Will the Supreme Court Resolve the Meaning of Habitual Residence?

Jeremy D. Morley

Tom Wolfrum and I have petitioned the U.S. Supreme Court in the 9^th Circuit case of Murphy v. Sloan for a writ of certiorari on the issue of the interpretation of habitual residence in a Hague Abduction Convention case. The petition may be accessed through Westlaw at 2014 WL 6737443.

The essence of our petition is as follows:

1.                  The Supreme Court has never interpreted the term “habitual residence”, which is the key term of the Hague Convention. The Court has refused previous petitions on this issue on at least two occasions. Once the date of the wrongful act has been set, a finding of the child's habitual residence is the first issue that must be decided in every case that is brought pursuant to the Convention.

2.                  There is a gulf - that has widened dramatically in the past few years - between the majority U.S. interpretation of that term on the one hand versus, on the other hand, the diametrically opposed interpretation of the United Kingdom, continental Europe, most of the rest of the world and a minority of U.S. Circuits.

3.                  Moreover, the U.S. majority interpretation is clouded with uncertainty because, given the lack of any interpretation from “on top,” many “variations on the theme” have spawned.

4.                  The results of the Supreme Court's failure to act include the following:

(i) There is great uncertainty throughout the United States concerning the correct interpretation of the term habitual residence.

(ii) Recent Circuit Courts of Appeals decisions on point have not resolved or ameliorated the continuing split among the Circuits and resulting confusion.

(iii) The United States is isolated and entirely out of the international mainstream, in the unusual interpretation of the Convention's key term by a majority of its circuits

(iv) The United States is in breach of its treaty obligation under the Hague Convention to promote a consistent interpretation of the Convention and to afford “considerable weight” to the opinions of our sister signatories in interpreting any treaty. Abbott v. Abbott, 130 S.Ct. 1983, 1993 (2010).

(v) The United States courts are contravening the instructions of Congress, which directed in the International Child Abduction Remedies Act (“ICARA”) that there should be a “uniform international interpretation of the Convention.” See ICARA, 42 U.S.C. § 11601(b)(3)(B); Abbott, supra at 1993 (2010) (“The principle [of affording considerable to sister signatory interpretations] applies with special force here, for Congress has directed that ‘uniform international interpretation of the Convention’ is part of the Convention's framework. See § 11601(b)(3)(B)).”

 (vi) There has been an explosion of litigation concerning the interpretation of habitual residence in Hague cases in the United States.

(vii) There has been a surge in appeals to circuit courts on the issue of habitual residence.

(viii) Hague cases have become far more expensive to litigate than would be the case if the meaning of the term habitual residence had been clarified.

(ix) Hague Convention cases take far longer than would be the case if the term habitual residence were clear. By delaying the resolution of Hague Convention cases, the United States is in derogation of its treaty obligation - clearly recognized by this Court in Chafin v. Chafin, 133 S. Ct. 1017, 1027-1028 (2013) - to resolve such cases expeditiously. ( See Hague Convention, Article 2: “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available”; Hague Convention, Article 11: “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State … shall have the right to request a statement of the reasons for the delay.”).

(x) Likewise, as a result in significant part of the confusion and difficulties in applying the term “habitual residence,” the judicial authorities in the United States are often in derogation of the Congressional mandate that Hague Convention cases should be concluded promptly. The just-enacted Sean and David Goldman International Child Abduction Prevention and Return Act of 2014 requires the U.S. State Department to scrutinize more diligently the performance of other countries in returning abducted children expeditiously and to employ enhanced methods to cause non-complying countries to improve their performance, Congress also recognizes that “people in glass houses should not throw stones.” Accordingly, the new law expressly states that it is, “the sense of Congress that the United States should set a strong example for other Convention countries in the timely location and prompt resolution of cases involving children abducted abroad and brought to the United States.” Sec. 2(b) of ICAPRA.

(xi) The pending case exemplifies the problems that arise in this regard. The child was taken from Ireland to the United States for the summer, 2013. Her mother filed her petition on September 3, 2013. The only significant issue in the case is that of habitual residence. The mother diligently prosecuted the case and asked for expedited determination of the appeal, but the Ninth Circuit did not rule until August 2014 and the child is now missing a second year of school in Ireland. While the United States expects other countries to meet a target of only six weeks, including appeals, our conflicting and confused interpretations of habitual residence cause our own courts to miss the target by an embarrassingly excessive extent.

