Thursday, May 22, 2014

Swiss Laws about Divorce

Jeremy D. Morley

Switzerland: Divorce Jurisdiction
The Swiss courts have divorce jurisdiction if the plaintiff is domiciled (which essentially means permanently resident) in Switzerland, or if the defendant is domiciled in Switzerland, or if the plaintiff is a Swiss national residing in Switzerland. Article 51, Swiss Statute on Private International Law.
In addition, the Swiss courts will have divorce jurisdiction if only one spouse is a Swiss national if “the action cannot be brought at the domicile of either spouse or cannot reasonably be required to be brought there.” (Article 60, Swiss Statute on Private International Law).
Switzerland: Law Applicable to Matrimonial Property and Divorce
Once a Swiss court has divorce jurisdiction it will also have jurisdiction to handle all matters concerning the effect of the marriage on the parties’ property and on the division of matrimonial property. (Article 51, Swiss Statute on Private International Law).
Switzerland authorizes the spouses to select the law that will govern their matrimonial property relations. (Article 52, Swiss Statute on Private International Law). Such choice may be made in writing or “result with certainty from the provisions of a marital property agreement.” (Article 53). A choice of law may be made or amended at any time. A choice of law made after the marriage celebration has retroactive effect as of the date of the marriage, unless otherwise agreed. The chosen law remains applicable as long as the spouses have not amended or revoked such choice. (Article 53, Swiss Statute on Private International Law).
If the spouses do not make a proper choice of law, their matrimonial property relations will be governed by the law of the country in which they are both domiciled or, in the absence of a shared current domicile of both spouses in the same country, by the law of the last country in which they were both domiciled at the same time. If they never shared a common domicile their common national law will apply and if they have no common nationality then Swiss law will apply. (Article 54, Swiss Statute on Private International Law).
If the spouses’ domicile is transferred from one state to another, the law of the new domicile applies and has retroactive effect as of the day of the marriage. Spouses may exclude retroactivity by so agreeing in writing. A change of domicile has no effect on the applicable law if the spouses have agreed in writing to continue the application of the former law or if they are bound by a marital property agreement. (Article 55, Swiss Statute on Private International Law)
Switzerland: Prenuptial and Post-Nuptial Agreements
Prenuptial and postnuptial agreements are binding under Swiss law provided they fulfill certain statutory requirements. They must be entered into by means of a “notarial deed.” (Art. 184, Swiss Civil Code). The notary has a duty to ascertain that the contract is based on the free will of the parties and is in accordance with the law. The notary also has to explain to the parties their current legal status and the changes that the marital contract will provide, ensure that the parties understand the meaning of the contract and ensure that the contractual provisions are in accordance with the wishes of the parties. However, if the notary does not fulfill such obligations, the contract remains valid, although the notary may be sued for damages. The registration of marital agreements was abolished in 1988.

Prenuptial agreements enter into force upon the solemnization of the marriage (Art. 182,Swiss Civil Code). Spouses may enter into a marital agreement or modify or annul a prenuptial agreement at any time during their marriage.

Full disclosure of the spouses’ assets and debts is not necessary. However, the general rules of contract law apply, so that a marriage contract might be invalidated by reason of fundamental mistake, fraudulent misrepresentation or duress (Arts 23 et seq. and 28 et seq. Swiss Code of Obligations), or the general rule prohibiting an abuse of a right (Art. 2 para. 2 Swiss Civil Code) may apply.

A marital contract containing provisions regarding the matrimonial property regime, and that does not provide for the other effects of a divorce, qualifies as a marital contract, and is not subject to judicial review for fairness. On the other hand, an agreement intending to lead to a divorce is dealt with differently from a marriage contract and is subject to judicial control (Art. 140, Swiss Civil Code).

