Friday, February 28, 2014

English Prenuptial Plan Ill-Considered

Jeremy D. Morley
I believe that the U.K. Law Commission’s hot-off-the-press proposal about prenuptial agreements in England and Wales is somewhat ill-considered.
The reason that parties who marry want prenuptial agreements is to create security as to the financial terms of their future relationship and to avoid the potential expense, intrusiveness and uncertainty of litigation concerning the financial aspects of their potential divorce. That is particularly so in England, whose divorce courts are renowned for applying the loose term of “fairness” in unpredictable and expansive ways.
Unfortunately, while the Law Commission has proposed that prenuptial agreements will be enforceable in England and Wales, it has also proposed an exception insofar as such agreements do not satisfy the “financial needs” of the parties. The 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 proposes 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 result may well be as follows:
a. Prenuptial agreements will be far more expensive than would otherwise be the case because lawyers will need to analyze the parties’ current and prospective circumstances in order to be able to provide any kind of useful advice, and will need to draft contracts with loose terms and enormous disclaimers in order to handle such uncertainty.
b. Prenuptial agreements will be of limited value. Current English law provides that the financial needs of the parties are the basis upon which the English courts decide the financial side of divorce cases in England unless the parties have more financial resources than is required to cover all of their “needs.”  Since prenuptial agreements cannot be less generous than the courts would apply in a needs case there may be little or no point in going through the trouble and expense of entering into any such contract.
c. Prenuptial agreements will probably have to include provisions that are even more generous than current “needs” might suggest. It is impossible to guess the financial circumstances that parties will be in at the time of a potential divorce years down the line. Therefore it will be impossible to come up with specific financial terms that will satisfy a test which is based on future circumstances. Alternatively, prenuptial agreements will require broadly written exceptions that will be entirely unpredictable as to their potential application.
d. The role of the courts in the financial aspect of divorces will continue to be vast, intrusive and expensive, since unhappy litigants will always claim that their needs have not been met.
e. There will continue to be a substantial incentive for forum shopping, since courts in most of the rest of the world may well enforce prenuptial agreements far more liberally, reliably and usefully than the courts in English and Wales.
The Law Commission’s fundamental mistake stems from the fact that it does not trust the parties to make sensible agreements. It believes that the judiciary should continue to act in a quasi-parental capacity to oversee the decisions made by adults who purposefully, deliberately and freely enter into contracts that will define the financial terms of their relationship.
Quite appropriately the Commission’s proposal contains substantial provisions to ensure that any prenuptial agreement must be entered into with the parties’ eyes wide open. Thus, it proposes that there should be a gap of 28 days between the execution of the agreement and the date of the marriage; that disclosure of “material circumstances” should be required (although this term is hardly defined in the proposal); and that the parties should have legal advice (presumably independent advice) before signing the contract. However, the Commission then proceeds to carve out the mammoth exception of “financial needs” in order to make sure that consenting adults do not sign silly agreements.
It is important to point out that the exception would not be limited, as many other jurisdictions provide, to periodic spousal support.  It would also extend to the assets of the parties, and unlike most other jurisdictions that will include pre-marital as well as post-marital assets.
I am not usually a flag-waver for the jurisdiction in which I practice but, in the case of prenuptial agreements, I think that New York has got it about right. Our statute provides, in essence, that properly-executed prenuptial agreements are binding absent “unconscionability,” which requires proof of inequality that is “so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense.” A lower standard is reserved for terms that limit spousal maintenance, which will be upheld if “fair and reasonable at the time of the making of the agreement and … not unconscionable at the time of the [divorce].” While mere fairness is required, it is measured at the time the contract is made so that the circumstances then in existence can be sensibly evaluated at that time. In addition, unlike England, spousal support is always periodic in New York and is invariably time limited at the outset. There is a clear and very strong public policy in New York favoring the right of parties to set their own terms when they marry but there will be greater scrutiny if there has not been adequate disclosure of financial matters before marriage or independent legal representation or a reasonable gap between the presentation of a prenuptial agreement, its execution and the parties’ marriage. The result is that New York prenuptial agreements are relatively easy to draft, relatively inexpensive, and extremely useful since they are invariably upheld if properly drafted. We are able to advise clients sensibly and predictably.
In sharp contrast, the U.K. Law Commission proposes to create a prenuptial regime that retains an excessively paternalistic role for the English courts that is likely to lead to excessive litigation, complicated agreements and unpredictable results.