Hungary and the Hague Abduction Convention

Jeremy D. Morley

I reported in 2011 that “Having worked on international child custody matters concerning Hungary for several years, and having consulted with Hungarian counsel on such issues, it is unfortunately clear that Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.” http://www.international-divorce.com/ca-hungary.htm

The European Court of Human Rights has now reprimanded Hungary on three separate cases for flagrant violations of the human rights of left-behind parents whose children have been abducted to Hungary and have never been returned to their prior habitual residence.

i.                    Cavani v. Hungary

The European Court of Human Rights rendered its judgment in the case of Cavani v. Hungary (Application no. 5493/13), on 28 October 2014. In Cavani, the parents and children were habitually resident in Italy. The children’s mother abducted the children from Italy to Hungary in June 2005. The father then devoted several years of effort and enormous expense to trying to get his children back or at least to see them. He obtained custody of the children in Italy and arrest warrants there, but to no avail. He brought a case in Hungary under the Hague Convention but although the Pest Central District Court found that the mother was keeping the children in Hungary illegally in violation of Article 3 of the Convention, it refused to order their return to Italy because at their young age the children needed to be cared for by their mother. That ruling was in absolute violation of the Convention since “best interests” must not be considered in a Hague case.

The father appealed and the Budapest Regional Court ultimately ordered that the children should be returned to Italy. However, the Hungarian authorities never enforced that order despite the ongoing efforts of the father, recounted at length in the European Court’s ruling, throughout the next several years. The Hungarian authorities repeatedly claimed that they could not find the children. During all of this time the father never saw the children. Seven years after the abduction the children were found, but only because their school principal in Budakeszi, Hungary brought a court action in Hungary in which he stated that the children were in danger in their mother’s custody and asked that they be placed in state protection. By this time the children could no longer speak Italian and they were totally estranged from their father.

The European Court ruled that:

“the Hungarian authorities failed to take adequate measures to facilitate the reunification of the applicants and [it] considers that the applicants must have suffered anguish and distress as a result of the forced separation and the perspective of the father and daughters never seeing each other again.”

The Court determined that this constituted a clear violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that, “Everyone has the right to respect for his private and family life, his home and his correspondence.” However, the only award that it was empowered to make was a financial award to the father.

ii.                  Shaw v. Hungary  

In the case of Shaw v. Hungary (Case No. 6457/09, 26 July 2011), the European Court of Human Rights ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents’ divorce.

In Shaw, the family lived in France. In 2007 the mother took the child to her native Hungary for what was supposed to be a Christmas vacation. However the mother never returned the child. The father promptly brought a Hague case in Hungary and also obtained a custody order from the French courts but he never saw his daughter again.

A court in Pest, Hungary ordered the child’s return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court’s order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and the Hungarian officials thereafter continuously claimed that they could not find her or the child.

Having exhausted his remedies in Hungary the father ultimately brought suit against the State of Hungary in the European Court of Human Rights. He complained that Hungary had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter. The Hungarian government claimed that it had had done everything possible to try to secure the child’s return to France, but that the mother had absconded with the child which had temporarily prevented the authorities from taking any further measures.

Finding that the Hungarian state had violated the father’s rights to family life, the European Court ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses. However, the Court had no power to locate the child or to return the child to the father.

iii.                Prizzia v. Hungary

In the case of Prizzia v. Hungary (Case No. 20255/12), the European Court of Human Rights ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to honor and implement the rights of a left-behind American father to have contact with his abducted son living in Hungary.

In Prizzia the parents lived in Virginia with their son. The Hungarian mother took the child to Budapest for a Christmas visit in 2003 and then refused to return him. He promptly commenced a case in Hungary under the Hague Convention and traveled to Hungary on many subsequent occasions for the ensuing litigation. He lost at first instance on the improper ground that the mother was Hungarian and that it was better that her child live in Hungary. On appeal he won but the media in Hungary complained that American authorities were “bullying” the Hungarian authorities and the Supreme Court of Hungary changed its earlier ruling and refused to return the child on the ground that he should not be separated from his Hungarian half –brother.

The father then engaged in several years of intense litigation in Hungary to try to at least get access to his son.  A court in Budapest ultimately gave some limited access rights to him but those rights could not be enforced. Ultimately the father was able to see his son very occasionally but only in Hungary and he was never able to take his son for visits to the United States. The Supreme Court of Hungary eventually ordered that there should be summer visits to the United States but the authorities in Hungary failed entirely to allow those rights to be enforced.

