Thursday, October 31, 2013

Hundreds of Italian couples accused of fraudulently getting 'quickie divorces' in UK

Britain’s top family judge has been asked to cancel 180 divorces after being told the UK courts have been exploited in a massive “fraud” by Italians seeking a quick end to their marriages.

The couples from the devoutly Catholic country have assumed fake British residency in order to use the UK justice system to split up, avoiding the lengthy and costly Italian divorce process.
Court officials spotted the scam after realising that in 179 of the cases, one of the divorcing parties had given the same home address in the High Street, Maidenhead, Berks, which was not a residential property but the home of a post box.
Sitting in the High Court on Wednesday, Sir James Munby, president of the Family Division, was asked to overturn the decrees nisi and decrees absolute which have been granted in all 180 cases.
Italian couples face a mandatory three-year legal separation period, but can circumvent this using European Union legislation that recognizes divorces granted in any member state.

After obtaining foreign residency, they can in most cases file for divorce after six months, with Romania, in particular, reportedly becoming a destination of choice for Italian divorce tourists.
But it is illegal to use a bogus residency for these purposes.

Simon Murray, for the Queen's Proctor - the lawyer who represents the Crown if intervention is needed in divorce cases - told Sir James that the UK had been targeted, saying: “It seems that this was, as expected, a fraud.

“Italian couples were charged some 4,000 euros in each case for a fast-track divorce, with a Post Office office box in Maidenhead being used to establish residency. The decrees should be rescinded.
“It is a requirement of the Law of England and Wales that a person seeking a divorce in the English and Welsh Courts has been habitually resident in England for a period of at least one year immediately before issuing a petition of divorce, or that the respondent was habitually resident within the jurisdiction.

“The English and Welsh Courts have no jurisdiction to consider divorce applications by parties who are both resident abroad. It has come to the attention of the Queen's Proctor, whose role is to protect the integrity of the divorce process, that 180 petitions for divorce, involving Italian residents, have been advanced on a false basis.”

In the 180th case the individual asking for a divorce claimed to live in Epsom, Surrey, while in all the cases the spouses being divorced claimed to live in Italy.

Mr Murray said: “On the facts currently available, it appears that residence requirements were not met in any of the said 180 petitions. If this is so, the Queen's Proctor submits that the court had no jurisdiction to entertain the proceedings and, that being so, all of the certificates and decrees made in those proceedings should be rescinded and each of the petitions dismissed.”

The barrister claimed that 178 out of the180 couples had agreed not to oppose their divorces being annulled after being contacted.

He also told the judge that a representative of the Italian government was in court to observe proceedings with the Thames Valley police.

The High Court hearing continues.

Monday, October 28, 2013

England and Foreign Divorces: A Second Bite of the Cherry?

This article was published in the New York Law Journal
October 24, 2013
American family law practitioners handling a divorce case with a significant English connection should understand that, even if a U.S. court has properly granted a divorce and handled its financial consequences, an English court might allow the ex-spouse to subsequently bring suit in a court in England seeking a more generous award.
England (and Wales) has a special procedure—known to its family bar as a "Part III claim"—whereby an ex-spouse whose foreign divorce resolved the financial consequences of the divorce can bring a new case for a "second bite of the cherry."
Part III of the U.K.'s Matrimonial and Family Proceedings Act of 1984 provides, in essence, that if England has divorce jurisdiction, or if it does not but the parties have an interest in a matrimonial home in England, then, even though a foreign court has issued a divorce and made a financial award, an English court may, in its discretion, make a subsequent financial award if justice so requires.
Since England is renowned—with ample justification—as the best place in the world for a less-wealthy spouse to divorce a more-wealthy spouse, the English procedure can yield great opportunity to a disgruntled already-divorced spouse and can create tremendous risk to the other party.
There is no need to establish that the foreign court acted unlawfully or unjustifiably or that the foreign proceeding was tainted by fraud or by any other factor.
The benefits of English divorce law for a less-wealthy spouse include the following, among many others:
• All of the parties' assets, both premarital and post-marital, are in the "pot" that can be divided by the courts.
• In a reasonably lengthy marriage the starting point for considering how to divide the pot will be 50-50.
• If there is insufficient capital to compensate a spouse for the improvement during the marriage of the other spouse's career or for a relationship-generated disadvantage suffered by a spouse who has, for example, sacrificed a career for the family, the English courts may award a compensatory factor in a spousal maintenance award.
• The English disclosure rules are strong, and the English courts will make strong inferences against a party who fails to make full and frank disclosure.
• The English courts will fully evaluate assets that are held in trust or corporate form if they believe that one spouse is the true owner of such assets.
• In big money cases the courts may require the wealthier spouse to fund a spousal maintenance award in the form of an up front lump sum.

