Tuesday, April 29, 2014

UK: Couples should be able to divorce without going to court, says top judge

Senior family judge also urges ministers to give unmarried couples living together the same rights as married couples

By Owen Bowcott, legal affairs correspondent
The Guardian, Tuesday 29 April 2014 12.43 EDT

Couples agreeing to divorce by consent should be able to arrange their own separations with a trip to the registrar rather than having to go to court, the most senior family judge in England and Wales says.

Calling for radical streamlining of matrimonial law, Sir James Munby, president of the high court's family division, also urged ministers to give unmarried couples living together the same rights as married couples, warning that some women are being "thrown on the scrapheap" without any financial support if their relationship ends.

In a speech on Tuesday Munby said divorce proceedings should be split from the process of dividing up assets, allowing for less painful and quicker separations. "Has the time not come to legislate to remove all concepts of fault as a basis for divorce and to leave irretrievable breakdown as the sole ground?" he asked.
Uncontested divorces, he suggested, could do away with "judicial supervision" entirely, with couples instead simply recording their separation with a "registrar of births, deaths, marriage and divorces", an idea likely to cause some controversy.

"May the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?" he asked.

On the rights of unmarried couples, Munby said: "If a marriage is terminated by divorce, the court has power to redistribute the matrimonial assets between the spouses. There is no such relief for cohabitants when their relationship breaks down, however long their relationship has lasted.

"This is an injustice which has been recognised as long as I have been in the law. Reform is desperately needed. The Law Commission has recommended reform. Thus far governments have failed to act.
"Reform is inevitable. It is inconceivable that society will not right this injustice in due course. How many more women are to be condemned to injustice in the meantime?"

Asked whether removing all traces of blame from divorce would mark a significant change in marriage, Munby said: "In practical terms it will make very little difference. For 30 years we have had divorce by consent. In reality many divorces go through by consent in the sense that the parties agree the grounds of unreasonable behaviour before the petition is issued."

Removing blame from divorce would introduce "intellectual honesty" to the system and get rid of the unnecessary complexity required to prove that a husband or wife was at fault, Munby added.

"I don't see how this in any way will undermine marriage or the sanctity of marriage," he added.
Since 22 April all separating couples have been required to attempt to resolve the terms of their separation through mediation before they embark on costly court hearings. Munby admitted that reluctance to enter mediation and the increase in unrepresented individuals were putting pressure on the courts system.
"[We have] not yet sold to the general public [the benefits of] mediation. That's why we are in the almost crisis situation we are in at the moment."

Judges will have to become more active in directing court proceedings where couples no longer have lawyers to support them in court.

"We will need to make our judicial processes more inquisitorial," he said. "We will need to think anew about the appropriate roles in the courtroom of McKenzie friends and other lay advisers."

Judges can no longer simply be "umpires" in an adversarial dispute, Munby explained. The judges should set the agenda in court, he suggested, although he did not envisage continental procedures where an inquisitorial judge entirely dominates the process.

Munby's comments on marriage were immediately criticised by one legal commentator. Marilyn Stowe, a partner at Stowe Family Law, said: "Divorce is the dissolution of a legally binding contract of marriage. It forms the basis from which finances and child-related issues are legally regulated following the breakdown of a marriage. As such I believe it should remain a legal process. If it is removed from judicial supervision it could also be open to abuse."

A Ministry of Justice spokesperson said: "We are committed to working with the judiciary to improve the family justice system so divorcing couples can achieve the best possible outcomes for themselves and their families, using the courts only where necessary.

"The government has no current plans to introduce 'no-fault divorces' or amend the laws around cohabitation."


Thursday, April 17, 2014

Do We Have Enough Sensible Malays? Zaid Says Unable To Answer A Definite ‘Yes’

KUALA LUMPUR: Datuk Zaid Ibrahim lamented today the lack of empathy among fellow Malay-Muslims towards non-Muslims caught in inter-religious child custody tussles.
The former de facto law minister pleaded with the Malay-Muslim majority to put themselves in a non-Muslim’s shoes and to imagine if hypothetically, the law allowed a non-Muslim parent to convert a Muslim child to Hinduism or Christianity without the consent of the Muslim spouse.
“Sensible Malays are those who will not do to others what they do not want done to them,” Zaid wrote in a blog post today titled “What sensible Malays should do”.
“Today, Malays do not seem outraged that a mother can’t have custody of her own son—even with a High Court order—just because she is Hindu.
“Instead, Malays seem to be supportive of the father who became a Muslim and took the son away illegally, telling everybody of course that it was to prevent his son from being converted to Hinduism,” he added.
Zaid questioned the mindset of many Malays who have taken the side of Muslim parents in inter-religious marital disputes.