When the father had exhausted his remedies in Hungary, he brought suit against Hungary in the European Court. That Court eventually ruled in 2013 – ten years after the child was abducted -- that Hungary had violated the Convention by failing to provide the father with effective rights of access to his son. Once again, the Court merely made a financial award to the left-behind parent for legal fees and for “having suffered anguish and distress as a result of the withering ties with his son and the insufficient measures taken by the Hungarian authorities.”

PRENUPTIAL AGREEMENTS IN SCOTLAND

Jeremy D. Morley

Prenuptial agreements are authorized by Scottish law.

Section 9 (1) of the Family Law (Scotland) Act 1985 provides the principles that a court in Scotland must apply when deciding what order for financial provision, if any, to make upon a divorce. Such principles include the principle that “(a) the net value of the matrimonial property should be shared fairly between the parties to the marriage.”

Section 10 (1) provides that, “ In applying the principle set out in section 9(1)(a) of this Act, the net value of the matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances.”

Section 10 (6) provides that, “In subsection (1) above “special circumstances”, without prejudice to the generality of the words, may include—

(a)    the terms of any agreement between the parties on the ownership or division of any of the matrimonial property.”

And Section 16 (1), entitled “Agreements on financial provision” provides that, “Where the parties to a marriage have entered into an agreement as to financial provision to be made on divorce, the court may make an order setting aside or varying…. (b) the agreement or any term of it where the agreement was not fair and reasonable at the time it was entered into.”

In practice, pre-nuptial agreements in Scotland are typically used to “ring fence” certain assets, in order to exclude them from the statutory definition of “matrimonial property.” Comprehensive prenuptial agreements that are designed to override the principles otherwise governing the division of matrimonial property on divorce are relatively unusual. Nonetheless prenuptial agreements are sometimes used in Scotland not merely to make provision for the division of property upon divorce but also to deal with rights to aliment (spousal support) after the breakdown of marriage and rights of succession in the event of death.

Prenuptial agreements in Scotland are sometimes said to be considered to be contracts, just like any other contracts, which are enforceable subject to the same kind of defenses that might apply to conventional contracts.

However, Section 16 of the Act creates a special exception for prenuptial agreements that were “not fair and reasonable at the time … entered into.” They must be entered into with care.

 

English Suspicion of Prenuptial Agreements

Jeremy D. Morley

The legal status of prenuptial agreements in England remains far from clear.

In the leading case, Radmacher v. Granatino, the U.K. Supreme Court in 2010 upheld the terms of a German marriage contract but it very carefully scrutinized the terms and the consequences of the agreement to determine whether or not they comported with the principle of “fairness.”  

Baroness Hale, the deputy president of the Supreme Court and the senior judge on family law cases in England who has almost single-handedly changed the English law on the division of divorcing spouses’ assets, issued a dissenting judgment in the Radmacher case.

Now, in a newspaper interview just a few days ago, Baroness Hale is reported to have stated as follows:

“I am very suspicious of prenuptial agreements” as they are designed “almost always to give someone less than they would otherwise be entitled to.”

In her dissent in Radmacher, the judge stated as follows:

 “Marriage is, of course, a contract, in the sense that each party must agree to enter into it and once entered both are bound by its legal consequences. But it is also a status. This means two things. First, the parties are not entirely free to determine all its legal consequences for themselves. They contract into the package which the law of the land lays down. Secondly, their marriage also has legal consequences for other people and for the state. Nowadays there is considerable freedom and flexibility within the marital package but there is an irreducible minimum. This includes a couple’s mutual duty to support one another and their children. We have now arrived at a position where the differing roles which either may adopt within the relationship are entitled to equal esteem. The question for us is how far individual couples should be free to rewrite that essential feature of the marital relationship as they choose.

Radmacher v. Granatino, [2010] UKSC 42, Para. 132 (emphasis added).

The U.K. Law Commission has recommended legislation that would introduce “qualifying nuptial agreements” as enforceable contracts which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution. These agreements, which would have to meet certain requirements, would not be subject to the court’s assessment of “fairness,” but they would be subordinated to an obligation not to contract out of providing for the “financial needs” of the weaker party.