The spouses may only choose, change or modify their property regime within the boundaries of the Swiss law, Art. 182 (2), Swiss Civil Code. They may choose between the statutory property regimes. Whichever regime they choose may only be modified in specifically authorized ways and to a specifically authorized extent. The spouses cannot create their own regime. However, they may regulate certain issues regarding property law by a simple written contract in writing, but such an agreement does not qualify as a marriage contract.

Thus, under the property regime of participation in acquisitions, the spouses may deviate from the rules on the participation in the increased value of an asset in the case where one spouse has invested in the other’s assets, Art. 206 (3), Swiss Civil Code.

Under participation in acquisitions, the spouses may designate business assets that would otherwise belong to the marital property as separate property, Art. 199 para. 1 Swiss Civil Code; they may also assign revenue generated from separate property to the separate property (Art. 199 (2) Swiss Civil Code).

Under community of property, the spouses may modify the assets that belong to the common property (Art. 223 Swiss Civil Code).
Switzerland: Division of Assets on Divorce
If the parties have selected a marital regime in a manner that is effective under Swiss law, that regime will govern the parties’ asset relationship.
If the parties have selected a foreign law to govern their relationship in a manner that is effective under Swiss law, that law will govern the parties’ asset relationship.
If there has been no such selection of a marital regime or a foreign law, the default Swiss property regime of “ participation aux acquêts” (shared acquired property) will apply. Under that regime, the assets that each spouse owned before the marriage or received through gift or inheritance after the marriage are not shared between the spouses. However, the assets that either or both of them acquire during the marriage are required to be shared. (Arts. 196-220, Swiss Civil Code).
Switzerland: Recognition of Foreign Divorces
Foreign decrees of divorce or separation are required to be recognized in Switzerland if they are rendered in the state of domicile or habitual residence, or in the national state, of either spouse, or if they are recognized in one of those states. However, a decree that was rendered in a state of which neither spouse or only the plaintiff spouse is a national shall be recognized in Switzerland only if :
a. at the time of filing the action, at least one of the spouses was domiciled or had his or her habitual residence in that state and the defendant spouse was not domiciled in Switzerland; or
b. the defendant spouse submitted to the jurisdiction of the foreign court without reservation; or
c. the defendant spouse expressly consented to recognition of the decree in Switzerland.
(Article 65, Swiss Statute on Private International Law).
 Foreign decisions relating to marital property relations must be recognized in Switzerland if:
a. they were rendered, or are recognized, in the state of domicile of the defendant spouse; or
b. they were rendered, or are recognized, in the state of domicile of the plaintiff spouse, provided that the defendant spouse was not domiciled in Switzerland; or
c. they were rendered, or are recognized, in the state whose law applies to the marital property relations pursuant to this Act; or
d. to the extent that they relate to real property, if they were rendered, or are recognized, in the state in which such real property is located. (Article 58, Swiss Statute on Private International Law).