“Do we have enough sensible Malays in the country? I’m afraid it’s a difficult question and, as a Malay, I feel embarrassed that I am unable to say a definite yes.”
Last week, a Hindu mother, S. Deepa, won full custody of her two children ― a nine-year-old daughter and a six-year-old son — at the Seremban High Court.
But her estranged husband, a Muslim convert born N. Viran who now goes by Izwan Abdullah, had snatched the boy from the mother two days later, insisting he too had full custody as awarded by the Shariah Court, after he converted their children to Islam last year without his wife’s consent or knowledge.
The police have refused to act on Deepa’s abduction complaint against the child’s father, with Inspector-General of Police Tan Sri Khalid Abu Bakar citing the two conflicting court orders as the reason.
Zaid said today that a generation ago, Malays would not have condoned such a “travesty of justice”.
“Malays of the past would have had no difficulty accepting that changing the religion of a child requires the decision of both parents (or guardians). It’s just common sense.
Malays of the past would not have accepted the proposition that a single parent could unilaterally change the religion of a child against the wishes of the other parent. Those Malays had no difficulty following the law that enabled the child to decide what his or her religion was upon reaching the age of 18,” he added.
The former minister who had served in the Abdullah administration told The Malay Mail Online earlier today that the Federal Constitution was clear that the consent of both parents is required to convert their child’s religion.
He also called the government “weak” for not enforcing the country’s supreme law, pointing out that proposed amendments to the Law Reform (Marriage and Divorce) Act 1976 and the Islamic Family Law have yet to be tabled in Parliament since they were mooted five years ago.
According to Zaid, Putrajaya had proposed the amendments to ensure that a child keeps the religion they were born with until they turn 18, if both parents cannot agree on converting the child, and to ensure that maintenance and custody disputes are handled in the court in which the marriage was registered, even if one spouse embraces another religion later on.
“I am still Malay and I hope more Malays will not be cowards like our leaders. They must speak up for justice and the principle of fairness to all,” Zaid wrote on his blog.
-The Malay Mail
For more information on Malaysian Family Law, please see our page at:

Tuesday, April 15, 2014


Jeremy D. Morley

On March 21, 2014 Iraq acceded to the Hague Abduction Convention, with no reservations, declarations or notifications.
On April 14, 2014 the Ministry of Foreign Affairs of the Republic of Iraq issued the following announcement:
A celebration took place in the headquarters of the Peace Palace in The Hague for the countries that have recently joined the Hague Convention, including the Republic of Iraq on the Civil Aspects of International Child Abduction in the presence of a number of ambassadors and representatives of States in The Hague.

Mr. Joseph Damoaso Chairman of the Department of treaties in the Dutch Foreign Ministry presented the Iraqi Ambassador in The Hague, Dr. Saad Abdul Majid a document to support the Government of Iraq's accession to the Convention attached with the text of the Convention.

Mr. Damoaso thanked the Government of Iraq for its commitment to the agreements that guarantee the rights of the child and the family and is working to strengthen the foundations of the democratic system.

In turn, Ambassador Dr. Saad Abdul Majeed emphasized that Iraq's accession to this agreement reflects the image of the new Iraq, and its belief in the principles of justice and international peace.
Iraq’s accession has not yet been accepted by the U.S. Government. Accordingly, as of today’s date the Convention is not in force between the United States and Iraq, and child abductions from or to Iraq and from or to the United States are not yet covered by the Convention.

Friday, April 11, 2014

Court hands win, loss to Hackensack law firm, Hasbrouck Height's dad seeking girl's return from Spain


An appeals court has reversed a $424,000 award to the daughter of a Hasbrouck Heights man who sued a Hackensack law firm, claiming its release of her passport allowed the girl to be kidnapped to Spain by her mother in a bitter matrimonial split.
At the same time, the state Appellate Division panel affirmed a jury’s 2011 verdict awarding $700,000 in damages from the law firm for emotional distress to the father, Peter Innes, plus $292,332 in interest and attorneys fees.
“Innes’s testimony was sufficient to permit the jury to award him emotional distress damages proximately caused by defendants’ breach of their duty,” the Superior Court appeals court said in a 67-page opinion filed Monday. “The loss in this case was particularly personal in nature — the inability of a father to see his daughter for many years, and the likely prospect that he may never see her again,” it said.
The judges, however, said they were compelled to reach a different result with the award on behalf of his daughter, Victoria: “There was simply no testimony regarding her emotional distress, meaning the jury’s award was based upon speculation,” the opinion said.
“I am very happy the appellate court agreed that these lawyers had no right to surrender my daughter’s passport and that their actions were a violation of their professional rules of conduct,” Innes said Tuesday.
He added he was disappointed the judicial panel vacated the damages, interest and legal fees awarded to his daughter in the suit against the firm Lesnevich & Marzano-Lesnevich.
“Because she is concealed from me in Spain, I could not offer any proof of her emotional harm. However, I think it goes without saying that a 4-year-old child, who is taken from her father, is certain to have been emotionally harmed,” he said.
Walter A. Lesnevich, a partner in the Lesnevich & Marzano-Lesnevich firm, said the firm, which appealed the original awards, intends to press a bid to overturn the Innes award to the state’s highest court.
“This is just the interim decision,” he said of the appellate ruling. “We’re appealing to the Supreme Court to remove the rest of the award. So it’s got another year at least to go.”
Innes said he does not think that he will he will pursue a further appeal.
The May 2011 verdict stemmed from an acrimonious matrimonial dispute between Innes and Maria Jose Carrascosa, a native of Spain. The couple separated in 2004 after a five-year marriage. The two signed a parenting agreement in October 2004 to take care of their only daughter, who was 4 at the time. The agreement prohibited either party from taking the child on an international trip without the consent of the other parent. As part of that clause, Carrascosa’s attorney was obligated to hold Victoria’s American passport in trust.
After Carrascosa changed lawyers, Madeline Marzano-Lesnevich, a partner at the Hackensack firm, turned over the passport to her in December 2004. A month later, Victoria was on a plane to England with her grandfather and then on to Spain, where she remains.
A Superior Court judge in Hackensack, meanwhile, granted full custody of the child to Innes and ordered the mother to bring the child back to New Jersey. Carrascosa refused, arguing that the Spanish courts have jurisdiction over the case. The courts in Spain ruled that Victoria cannot leave the country until she is 18.
In 2006, Carrascosa, an attorney admitted to practice in the European Union, returned to New Jersey and was arrested for contempt of court. Bergen County prosecutors later charged her with criminal interference with child custody. She was convicted and is now in the eighth year of a 14-year prison sentence.
Innes, who runs a small graphics design and advertising company, said he has fought in state and federal courts and in Spanish courts to be reunited with his daughter. “I blame a lot of this on the Lesnevich lawyers, who the jury said, and the appellate court agreed, had absolutely no right to give up my daughter’s passport. That act of giving up the passport is what enabled my daughter to be abducted,” he said. “I’m hoping maybe this money allows me to hire another lawyer in Spain and fight for my daughter over there,” he said. He added that his daughter, who he hasn’t seen since she was 4½ , will turn 14 this month. “My daughter was abducted over nine years ago. It’s been a long strange trip through the legal system in two countries. But in the end, I know that everything I’ve done has been with my daughter’s best interest at heart, and I am certain that someday she will understand that.”