The “financial needs” exception might appear at first blush to be innocuous and sensible. In fact, however, it would create a gaping chasm of uncertainty that would undermine the basic goals of predictability, simplicity and autonomy. The proposed exception is so broad and its terms are so vague that no one will really know how it might be applied to the facts of any particular case.

The Law Commission has proposed some kind of non-binding “guidance” about “needs” to assist decision-makers in their task of interpreting that term in specific cases, which serves to underscore the fact that there will be substantial uncertainty under its proposal as to what the exception will include and how it will be applied.

The bottom line is that the most recent remarks of Baroness Hale serve to underscore the fact that the enforceability of prenuptial agreements under English law remains “iffy”.

In my field of international family law, a marrying person with significant assets should still be most wary of the English courts’ potential interference in any prenuptial agreement.

It should also be noted that in the Radmacher case, the English courts also awarded the less wealthy husband a far greater financial award for his “needs” as a father to the parties’ child than I believe he would have received in any other courts anywhere else in the world.

 

Preventing Child Visits to India

Jeremy D. Morley

Having represented numerous clients in international child custody matters concerning India, this author has been accepted on several occasions as an expert on international family law matters concerning India.

The author is aware of seven cases in which courts in the United States, Canada and England have refused to allow visits to India because India has no system for returning internationally abducted children.

In the first five of these cases this author testified as an expert witness that India was a safe haven for international child abduction and the courts in question relied to a significant extent on my testimony.

The cases are as follows:

a.                   Mahadevan v. Shankar, 2010 ONSC 5608, 2010 CarswellOnt 8537. The Superior Court in Ontario, Canada ruled that the father of a four-year-old child living in Ontario should not be permitted to take the child on a family visit to India.

b.                  Balakrishna v. Murali, FA104042105. July 18, 2012, The Superior Court in New Haven, Connecticut ruled that the mother of a young child living in Connecticut should not be permitted to take the child on a family visit to India.

c.                   Brahmbhatt v. Brahmbhatt, Case No. CL 2012-0000736. September 25, 2012. The Circuit Court of Fairfax County, Virginia, USA in ruled that the mother of a young child living in Virginia should not be permitted to take the child on a family visit to India. 

d.                  Shroff v. Shroff, Court File No. E111400. May 8, 2013. The Supreme Court of British Columbia, Canada determined that a child’s mother should not be permitted to take the parties’ child to India.

e.                   Paruchuri v. Vadlamudi, Case No. HF12651692 (February 27, 2014). The Superior Court of California, County of Alameda barred relocation or travel to India.

f.                   Katare v. Katare, 175 Wash.2d 23, 283 P.3d 546 (Wash. en banc, 2012). The Supreme Court of Washington, en banc, upheld a determination that the husband presented a serious risk of absconding to India with his children.

g.                  Re AB (A Child: temporary leave to remove from jurisdiction: expert evidence; [2014] EWHC 2758 (Fam). An English court ruled that while a child of Indian heritage should normally have the opportunity to spend time in India, the consequences of a refusal by the mother to return the child were such that the balance came down against granting the mother’s application

Child Custody in India: An Update

Jeremy D. Morley*

The Law Commission of India has published a Consultation Paper on Adopting a Shared Parentage System in India.

It has referenced two attempts that have been made to institutionalize shared parenting in India.

The first is a set of guidelines on ‘child access and child custody’ prepared by the Tata Institute of Social Sciences (Mumbai) for Family Court judges and Counsellors in Maharashtra understands joint custody in the following manner:

“child may reside alternately, one week with the custodial parent and one week with non-custodial parent, and that both custodial and non-custodial parent share joint responsibility for decisions involving child’ s long term care, welfare and development.”

The second example of joint custody is found in a recent judgment of the Karnataka High Court, which used the concept to resolve the custody battle over a twelve year old boy. In KM Vinaya v B Srinivas, a two judge bench of the Court ruled that both the parents are entitled to get custody “for the sustainable growth of the minor child”. The joint custody was effected in the following manner:

The minor child was directed to be with the father from 1 January to 30 June and with the mother from 1 July to 31 December of every year.

The parents were directed to share equally, the education and other expenditures of the child.

Each parent was given visitation rights on Saturdays and Sundays when the child is living with the other parent.

The child was to be allowed to use telephone or video conferencing with each parent while living with the other.

The Commission stated that the six monthly arrangement found in the second example is much more workable that the weekly arrangement and is likely to cause less instability and inconvenience to the child.