The Process
In order to initiate the Part III process, an applicant applies first without notice to the other party by setting forth in writing the basis for a claim that a foreign court's order was financially insufficient and that the matter has a sufficient English connection. The second step is then a final hearing. If the application is successful, the English court can make such "order for financial relief" as it deems fit. In effect, it can issue the very same orders that it would have made if the divorce had actually taken place in England.
The governing legislation requires the English court, in deciding whether to grant permission under Part III, to consider many factors, specifically including the following:
(a) The connection the parties have with England and Wales;
(b) The connection they have with the country in which the marriage was dissolved or annulled or in which they were legally separated;
(c) The connection they have with any other country;
(d) Any financial benefit that the applicant or a child of the family has received, or is likely to receive, in a different country;
(e) The financial relief given by the country where the divorce took place and the extent to which the order has been complied with or is likely to be complied with;
(f) Any right that the applicant has, to apply for financial relief from the other party under the law of any other country;
(g) The availability in England and Wales of any property in respect of which an order could be made;
(h) The extent to which any order made under Part III is likely to be enforceable; and
(i) The length of time that has elapsed since the date of the divorce, annulment or legal separation.

Flexible Approach
The leading case on Part III is Agbaje v. Akinnoye-Agbaje [2010] UKSC 13. The parties were divorced in Nigeria, where they were born. They had dual Nigerian and British nationality. They resided in Nigeria for most of the marriage but they owned a second home in England. The husband was a barrister in Nigeria. After they separated the wife moved to England. Four years later the husband sued for divorce in Nigeria. Six months later the wife initiated a competing divorce case in England. The Nigerian court required the husband to provide a life estate in certain real estate to the wife and to provide her with a modest lump sum for spousal maintenance.
The then-former wife then brought a Part III case in England on the ground that she lived in England and that the Nigerian order was severely detrimental to her and compelled her either to live in England in poverty or to return to Nigeria against her wishes. The trial court upheld those claims, and the U.K. Supreme Court ultimately affirmed an order under Part III which required the ex-husband to transfer to his ex-wife a share in the proceeds of sale of the house in London.
In its judgment the Supreme Court insisted that there must be a flexible approach to determining whether to allow a Part III application. It declared that the courts have broad discretion in these cases to avoid "injustice," but it failed to provide much "meat on the bones" as to just how that should be accomplished. It declared that, on the one hand, "mere disparity" between a foreign award and what would be awarded on an English divorce "will certainly be insufficient to trigger the application of Part III," but on the other hand it also insisted that, "Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction."
Likewise, there is flexibility as to whether, having allowed a Part III application, the English court should determine the financial issues as if the case had been originally brought in England or should instead provide a more limited remedy. The court in Agbaje distinguished between two situations. It stated that if the English connections of the parties are very strong, the English courts should generally apply the English concepts of "fair" sharing of all of the assets of the marital partnership.
Under the famous cases of Miller/Macfarlane [2006] UKHL 24 and their progeny that would include sharing of both the premarital and post-marital assets of the parties. It would also include the English view in a "big money" case that there should be a "clean break" so that a financially weaker party should be provided with ownership of an appropriate residence and a lump-sum capital payment for projected spousal and child support.
On the other hand, however, the Supreme Court held that if the connection to England is not strong and a spouse has received adequate provision from the foreign court it is not appropriate for Part III to be used simply as a tool to "top up" that provision to that which he would have received in an English divorce.