Monday, May 19, 2014

UK Ruling: Inchoate Right of Custody under Hague Abduction Convention

Jeremy D. Morley
The U.K. Supreme Court has just issued a significant decision on the definition of the all-important term “right of custody” as used in the Hague Abduction Convention. In the Matter of K (A Child) (Northern Ireland) [2014] UKSC 29. The Court has now ruled that that term may include certain informal rights (termed “inchoate rights”), but only if specified and limited conditions are fulfilled.
The child in question lived with his maternal grandparents in Lithuania, with the express written agreement of the child’s mother. The father was always uninvolved. When the child was 7 years old the mother unilaterally removed from Lithuania to Northern Ireland against the grandparents’ wishes. When the child was an infant a Lithuanian court order had placed the child in the temporary care of the grandparents but that order terminated upon the application of the child’s mother shortly before she removed the child from Lithuania.
The grandparents brought a Hague proceeding claiming that the child had been removed from his habitual residence in Lithuania in violation of their “rights of custody” over the child. They had no custody order in their favor and there was no evidence that grandparents had any rights in respect of the child under Lithuanian law. Nonetheless, if they had applied for a custody order in Lithuania they presumably would have had a good chance to have secured one.
Article 3 of the Convention provides that:
“The removal or retention of a child is to be considered wrongful where – (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually being exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."
Rights of custody are further defined in Article 5(a), which provides that, for the purposes of the Convention, "'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence"; while rights of access are further defined in article 5(b), which provides that " 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence". Rights of custody are respected by the obligation in Article 12 to order the return of the child "forthwith" where he has been wrongfully removed or retained in terms of article 3, unless one of the limited exceptions provided for in Articles 12 and 13 apply.
The attribution of "rights of custody" is to be determined according to the law of the country where the child was habitually resident immediately before his removal or retention.
The Court considered foreign authorities on “inchoate” rights. It did not unearth any helpful United States authority on this issue. It found that New Zealand has recognized such rights under the Convention for outgoing (requesting) cases; Canada has recognized it for an incoming (requested) case; Australia has recognized it for an incoming (requested) case from the USA but failed even to consider it in an incoming (requested) case from New Zealand; and Ireland has expressly refused to recognize it in an incoming (requested) case from the United States.
The Court concluded that a “strictly limited category” of inchoate rights should be permitted to form the basis for a Hague return application in order to fulfill the purpose of the treaty.
Lady Hale, speaking for the majority of the Court, stated that the applicability of inchoate rights of custody should be limited to situations in which (a) the applicant was undertaking the responsibilities and enjoying the powers entailed in the primary care of the child; (b) the applicant person was not sharing them with the person who had a legally recognized right to determine where the child should live and how he should be brought up; (c) that person had abandoned the child or delegated his primary care to them; (d) there was some form of legal or official recognition of the applicant’s position in the country of habitual residence (to distinguish those whose care of the child is lawful and those whose care is not); and (e) there is every reason to believe that, were the applicant to seek the protection of the courts of that country, the status quo would be preserved for the time being while the long term future of the child could be determined in those courts in accordance with his best interests.
Applying that standard to the pending case, the Court ruled that the grandparents did indeed have a Hague Convention right of custody and accordingly the Court ordered the return of the child to Lithuania forthwith. A final comment in the judgment is also noteworthy. Lady Hale noted that the English court possess an “inherent jurisdiction to order the immediate return of a child who has been removed from his country of habitual residence.” Such jurisdiction is entirely independent of the Hague Convention and should have been exercised in the pending case.  

Tuesday, May 13, 2014

Sweden Global Child Custody Manual

We handle very many U.S. - Swedish international child custody and international child abduction cases, working with Swedish counsel and Swedish consular officers.

Sweden publishes global custody battle manual
Published: 09 May 2014

The Swedish government has published a manual for parents who fear their child will be taken abroad against their will - "Sweden cannot meddle in another country's laws."

 "The number of children who are taken without permission and who are kept in another country... has increased in recent years," the Swedish government said on Friday.

Global custody battles can be notoriously fraught, with a parent at times forced to abandon their life in Sweden to fight for the child in the other country. But that can also pose problems at home in Sweden, as one Helsingborg woman found out.

Earlier this year she won a case in Sweden against the local government, which had withdrawn benefits that helped pay for her flat. The home had been empty because the woman has spent more than a year in Lebanon fighting to regain custody. The municipality was ordered in February to revise the case.

"God I'm so happy," the woman told local newspaper Helsingborgs Dagblad in February. "The fact that the municipality withdrew (the money) meant that I, my sister, and my mother have had to go into debt to keep the apartment."

While the new government guide went into some detail about the financial aspects of fighting to have a child returned, it mainly focused on domestic and international laws. Swedish parents who were married when the child was born automatically have shared custody, the pamphlet noted. Shared custody means that both parents have to give consent before the child travels abroad.

If a parent has been granted full custody by a Swedish court, however, that parent has the right to take the child abroad without consulting the other parent.

The guide underscored that the Swedish foreign ministry would not act as a parent's legal representative, but that it could offer guidance if a child was taken abroad.