It also noted that the terms ‘joint’ or ‘shared’ do not mean giving physical custody to parents with mechanical equality, and “it is here that judicial pragmatism and creativity is going to play a huge role in developing this concept further.”

The Commission has solicited suggestions and comments on the issue.

It is also noteworthy that the Supreme Court of India in July harshly criticized the Madras High Court in G. Renukadevi v. Superintendent of Police for ordering that a four-year old child should stay with her mother for four days each week and with her father for three days each week.

The Chief Justice stated that,

“This order is something which shocks the conscience of this court. We are sorry that the High Court has treated the child as a chattel, which is impermissible and unacceptable. There is no justification for the High Court to pass such an order. This is not the way a girl child should have been treated. The court has played the child like a shuttlecock between the father and the mother.”

______________

*The Law Office of Jeremy Morley handles many international family law cases that concern India or Non-Resident Indians, acting with Indian or other local counsel whenever appropriate or necessary. Jeremy Morley has served as an expert witness on Indian family law and international child abduction to India.

Book Review: The Hague Abduction Convention by Jeremy D. Morley

2-FEB Colo. Law. 60

Colorado Lawyer
February, 2013
Department Reviews of Legal Resources 
Book Review

*60 THE HAGUE ABDUCTION CONVENTION: PRACTICAL ISSUES AND PROCEDURES FOR FAMILY LAWYERS BY JEREMY D. MORLEY 404 PP.; $149 ABA PUBLISHING, 2012 321 N. CLARK ST., CHICAGO, IL 60610-4714 (800) 285-2221; WWW.ABABOOKS.ORG


Review of Morley's The Hague Abduction Convention

Here is a review of my book on The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers.

Review by: Stephen A. Braunlich, The Colorado Lawyer

A family law attorney--and even a district judge--may go his or her entire career having never dealt with the issue of international child abduction. Should the issue ever arise, there would be no better book to have on a law library shelf than Jeremy Morley's The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. Morley, an international family law attorney working in New York, has applied his experience with the Hague Convention on the Civil Aspects of International Child Abduction (Convention) to write a trenchant and valuable guide useful to advocates and adjudicators.

The Convention deals with a narrow question of law: when must a child who was abducted from a country in which a person other than the abductor had a right of custody be returned to that country? This is a narrow question, and it is one that could have incredible implications. For example, many child abductions frequently arise from mothers fleeing domestic violence. In other cases, custodial parents in international relationships find the relationship does not work and one parent then tries to find a way home with his or her child or children. The children caught in these situations may be subjected to psychological and even physical harm. Therefore, any attorney dealing with an international child abduction will want to make sure he or she has a firm grasp of the applicable law. Morley gives them that grasp.

The book's structure is sensible and utilitarian. It opens with the Conventions history, policy rationales, and processes (at a very high level of generality). Morley explains the requirements a petitioner must meet to make a claim under the Convention: that the petitioner has custody rights and that the child was taken from a country of habitual residence. Having explained the basis for petitions under the Convention, Morley next turns to common shields to defend against petitions. The book's substantive sections close by considering situations in which a habitual residence is not a signatory to the Convention or mere international travel may turn into international child abduction. Several appendixes containing the Convention, enabling legislation, and the official commentary follow the substantive sections.

 

The strongest selling point of the book is the author's ability to guide readers through American and international case law for the benefit of both petitioners and respondents. For any of the issues in which there is a divergence of law, the reader finds the most frequently cited cases in favor of and opposing each of the viewpoints. Where the law is clear but fact-driven, Morley provides citations to cases that draw out key analogous facts for the advocate representing the petitioner or respondent in an abduction case. In doing so, he eases the path forward for attorneys unfamiliar with this area of law.

The book's target audience is attorneys litigating international child abduction cases; however, it also is a worthwhile read for anyone advising immigrants, prospective expatriates, and service members. For example, a client in these groups with children may have orders to make a permanent change of station overseas or may decide to move home. Proactive attorneys may preempt Convention litigation by ensuring that parenting plans for these clients include consent to bring a child overseas or, in the alternative, expressly withholding that consent. At the very least, this will build a record for later petitions under the Convention.

If there is one criticism that can be lodged against the publication it is that the accompanying CD adds little if any value, and simply may drive up the retail cost of the book. The CD merely provides electronic access to the seven appendixes in PDF format. The information otherwise can be found online through a simple electronic search or it should be familiar to a family law practitioner (as in the case of the Uniform Child Custody Jurisdiction Act).