Addressing 'Needs'
Agbaje was followed last year in Z. v. A. [2012] EWCA 1434. There, the parties were divorced consensually under Sharia law in an undisclosed foreign country. The husband was very wealthy but the wife also had substantial assets. The wife was allowed to pursue a Part III claim in England, despite the foreign divorce. However, the judge found that it was not appropriate to apply the English notions of sharing and compensation and ruled instead that the wife's claim should be assessed purely on the basis of her (and the child's) needs. (But note that "needs" in England means "needs generously interpreted," Miller/Macfarlane, supra). This was apparently because the parties were connected to several jurisdictions globally, although the judge went out of his way to say that judicial discretion in this area was remarkably unfettered.
Ultimately, the husband was ordered to pay a multi-million-pound lump sum, two-thirds being for the purchase of a substantial residence and one-third for capitalized spousal maintenance, together with substantial child support, which was ordered to be secured due to the husband's globe-trotting lifestyle.??

Substance Over Form
Most recently, in M. v. M. [2013] EWHC 2534 (Fam), an English court awarded £53 million to a Russian ex-wife even after she had procured a divorce in Russia. The English court accepted her claim that she had been unaware that the courts of England and Wales had jurisdiction. The parties, both Russian, had lived in the UK since 2005. The ex-wife traced assets, primarily in Russia, that her ex-husband held in a network of complex offshore corporate structures. The ex-husband refused to participate in the English proceedings and was found in contempt of court "many times over" for his breach of court orders and for repeatedly failing to disclose his assets. As a consequence, the court drew adverse inferences against him. The English court applied the full "sharing principles" of English law.
The M. v. M. court also applied England's broad principles of disregarding the form and looking to the true substance of the ownership of alleged marital assets. The ex-husband had asserted that various properties were owned by various companies as part of a planned tax-mitigation scheme, which necessitated both the beneficial (as well as the legal) interest in the properties being held by the companies. The judge found that the properties were held in a resulting trust by the companies for the husband. He ordered that the properties must be transferred to the wife.

Thus far, the English decisions in Part III cases have been applied primarily in cases outside the European Union and the United States. Nonetheless, the principles of the recent case law could well apply just as well to cases emanating from the United States. This should serve as a warning—or as an opportunity—to clients and astute counsel handling cases in the United States that have a significant English connection.

Tuesday, October 08, 2013


Shiite woman call on council to revise custody laws
BEIRUT: Nadine, 23, is allowed to see her young son for 24 hours once a week. It’s an injustice, she said, one she’s faced since a Shiite sheikh granted her and her ex-husband a divorce one year ago.
“This is minus the 10 hours that he sleeps, so I actually see my son 14 hours a week,” said Nadine, whose toddler wandered among the protesters.
She joined a dozen other women and a few men Saturday afternoon picketing in front of the Higher Shiite Council to demand that it revise its custody laws to be fairer to women.
Family law in Lebanon falls exclusively under the jurisdiction of religious courts, meaning each sect dictates rules regarding marriage, divorce, inheritance and custody. For Shiites, fathers automatically gain full custody of boys aged 2 years old. Mothers can keep their daughters until they reach 7 years old.
Nadine was one of several women at Saturday’s demonstration who are severely limited in the amount of time they can spend with their children. The women said there were many more like them, but that most divorced Shiite women were afraid to speak up.
Zeina Ibrahim, from Protecting Lebanese Women, an NGO that calls for more equitable religious and public policy, led the protest. She and her peers held up signs reading: “This law in our religion cuts me inside,” “You can’t take my children in the name of religion,” and “Shame on patriarchy and injustice.”
“The injustice inflicted on women regarding the issue of the age of custody is no longer bearable,” Ibrahim said, reading a prepared statement to a handful of reporters. “We came today to stage a sit-in in front of the Higher Shiite Council to say aloud ‘Stop taking women’s and children’s rights lightly, and enough with patriarchy under the cover of religion.”
Ibrahim also accused the Shiite religious establishment of corruption, bribery and favoritism.
In Nadine’s case, it was not the father, but his family who tried to keep her at arm’s length.
After the divorce, her in-laws limited time with her son to 14 hours every 10 days. She took the case back to court, where a sheikh told her if he could give her son to her permanently, he would, but he had to follow the law.
“He said, ‘If it were up to me, the baby should stay with the mother,” Nadine said.
Lebanon’s Sunni sheikhs allow the father to gain full custody of the children once they’re 12 years old, Ibrahim told The Daily Star. PLW was calling for the same from their Shiite counterparts.
Even the country’s main Shiite schools of thought disagree on which age a father should gain custody of the children. For example, the late Sayyed Mohammad Hasan Fadlallah was sympathetic toward raising the age limit.
Disagreement among sheikhs leaves some room for hope among divorcees, and Ibrahim said she received a call from the office of Sheikh Abdel-Amir Qabalan, deputy head of the Higher Shiite Council, saying the council was open to dialogue.
“It seems that something positive is looming,” she said. “Qabalan is open for dialogue with us next week regarding this issue.”
And if he isn’t, she said: “We will take to the streets again ... the Lebanese woman will no longer keep silent regarding her rights and the rights of her children.”
October 07, 2013 By Beckie Strum The Daily Star