Ninety countries have signed the Hague Convention that dictates if a person can take and keep a child abroad, the Swedish government noted. For a parent to claim the legal right to have the child returned to Sweden, he or she must have had full or shared custody of the child, who should be younger than 16. 

"In the cases where the Hague Convention applies there is a relatively big chance to have the child returned," the guide noted. "On average, 85 percent of cases are resolved."
A parent should contact the foreign ministry, which will provide the parent with a form to fill out. 

In countries that haven't signed the convention, however, a parent would be forced to abide by national legislation governing custody and to enlist a local lawyer. 

"Sweden cannot meddle in other countries' laws and legal processes, just like other countries cannot meddle in such a way in Sweden," the guide noted, before offering concrete tips to parents who feared their child or children would be taken away - such as photographing the child often, to have a photo at hand, but also to keep note of the former partner's passport details.

Prevention could be the best way forward, the guide said.

"In a situation where you fear that your child will be taken out of the country imminently, we recommend that you contact the border police at the airport in question," the guide stated. "Inform them of the situation." 

Thursday, May 08, 2014

Latest U.S. Hague Abduction Convention Compliance Report

by Jeremy D. Morley

The U.S. Department of State Office of Children’s Issues has issued its 2014 annual report on compliance with the Hague Convention on the Civil Aspects of International Child Abduction, covering the period from January 1, 2013 through December 31, 2013.

             Some notable points are as follows:
            -Costa Rica, Guatemala, and Honduras were determined to be “non-compliant” with the Convention.  Costa Rica and Guatemala demonstrated non-compliance in the areas of judicial and central authority performance.  Honduras demonstrated non-compliance in the areas of judicial, law enforcement, and central authority performance.  Notably, Costa Rican courts have delivered verdicts that are inconsistent with Hague principles; Guatemala has demonstrated significant delays in processing cases and responding to USCA’s requests for information; and the Honduran judiciary continues to treat Hague cases as custody matters. 

                  -The Bahamas and Brazil showed “patterns of noncompliance with the Convention.”  Notably, the Bahamian courts tend to treat Hague cases as custody matters, resulting in delays.  Brazil’s issues can all be tied to delays; in locating children, lengthy reviews conducted by Brazilian federal judges, and numerous appeals that may be filed by taking parents.

                  -Four countries were categorized as “Countries with Enforcement Concerns” in which left-behind parents in the United States have not been able to secure prompt enforcement of a final return or access order during the reporting period because of the absence of effective enforcement mechanisms. These countries were Brazil, Mexico, Romania, and Ukraine. 

                 -The State Department reported on 18 countries where applications for return had remained open for more than 18 months after the date of filing. These are Argentina (three cases), The Bahamas (three cases), Belgium (one case), Brazil (nine cases), Canada (two cases), Colombia (one case), Costa Rica (two cases), Croatia (one case), Dominican Republic (two cases), Guatemala (two cases), Honduras (three cases), Israel (one case), Italy (one case), Mexico (sixty four cases), Panama (one case), Peru (eight cases), Poland (two cases) Romania, (one case) Slovakia (one case), and Turkey (three cases).  Questions can certainly be raised as to how Mexico and Peru for example were not categorized as either “non-compliant” or showing “patterns of noncompliance with the Convention” with such high numbers of cases open for more than 18 months after the date of filing.

      The full text of the report can be found here:

Tuesday, May 06, 2014

Japan's Child Abduction Laws in Limbo

May 6, 2014 - 9:51am |
By Yaffa Fredrick

There are some lists on which you’d rather not appear. The top ten countries with highest incidence of reported child abductions is one of them. Until this year, Japan featured prominently on this U.S. State Department List. In response to growing political pressure from the West, though, Japan finally signed the Hague Convention on the Civil Aspects of International Child Abduction this January.

Under the recently adopted Hague Convention guidelines, Japan now agrees “to protect children from the harmful effects of abduction and retention across international boundaries by providing procedures to bring about their prompt return.”