 

Morley has provided an excellent resource that is especially beneficial for family law attorneys. It will be a tool they turn to either to find guidance for that rare international child abduction case or to find guidance for counseling prevention of an abduction.

Competing Divorce Jurisdictions: England versus Malaysia

Jeremy Morley

In a high profile international divorce case a Malaysian court has ruled that it has divorce jurisdiction over the parties even though an English court ruled recently that the English courts have divorce jurisdiction.

The wife had asserted – successfully in England – that she her home is in England, but the court in Malaysia ruled that the “common law principle that the wife’s domicile is dependent on her husband continues to apply in Malaysia.”

The English press took pleasure in noting that, in order to prove that she lived primarily in the UK, she had cited as proof the collection of 1,000 pairs of shoes she kept at the couple's "luxurious" £30million Hertfordshire home.

In sharp contrast the Malaysian court focused on the fact that the wealthy husband had always lived in Malaysia, on the (archaic) common law domicile rule and on the fact that the wife was in England only on a renewable six-month visitor's visa.

The choice of court will likely make a massive difference in the financial outcome of the case.

See more at: http://www.themalaysianinsider.com/malaysia/article/judge-rules-in-favour-of-tycoon-malaysian-court-can-hear-divorce-trial#sthash.KolWIsW1.dpuf

Mature Child’s Objections in Hague Cases

Jeremy D. Morley

The mature child’s objection exception to the Hague Abduction Convention employs very loose language that provides a trial court with great discretion.

In a hotly-contested case that I won in the U. S. District Court for the Eastern District of New York on Friday the trial judge found that a child who had just turned twelve was of sufficient age and maturity for his views to be considered and then ruled that his objections to being returned to Greece were objectively valid reasons.

In sharp contrast, a New Jersey federal judge ruled last month that the exception would not apply to two children, aged 15 and 12, both of whom stated that they would prefer to remain in the United States. De La Vera v. Holguin, 2014 WL 4979854 (D.N.J. 2014).

The difference was that the in the New York case the child was found to be an “unusually mature child” while in the New Jersey case only one child provided any specific reasons for her preference o remain in the United States.

Moreover, in the New York case we proffered expert testimony from a psychologist with unusually solid credentials in child development to refute claims that the child’s views were unduly influenced by his mother, whereas apparently no expert was called in the New Jersey case.

Finally the New Jersey court was greatly concerned about the fact that, by the time of trial, the children had already been in the United States for almost two years, stating that, “It is understandable and predictable that they have a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this is, at least in significant part, a direct result of their wrongful retention here by Respondent.” In contrast, in my New York case we adduced evidence that the child had expressed his wishes to remain in the United States as soon as he arrived here.

International Prenuptial Agreements: Necessary But Dangerous

Lawyers representing international clients who plan to marry and who want the protection of a prenuptial agreement should always consider the international ramifications of any proposed agreement. While conventional domestic prenuptial agreements raise grave malpractice concerns for family lawyers, the concerns become a hazardous minefield when the issues are multi-jurisdictional.

In many ways the world is rapidly shrinking and “globalizing”. “The World is Flat” is not only the catchy title of a bestselling book, but it also highlights the fact that international borders matter far less to most aspects of life than was the case a couple of decades ago. In sharp contrast, however, divorce laws remain local and parochial. Not only do divorce requirements and procedures vary from country to country, but so do the substantive laws concerning the division of assets and spousal and child support. Moreover, the laws about prenuptial agreements and marriage contracts vary considerably around the world and – just as important – the attitudes of courts to such contracts diverge considerably, significantly and in many different ways from country to country. Outside of the European Union there is generally no international law that governs the application of local law to international personal relationships.

Certainly it would be foolish to assume that a "prenup" that is currently valid in the place of the marriage or the place of current residency will be equally valid in other places which might have divorce jurisdiction in the future. 

International People

International issues concerning prenuptial agreements are obviously of critical importance for people of different countries of origin or for people from a country other than the place where they currently reside. But there are far more clients who may require international support concerning prenuptial agreement matters. Many clients have significant contacts with numerous countries or believe that they may in the future. Take the example of an international symphony conductor who may have ongoing appointments with many orchestras and festivals around the world, teaching positions with universities and conservatories in other parts of the world, and personal connections and assets in yet more parts of the world. What if his fiancée is an international business consultant? Or an international movie star? In such circumstances, where does the lawyer start? And where does the process end?