Friday, February 21, 2014

Cayman Islands: Family court rulings made public

Family court rulings made public
Local courts buck long trend of secrecy
20 February, 2014

Court cases involving child custody, adoption and divorces heard in the Cayman Islands Grand Court, Family Division are – in certain instances – now being made public once a judgment is rendered.

To protect the identities of the parties involved, the court’s judgment contains only initials in relation to the individuals being discussed, not their full names. Also, Courts Administrator Kevin McCormac said it remains in the discretion of the presiding judge whether the ruling on a particular case is put into the public domain.

“In the majority of family proceedings, the decisions are purely about the private affairs of the parties involved,” Mr. McCormac said. “Occasionally, there will be a judgment that is of wider interest.”
So far, the courts have released five such cases believed to have some broader public interest from the Grand Court’s Family Court Division.

The latest release involves a Jan. 15, 2014 judgment on a Cayman Islands residency case where the right of two children to remain in the islands was being reviewed, following the death of their father – a permanent resident of independent means. The residency status of the children was granted as dependents of their permanent resident father, who died late last year.

“There is a live issue as to whether their right to residency had ceased upon [their father’s] passing and uncertainty as to their right to continue residing in the Cayman Islands,” the judgment written by Grand Court Justice Richard Williams indicated.

In addition to deciding whether the children could continue to reside in the Cayman Islands, there was an ongoing issue as to legal guardianship and who might be responsible for their care if they could not remain here.

In the end, the judge ruled that the children should be made temporary wards of the court and placed in the interim care of relatives who reside in Florida. However, that decision was based largely on what the court considered best for the children at the time, rather than a decision based on their immigration status in the Cayman Islands.

Another case from July 2013 contained an important declaration from Cayman Islands Chief Justice Anthony Smellie with regard to child custody in divorce matters, the specific case involving the custody of a five-year-old girl.

“There is no presumption that the child must reside with one parent or the other,” the chief justice wrote in his decision on the case. “Her tender age and gender may be important considerations strongly supporting a more suitable arrangement for residence with her mother, but they are not conclusive.

“Ultimately, what will generally be in her best interests will be determinative of the arrangements to be made.”
Such matters, Mr. McCormac said, will end up setting guidelines for similar matters that judges use in their decisions on future cases and may be of interest to the general public. However, he said protecting the identity of participants in Cayman Islands cases will be more difficult than in larger jurisdictions.
“In a small country, like ours, that’s more of a challenge,” Mr. McCormac admits.

It is, at least partly, for that reason that the Cayman Islands court system did not follow what had already been done with the family courts of England and Wales. Mr. McCormac said the courts there typically release almost all family court judgments to the public.

In the local scenario, only Grand Court case judgments would be released, not those that come before the Summary Court. In addition, the judges themselves will maintain sole discretion over which rulings are made public, Mr. McCormac said.

Wednesday, February 19, 2014

Bond Unreliable to Deter Potential International Child Abduction

by Jeremy D. Morley
A Florida appeal court has sensibly overturned a lower court’s decision that had allowed the visit of two children to Jamaica to see their father conditioned primarily on his filing a $50,000 bond. 
The father had been deported to Jamaica upon convictions for battery on the mother and had repeatedly threatened to kidnap the children. 
The appeal court stated that the trial court’s concern about a potential abduction was well founded, but ruled that “its decision to address that concern through a monetary bond is not. Given the fact that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond…. Nor would the evidence support a finding that the bond, standing alone, could deter a potential kidnapping given the father's demonstrated disregard for the law and repeated threats to take the children from the mother.” Matura v. Griffith, --- So.3d ----, 2014 WL 338750 (Fla.App. 5 Dist.,2014).
We have repeatedly warned that, since children are priceless, bonds are never “painful” enough to overcome the decision that parental abductors often make that – at any and all cost -- their child should be away from the other parent and with their family in their country of origin. While bonds may provide a litigation war chest they will not even provide much value in that regard unless the foreign legal system is likely to take action, as the Florida court has now usefully recognized.