Friday, October 04, 2013

No Divorce of Swazi Marriages

See the article below, published Aug. 12, 2013

His Majesty King Mswati III has reminded the nation that there is no divorce in a marriage conducted under Swazi Law and Custom.

The monarch said there was no earthly forum that had the powers to declare a customary marriage null and void. Only death, the King said, can bring a customary marriage to an end. Of late, the kingdom’s courts have seen an upsurge of cases where individuals married under Swazi Law and Custom want their marriages nullified. This, the King said, was foreign to Swaziland.

His Majesty made this pronouncement a fortnight ago at Ludzidzini Royal Residence during the paying of bride price for one of King Sobhuza II’s daughters, Princess Khetsiwe, by the Samuels family from Velezizweni in Mankayane.
Princess Khetsiwe’s mother is Inkhosikati LaMatsebula – one of King Sobhuza’s wives.

“We urge the Samuels to be together until death does them apart because according to our customs and traditions, once a couple gets married the traditional way, nothing can undo that marriage. Only death can undo that marriage. There is no divorce; that is unknown to us. Once we do it the Swazi way and complete the whole marriage process then it becomes a done deal.”

Continuing, the King said: “We do not even need to sign any documents to prove that marriage because you find that in future such documents are torn apart when some members of the family say the marriage is not in existence and, therefore, the documents should be torn. We do not have such under Swazi culture; we do not encourage it and practice this. All we know is that a person dies at their marital home. That is the Swazi way which was designed by God.”

The King said once a woman was smeared with red ochre (libovu), that meant the person was now a wife and therefore cannot be smeared with red ochre again by another family.
Red ochre is a substance that a woman is smeared with during a ceremony known as kuteka, which is one of the early stages in customary marriage.

“Once you are smeared with red ochre, it is not like in a marriage where you can divorce and then go on to sign another marriage document with another man. Once you are smeared with red ochre, no other family can also do that to you because that would be taboo to them. Nothing would ever go well for that family.”

The King said even if a wife was to desert her husband, she would be fetched to mourn him once the man died.  He noted that Swazi customary marriage was good and therefore encouraged that the youth should be taught about it. “The youth should know that once you get married traditionally, that marriage cannot be undone, yet other foreign forms of marriage can be undone,” said the King.

However, Human Rights Advocate Sipho Gumede has noted that divorce also exists in Swazi Law and Custom.

The Lawyers for Human Rights Secretary said according to Swazi Law, there was a process referred to as ‘Kumbuyisela ekhaya’ (reuniting a married woman with her parents or relatives), which is similar to divorce.