We recently represented an American business executive living in country A in Europe who was planning to marry a woman in the same city who was from country B. We knew that residency in country A created red flags as to the future enforceability of the proposed prenuptial agreement there. We elicited the fact that the parties might temporarily relocate to States C, D or E in the United States or to countries F or G in Europe.  We further ascertained that they could potentially move to any of a host of countries in the future but that countries H, I and J were more likely than the others. Accordingly, we drafted a prenuptial agreement and certain other documents in close collaboration with attorneys in jurisdictions A, B, C, D, E, F, G, H, I and J.

While such precautions are time-consuming and expensive, it would often be “penny wise and pound foolish” (as the old British saying goes) to skimp on the prenup and leave it all to courts to resolve if and when things go wrong.

The need for extreme care and self-preservation in such circumstances hardly needs emphasizing.

Potential Jurisdictions

Lawyers representing international clients are now more frequently recognizing that a prenuptial agreement must often be drafted with a view to its potential enforceability in an array of potential jurisdictions. These might include any of the following:

·         The state of current residence of the husband.

·         The state of current residence of the wife.

·         The state of domicile of either of them.

·         The state of the nationality of each of them.

·         The states to which they might relocate together in the future.

·         The states to which just one of them might relocate.

Selection of the Governing Law

A critical element of any international prenuptial agreement is the choice of the jurisdiction under whose law the agreement will be drafted. Obviously lawyers should not be wedded to their own jurisdiction as the “home” of the agreement. It must also be recognized that silence as to the choice of law is in many respects equivalent to the express selection of that jurisdiction.

The decision as to the best choice of law provision cannot be made without being adequately informed as to the applicable laws and practices of the various competing jurisdictions and as to the potential effect of the foreign law in any of the potential jurisdictions. The decision should also be made upon the advice of counsel who has substantial experience in such matters, who is independent in thinking, and who has consulted or will consult with appropriate local counsel in other relevant jurisdictions. It is likewise important to be aware that choice of law clauses may or may not be valid in other jurisdictions.

A choice of law clause should usually be drafted broadly. In one case a court in Oregon applied the law chosen by the prenuptial agreement -- California law -- only as to the construction of the agreement, but did not apply California property law because the choice of law clause was limited to construction issues. In re Marriage of Proctor, 203 Or. App. 499, 125 P.3d 801 (2005), opinion adhered to as modified on reconsideration, 204 Or. App. 250, 129 P.3d 186 (2006). Choice of law clauses should provide for both the application of both substantive and procedural law of the foreign jurisdiction to be effective.

Basic Principles

The following are some basic principles that the author has developed from handling many such agreements throughout the world over a number of years:

1. This is a very highly specialized area. There is much more risk for the family law practitioner who agrees to handle an international agreement than is the case with a conventional prenuptial agreement. These matters are tricky and they require great care. Do not handle international prenuptial agreements unless you have experience or are collaborating with an international family lawyer who handles international prenuptial agreements regularly.

2. Ensure that only one lawyer is in charge of the entire process, is the chief coordinator among the various lawyers in different jurisdictions that work on the prenuptial project and is the primary (or sometimes the sole) liaison with the client. If one lawyer is not clearly in charge there may well be great confusion, lawyers will be tempted to jostle for a larger role than might be appropriate, the client will receive conflicting advice and important issues might never be addressed.

3. Do not take on the process of drafting an international prenuptial agreement unless you are prepared to work with foreign counsel, to understand foreign law, to become familiar with different legal concepts that may apply to your client's circumstances and to work in an environment in which there are no clear-cut rules or procedures in which you may often feel compelled to consult your malpractice policy.

4. Make it clear to the client that you are admitted to practice only in Jurisdiction A (or perhaps A and B); that while you may have a little familiarity with Jurisdiction C, you are not admitted to practice there; that anything that you might say about the law of that jurisdiction is strictly subject to the client's confirmation with local counsel; that you have no familiarity with the laws of Jurisdictions D, E, and F; and that you will endeavor to find out what you can about the laws in those jurisdictions but you will need to rely on local counsel and that it is local counsel's advice upon whom the client will ultimately be relying. Back this up with a letter to the client and notes to your file.

5. Obtain clear authority from the client to engage the services of local family lawyers in other jurisdictions for the purposes of advising as to the laws and procedures of their own jurisdictions.

