one parent — typically the mother. Visitation can be negotiated, but there is no legal enforcement, and agreements are often broken. In Japan, it's not unusual for the non-custodial parent to lose contact with his or her child, and domestic abductions, when they do occur, are often ignored by the police as a family matter. It's a devastating scenario for a growing number of fathers residing in Japan — both Japanese and foreign — who have few legal rights to see their children. "Clearly, the best legal scenario is for the children to be here in the U.S. where each parent would be guaranteed visitation," writes Savoie by e-mail.

International pressure for Japan to make a change has been mounting. Over the past year, several ambassadors from embassies in Tokyo have met with high-level government officials to urge Japan to sign the treaty. A Japanese government panel was set up in January to study the pros and cons, but opposition remains firm at most levels. Japanese lawmakers are worried the Hague Convention does not properly take into account past cases of domestic abuse or a child's own right to choose where he or she lives.
On Feb. 22, a Bar Association issued recommendations to the Japanese government, including a guarantee in domestic law that children not be returned to their country of residence if they were subjected to abuse or violence. Left-behind parents, including Savoie, say the recommendations are draconian and anti–joint custody, in part because abuse is both difficult to prove and commonly cited as one of the main reasons for abduction.

A Japanese woman, who uses the alias Keiko, says she left the U.S. with her child because she discovered her husband was abusing their son. "There were no obvious physical marks, so it would have been impossible to prove in court," Keiko explains tearfully. After consulting a therapist and an attorney in the U.S., she feared that getting sole custody as a Japanese citizen would be nearly impossible. "When we were in Japan, my son told me he feels safe, far away from his father ... I didn't really want to leave the U.S. I had a good job and many friends. But I wanted to do what was best for my son." Keiko is now one of about 50 members of the Safety Network for Guardians and Children, a support group for women who abducted their children to Japan from various countries. 

Finding a internationally recognized legal resolution to cases like Keiko's will not be easy. But in the meantime, Japanese mothers living abroad who have no intention of removing their children from their families are beginning to be affected by the problem. Jeremy Morley, a U.S. attorney specializing in Japanese child abductions, says foreign courts are "increasingly ordering Japanese mothers living overseas not to take their children to Japan even for a family visit because of Japan's status as a renowned haven for international child abduction." 

A winning diplomatic strategy will need teeth to make a difference for everyone involved. "The mantra now is 'Japan sign the Hague,' but that's not enough," U.S. Representative Chris Smith said during a recent trip to Tokyo. The New Jersey Republican, who chairs a subcommittee overseeing human-rights issues, is pushing for a bill that would establish an Office of International Child Abductions within the U.S. State Department to handle cases and discuss sanctions against uncooperative nations. "I don't know what the answer is," says Keiko. "But we need to find a solution that's in the best interest of the child."

Monday, March 07, 2011

Japan: Contested Divorce Laws


Jeremy D. Morley
www.international-divorce.com

Jurisdiction:

The statutory law in Japan contains no provisions concerning the jurisdiction of a Japanese court in cases concerning international spouses. The courts have held that the Japanese Family Court has jurisdiction over a divorce if at a minimum at least one party is a legal resident of Japan. The Court might exercise a discretion not to accept jurisdiction in certain cases where the parties are not significantly connected to Japan.

Divorce grounds: Article 770 of the Civil Code provides that there are five grounds for divorce:
i. Infidelity;
ii. Malicious desertion;
iii. Uncertainty whether or not the spouse is dead or alive for three years or more;
iv. Serious mental disease without hope of recovery; or
v. A "grave reason" (juudai na jiyu) which makes continuing the marriage impossible.

In determining the meaning of “grave reason,” the courts formerly focused on fault, meaning that the spouse who caused the marital breakdown could not secure a divorce. This was changed by a 1987 court ruling (Supreme Court, 2 September, 1987, Min-Shu No. 41-6, p. 1423) in which a petition for divorce by the spouse responsible for the marital breakdown was accepted on the condition that this spouse was acting in good faith, as determined by three conditions which had to be met to protect the interests of the weaker party in the divorce proceedings. The three conditions were 1) separation for a considerable period of time, 2) absence of dependent children, and 3) absence of mental or social hardship. This case led the way for more acceptance of no-fault divorce. However, the older cases indicated that there needed to be a considerable period of separation (5+ years). Currently, the courts consider not only the length of the separation but also “such other factors as society’s evaluation of the effects of the passage of time after the start of the separation.”

The issue of grounds is a contested issue only if the other party asserts that the allegation of a ground is false.

Mediation: Mediation is required before a contested divorce case can proceed in Japan, as provided in Art. 18(1) of the Code of Family Affairs Adjudication. Very occasionally such mediation can be avoided, but only in quite exceptional circumstances. A successful mediation my lead to a settlement agreement that, upon proper recording, may have the same effect as a final judgment.
Financial issues: Pursuant to Article 768 of the Civil Code of Japan, the Family Court has jurisdiction to divide the assets of the parties if a party in a divorce case files an ancillary complaint asking the Court to exercise its jurisdiction to do so and if the parties are unable to agree on such matters. Article 768 (3) of the Civil Code provides the Family Court with what, on its face, is an extremely broad discretion in exercising its jurisdiction. In the usual case there will be an equal division of assets; however, we have collected some authorities in which the Japanese court has given special consideration to the special talent and industry of a spouse.
Cut-off date: Although not statutory, the rule has been established through jurisprudence that the date of the separation of the parties is the relevant date for purposes of identification of assets. This can be of critical importance in many cases in Japan.

Interim orders: The Family Court has the power to issue temporary restraining orders such as an order of provisional attachment prohibiting a spouse from disposing of property until the final determination and an order of temporary support.

Spousal support: There is no alimony in Japan. If a spouse is in financial difficulty then sometimes the court will exercise a discretion to give that spouse a larger share of the assets as part of the disposition of the case.