Wednesday, April 09, 2014

Important Indian Ruling on India’s Notorious Section 498A Law

Jeremy D. Morley

In an important ruling on India’s notorious “Section 498A law” (see www.international-divorce.com/Indias-Notorious-Section-498A.htm), the Bombay High Court has ruled that a wife who made unsubstantiated allegations in a criminal case that she initiated against her husband and family under Section 498A of India’s Penal Law has thereby committed acts of cruelty sufficient to provide a ground for the husband to divorce her [Mr. M v. Mrs. M, Family Court Appeal No. 71 of 2006, decided on 7th February, 2014].
Section 498A makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property.
The problems with the law were the result of a “perfect storm” that was entirely unanticipated when the law was introduced to protect woman in 1983. The elements of the storm included:

     - Extremely vague statutory language.

     - A separate law that prohibited the provision or acceptance of a dowry.

     - A custom that has been difficult to eradicate of a bride giving a dowry upon marriage.

     - A law that may only used by women against men.

     - A provision that extends criminality to any of the husband’s allegedly-participating relatives.

     - A police force that is notoriously corrupt.

     - A law that in the past allowed for the immediate arrest of the husband and members of his family by the police on the basis of a woman's complaint.

     - A provision that the offense was non-bailable.

     - A domestic relations procedure that is extremely cumbersome and in many ways unworkable.
The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce. In one famous case, the Supreme Court of India described such conduct as “legal terrorism.”
The wife had made two serious allegations against the husband and members of his family, which the alleged ill-treatment had resulted in her arthritis and had led to her father's death from shock.
In the new case, the Court ruled that the husband had established that the respondent could not substantiate the allegations of cruelty in the criminal trial and that, between 2001 and 2004, he and his family members were required to attend 56 court hearings before they were ultimately acquitted.
The Court stated that, considering the manner in which the criminal case proceeded, the respondent and his family members were subjected to humiliation, trauma and agony.
For this reason, the Court held that the conduct amounted to mental cruelty to the husband and therefore set aside a Family Court order that had denied a divorce to the husband from his wife.
However, while the ruling is sensible, it must be pointed out that it occurred in 2014 – 14 years after the wife’s misconduct was initiated. The wheels of justice turn slowly in India.

Tuesday, April 08, 2014

Morley’s Expert Opinions as to India’s Child Custody Laws and Sec. 498A of India’s Penal Code Upheld in California

A California court has upheld my expert evidence on the child custody laws of India to the effect that if a child is taken to and wrongfully retained in India it will generally not be possible to secure the child’s prompt return from India.  
The Court also found that any effort to seek the assistance of the Indian courts would be extremely slow and expensive, and would most likely be ultimately unsuccessful. Accordingly, the court denied the mother’s move-away application.
In refusing to permit the move-away, the court rejected the opinion of an Indian lawyer who sought to refute my opinions.
My opinions also concerned the impact on the child’s father of a case brought by the mother under the notorious Section 498A of India’s Penal Code. I opined that the initiation of a Section 498A case or even the threat of such a case creates a real and distinct danger for a non-resident Indian husband who is engaged in hostile divorce or custody proceedings in India with an alienated wife of Indian origin.