6. Be clear on client confidentiality when you hire a foreign lawyer. The rules vary considerably.

7. Obtain funding to cover all of the anticipated legal charges. It is critical to know that you may be responsible for the legal fees of lawyers you ask for help in foreign jurisdictions. See the International Bar Association's International Code of Ethics, Rule 19, which provides, in part, that, “Lawyers who engage a foreign colleague to advise on a case or to cooperate in handling it, are responsible for the payment of the latter's charges except express agreement to the contrary.” Find out what fees each lawyer charges and how the lawyer expects to be paid. In some countries, fees are fixed by local law. You should establish a workable billing schedule. Foreign lawyers may not be accustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance. Others may demand payment periodically and refuse to continue until they are paid. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant.

8. When reviewing foreign law, be careful to understand the terms that the foreign local lawyers use. For example, foreign terms might be translated into English as “marital property”, “custody”,  “ownership” and “commingled” but the terms might well have completely or even subtly different meanings in the foreign jurisdiction which could seriously impact the way that a contract is interpreted. Become familiar not only with the law as it is written in the foreign jurisdiction but the law as it is actually applied and as it might apply to your particular client if the prenuptial agreement were brought before the courts in that jurisdiction. In this regard, it is critical to determine how much discretion is afforded to a judge in the foreign jurisdiction to rewrite specific provisions or to take any action other than strictly applying the law concerning prenuptial agreements.

9. Check out the conflict of laws issues. Be alert to the fact that a contract executed in one jurisdiction might in any particular jurisdiction be governed by another jurisdiction's law. You may even need to consider renvoi rules (perhaps for the first time since cramming in law school for a Conflicts exam) insofar as another court that applies its own law to a prenuptial agreement might include its laws on the conflict of laws, which might require the court to apply the laws of another jurisdiction.

10. Inform the client that you do not know where the client and his or her spouse might reside in the future, where their children, if any, might be located and where either or both of them may in the future have assets or do business. All of these factors may have an enormously significant bearing on the enforceability of their prenuptial agreement.

11. Some jurisdictions still do not enforce prenuptial agreements. Other jurisdictions have rules that make it easy for a court to invalidate a prenuptial agreement. In some such situations, it is also good practice to consider whether the parties should sign so-called “mirror agreements” that contain essentially the same terms as the primary agreement but are executed in accordance with the local law and are to come into effect only if the primary agreement is not recognized by a local court. It is sometimes good practice to have the parties execute a simple regime selection document at the time of their marriage in a civil law country such as France or Italy while at the same time having a far more complete agreement entered into in a common law jurisdiction such as New York or California that cross-references the civil law selection.  If there is to be more than one agreement it is important to decide how to prioritize between them and to avoid unnecessary confusion by having multiple agreements that cover the same topic.

12. It may well be prudent to insist that there be compliance with both the procedural and substantive requirements of the toughest potential jurisdiction, or even that each and every hurdle to overcome for enforceability in any of a list of jurisdictions should be fully complied with.  This may mean that counsel should ensure compliance with all of the execution requirements of every potential jurisdiction.

13. One must be alert to the fact that the way that the courts of a particular country apply foreign law may vary considerably. Thus, in a totally different context, the author worked on a custody case in Japan in which a Japanese court ruled that the provisions of California law requiring that both parents be permitted to be substantially involved in the lives of their children meant that a (good) foreign father could visit his child once a month for a few hours under supervision!

14. One must also be alert to varying rules in other jurisdictions as to validity of execution; requirements for independent representation; disclosure of assets; fairness; and unconscionability. One example is that of disclosure. It may suffice in one jurisdiction to attach an appendix that lists in summary form a party's assets and liabilities. However, in California it is the practice for the attorneys for each party to deliver a “disclosure packet” to the other party containing the last three years' personal tax returns as a well as a schedule of assets and liabilities and if the party owns a business to also deliver three years of business tax returns and a profit and loss statement.

15. Make it clear to the client that you are not an oracle and that you cannot predict the future. Therefore you do not know what the law will be in any particular jurisdiction, even including your own, in the future and how it might be applied by the courts in any such jurisdiction. Consequently, you are unable to guarantee that the prenuptial agreement will be enforceable at the time in the future when a court in your own jurisdiction or in a foreign jurisdiction might look at it.

Conclusion

International prenuptial agreements are traps for the unwary or unknowing. They are extremely important to clients but must be handled with great care by family law counsel.