International child abduction is often synonymous with parental kidnapping, whereby a parent removes a child from his country of residence and takes him to another country for an indefinite period of time. This forced removal creates a jurisdictional conflict of law, complicating custodial battles and endangering the emotional welfare of the child.

Prior to Japan’s Hague Convention ratification, this often resulted in a Japanese mother divorcing a foreigner overseas and then taking her child back to Japan. Once in Japan, Japanese family law favored the rights of the mother, rendering the father powerless and all but ensuring he would never see his child again. In short, the law was structured as a “winner-take-all-system,” and at greatest cost to the foreign-born father.

Given how archaic this system of law is, it is a wonder that it took Japan until 2014 to become a signatory to a treaty that provides a clear framework for a more equitable division of custodial responsibilities. And yet, Japan was the last G-8 country to sign the treaty and the 91st in the world to ratify it.

According to Jeremy Morley, an international child abduction lawyer in New York, Japan only ratified because of external pressure. “There was a series of demands by western countries, calling on Japan to change its practices. And these demands came from the highest offices—the foreign ministers of prominent world powers,” Morley said.

Bryce Neier, an international lawyer who has handled child abduction cases across the U.S., Europe, and South America, echoes this sentiment. He argues that Japan’s choice to sign was a consequence of foreign countries, particularly the United States, calling for immediate compliance after several international child abduction cases made major media headlines.
But optimists beware, Japan’s ratification may not lead to a radical change in the legal status quo. Colin P.A. Jones, a law professor at Doshisha University in Kyoto, notes that while foreigners expect ratification to result in Japanese courts delivering more favorable results, the Japanese expect it to result in “the cessation of criticism from abroad.”

Japan’s reluctance to sign and ultimately enforce the Hague Convention is deeply rooted in centuries of cultural conservatism. Japanese family law treats a married couple and their children as a single unit and subsequently favors the preservation of that unit. The international treaty, on the other hand, considers parents and children to be individuals and provides legal recourse so that all parties are recognized accordingly.

As Jones explains, “Japan still can’t deal with the concept of a married couple having different last names so it is hard to see them getting on board with radical notions like joint custody.” And while Japanese divorce is on the rise—peaking at 27 percent in 2002—no formal framework for joint custody has yet been established.

Of course, cultural relativism is not the only factor at play. While many can acknowledge that Japanese family law is out of date, few government bodies—including the National Diet (Japanese legislature)—are interested in revising the civil code. Conservative politicians, like Prime Minister Shinzo Abe, stand to gain more from protecting traditional family values than kowtowing to the demands of western powers. In other words, while the Japanese Foreign Ministry has officially signed the Hague Convention, its judicial structures are unlikely to amend their adjudicative processes anytime soon.

Already, there is evidence that the Japanese legislature is taking advantage of the treaty’s ambiguities. According to Article 13b of the Hague Convention, an abducted child does not have to be returned to his home country if there is a “grave risk” to his psychological or physical welfare.

In adopting this article, the Diet broadened the scope of this defense to include not just the child, but the Japanese mother as well. For example, a Japanese mother who has abducted her child can argue that returning the child would place an undue economic burden on her. Under Japanese doctrine, her alleged economic situation would meet the ambiguous “grave risk” standard. Simply put, Japan’s law “opens the door to a defense that can defeat almost any application for return,” Morley says.

Despite Japan’s resistance to comply with the new international standards, Neier believes this is “clearly a positive step forward.” Prior to Japan’s ratification of the treaty, child abduction cases in Japan were a complete waste of time and financial resources. At least now Japan has adopted, if only technically, international parameters for adjudication.

There is also tacit acknowledgement that Japanese family law, as it stands, is in desperate need of revision. If the Japanese courts continue to rule against foreign fathers, it is quite likely that the same western forces that demanded ratification of the Hague Convention will also demand more rigorous modifications to the Japanese judicial system. And this time, those forces will have the added weight of the international community behind them.