Friday, February 14, 2014

Turkish Family Law

I had the great pleasure and privilege recently of addressing the First Turkish-American Lawyers Conference at New York Law School on the topic of  “Turkey and International Family Law.”
My particular focus was on Turkey and international child custody matters, especially:
-Relocation of children from Turkey to the United States.
-The recovery of children abducted from Turkey to the United States, focusing on the Hague Convention and the Uniform Child Custody Jurisdiction & Enforcement Act.
-Preventing the abduction of Children to Turkey.
-Securing permission for children to visit Turkey.
-Recovery of children abducted from the United States to Turkey.
-The use of expert witness on Turkey’s family law in such cases.

Wednesday, February 12, 2014

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

2-FEB Colo. Law. 60
Colorado Lawyer
February, 2013

Reviews of Legal Resources
Book Review


Review of Morley on 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.

Model Rabbinic Leadership

By Rachel Levmoe


Jewish communities the world over can, and should, stamp out the agunah problem.
A striking demonstration of true rabbinic leadership was unveiled this week, in what may be the most unlikely of countries. One would expect creative rabbinic rulings for the good of an entire community to emanate from the great centers of Jewish study such as can be found in Jerusalem or Lakewood. However, reality disabuses us of that notion.

The larger the Orthodox community, the more conservative its rabbis.

Not so Rabbi Ben-Tzion Spitz, chief rabbi of Uruguay.

As a graduate of Yeshiva University with a master's degree in mechanical engineering from Columbia University, he obviously knows to discern cause and effect. Less than a year in office, Rabbi Spitz has been confronted with a growing number of agunot - women whose husbands refuse to arrange for a Jewish divorce by granting them a get.

Deeply disturbed by the plight of the women chained in Jewish marriage to a man wielding the ultimate weapon in his power - get-refusal - he was receptive to an initiative launched by Sara Winkowski - a director of the "Kehila" (Jewish Community of Uruguay) - for the resolution of the agunah problem.

Chief Rabbi Spitz not only authorized the use of a prenuptial agreement designed to prevent get-refusal, he mandated its use. A result of a process involving the community through a legal committee, the prenuptial agreement is supported by the board of directors of the Kehila. The document follows both Jewish and Uruguayan law.

There are an estimated 10,000 Jews living in Uruguay.

Many, who are not necessarily observant, prefer to have an Orthodox wedding.

However, the agunah problem crops up in marriages performed specifically in accordance with Orthodox Jewish law. Without a get given to the wife under the auspices of an Orthodox rabbinical court, a civilly divorced woman is not free to remarry under Jewish law.

Interestingly, although the community is a Zionist one, enjoying close relations with the Israeli rabbinate, the local rabbinate did not choose to turn for assistance to Israel. Viewing this as a community problem with the need for a community-based solution, Chief Rabbi Spitz provided one.

Recognizing his responsibility for the welfare of his female constituents, Rabbi Spitz said: "By instituting the wholesale signing of the prenuptial agreement, and without discriminating between couples who may or may not choose such insurance, we have presented a solution to this long-standing problem for all families that will marry under the auspices of the Kehila."

In order to provide protection to all women getting married under the Orthodox wedding canopy, the Kehila will not conduct marriages of couples that will not sign the Rabbinic Prenuptial Agreement. The Kehila is actually the keeper of a registry of Jewish weddings in the community dating back to the year 1950, which is the basis for issuing certificates of Judaism.

This is one of the few ways for Jews from Uruguay to be recognized as Jews by the State of Israel.

Pressing the point even further, to ensure that every couple marrying in an Orthodox manner does indeed sign the prenuptial agreement, the Kehila will no longer enter into the registry or issue certificates of Judaism to families that do not participate in the signing of the prenuptial agreement. This model of rabbinic leadership deserves to be positively lauded.

In contemporary society, leading rabbis tend to stay away from preventative solutions.

It takes the small Jewish community of Uruguay, together with its local communal institution - the Kehila - and its chief rabbi, Ben-Tzion Spitz, to teach us all a lesson. Jewish communities the world over can, and should, stamp out the agunah problem.