The senior lawyer claimed that divorce existed in Swazi Law and Custom because the process of accompanying a wife to her parental homestead, if she had committed adultery or witchcraft, meant that she was being divorced by her husband.

“Every marriage can be divorced, that is why even according to Swazi Law and Custom, a wife can be referred back to her parental homestead if she has committed adultery or witchcraft. The fact that the wife is taken back to her parental homestead, if she has committed an offence such as witchcraft, effectively means she gets divorced with her husband,” Gumede said.

Wednesday, October 02, 2013

Uniform Act on Premarital Agreements


September 19, 2013 – The Uniform Premarital and Marital Agreements Act was included today by the Council of State Governments (CSG) as “Suggested State Legislation” at the CSG’s National Conference in Kansas City, Missouri.  The Uniform Premarital and Marital Agreements Act, drafted and approved by the Uniform Law Commission (ULC) in 2012, is a new state law that brings clarity and consistency to a range of legal agreements between spouses or those who are about to become spouses.  It was enacted this year in Colorado and North Dakota.

A number of states currently treat premarital agreements and marital agreements under different legal standards, with higher burdens on those who wish to enforce marital agreements.  However, the Uniform Premarital and Marital Agreements Act treats premarital agreements and marital agreements under the same set of principles and requirements.

The Uniform Act also addresses the varying standards on both types of agreements that have led to conflicting laws, judgments, and uncertainty about enforcement as couples move from state to state.  The Act harmonizes the standards in existing uniform acts governing premarital and marital agreements (including the Uniform Premarital Agreement Act, Uniform Marital Property Act, Uniform Probate Code, and Model Marriage and Divorce Act).   The Act also addresses waivers of rights at death by agreement and requires explicit knowledge of other waivers.  Waivers and unconscionability are also addressed with provisions relating to domestic violence.

Forty years ago, state courts generally refused to enforce premarital agreements that altered the parties’ right at divorce, on the basis that such agreements were attempts to alter the terms of a status, marriage, or because they had the effect of encouraging divorce.  Over the course of the 1970s and 1980s, nearly every state changed its law, and currently every state allows at least some divorce-focused premarital agreements to be enforced, though the standards for regulating those agreements vary greatly from state to state.

The Uniform Premarital Agreement Act was promulgated by the ULC in 1983; since then, it has been adopted by 26 jurisdictions.  The Uniform Premarital Agreement Act brought some consistency to the legal treatment of premarital agreements, especially as concerns rights at dissolution of marriage.

However, the situation regarding marital agreements has been far less settled and consistent.  Some states have neither case law nor legislation, while the remaining states have created a wide range of approaches.

The general approach of this new Uniform Act is that parties should be free, within broad limits, to choose the financial terms of their marriage.  The limits are those of due process in formation, on the one hand, and certain minimal standards of substantive fairness, on the other.

Further information on the Uniform Premarital and Marital Agreements Act can be found at the ULC’s website at

About “Suggested State Legislation”
Suggested state legislation is a compilation of draft legislation from state statutes on topics of current interest and importance to the states.  For more than 60 years, The Council of State Governments’ Suggested State Legislation (SSL) program has informed state policy-makers on a broad range of legislative issues, and its national Committee on Suggested State Legislation has been a model on interstate dialogue.

SSL Committee members represent all regions of the country. They are generally legislators, legislative staff and other state governmental officials who contribute their time and efforts to assisting the states in the identification of timely and innovative state legislation.

About the Uniform Law CommissionThe Uniform Law Commission is comprised of more than 350 practicing lawyers, governmental lawyers, judges, law professors and lawyer-legislators, who are appointed by each state, the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state laws where uniformity is desirable and practical.  Now in its 122nd year, the ULC has provided states with over 250 uniform acts that help bring clarity and stability to critical areas of state statutory law.

About the Council of State GovernmentsThe Council of State Governments is the country’s only organization serving all three branches of state government.  CSG is a region-based forum that fosters the exchange of insights and ideas to help state officials shape public policy. This offers unparalleled regional, national and international opportunities to network, develop leaders, collaborate and create problem-solving partnerships.