Friday, August 29, 2014

Prenuptial Agreements in Japan

Jeremy Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.

Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes. 

-A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters. 

-Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.

There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract. 

Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law. 

In Japan, Article 26 of the Act on the General Rules of Application of Laws ( authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan. 

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.” 

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse. 

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy. 

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

-Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

-Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

-Should the agreement contain a choice of court clause as well as a choice of law clause?

-Should the agreement cover spousal maintenance as well as the division of assets?

-Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?

Thursday, August 28, 2014

Beware of Child Abduction to Egypt

Mum trapped in Egypt with no way out after rescuing abducted daughter
Samantha Landy
Herald Sun
August 26, 2014 8:48PM

A MELBOURNE woman who travelled to violence-plagued Egypt to rescue her abducted daughter has been trapped in the country for more than a year — and the Australian Government says there is nothing more it can do to help her.

Amaal Finn’s five-year-old daughter, Zareen, is unable to leave Egypt due to a travel ban placed on her by her father — Ms Finn’s estranged husband, Mazen Baioumy.
Ms Finn says Zareen was left in Egypt with Mr Baioumy’s family against her wishes in January last year.
Ms Finn travelled to Cairo on August 17 last year to recover her.
Now, 12 months on, Ms Finn is still battling to get the ban dropped so the pair can return home, despite Mr Baioumy being ordered to remove it last year.
Amaal Finn and her estranged husband, Mazen Baioumy, are involved in a court battle.
Mr Baioumy is living in Melbourne.
The mother of three is in the midst of court proceedings in Benha, Egypt, which she says have cost her and her family almost $100,000.
Ms Finn said she had written to Foreign Affairs Minister Julie Bishop pleading for her to help them leave “two or three times”, but was yet to receive a response.
A Department of Foreign Affairs and Trade spokeswoman said the Government had “no standing” to intervene in court matters involving Australians overseas.
Amaal Finn’s estranged husband, Mazen Baioumy.
But she said consular officials were providing Ms Finn with “all appropriate support”, maintaining consistent contact with her.
The Australian embassy in Cairo had also supported Ms Finn in discussions with Egyptian authorities, helped her lodge documents and find local legal representation, the spokeswoman said.
Ms Finn has already been away from her two oldest children — a daughter, 14, and son, 12 — for more than a year and says Zareen is missing out on her childhood.
She said she has been forced to homeschool her daughter, who should have started kindergarten this year, as they are too afraid to leave the small apartment where they are holed up.



Jeremy D. Morley

People with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first consult us for Strategic International Divorce Planning advice. Here is what we do for a motivated client (always working with local counsel as appropriate):

1. Analyze the Family’s Entire Economic Picture.
This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.

2. Consult with the Client as to His or Her Goals.
Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?

3. Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions.
The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.

4. Focus on a few jurisdictions.
We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.

We must analyze, separately for each “target jurisdiction”:
a) The jurisdictional rules. Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What “facts on the ground” will need to be accomplished in order to satisfy the conditions?
b) The grounds for a divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?
c) The nature of the assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.
d) The method of asset division that is used by courts in the target jurisdiction.
e) The relevance of the conduct of the parties to the division of assets in the target jurisdiction.
f) The philosophy of the courts in the target jurisdiction.
g) Spousal maintenance. What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a “clean break” whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?
h) Enforceability issues. Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.
i) Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are:
    -Pre-marital assets. Some jurisdictions allow and even encourage the courts to divide even a party’s premarital assets (England). Others do not (New York).
    -Trust assets. Jurisdictions vary considerably in their treatment of assets that a spouse has placed in trust. Some jurisdictions will “pierce” the trust (Colorado). Others will not (Japan).
    -Inherited assets. Many jurisdictions do not divide assets that a spouse has received as an inheritance. Others do (Netherlands).
    -Gifted assets. Many jurisdictions do not divide assets that a spouse has received as a gift.
    -A pre-nuptial agreement. Some jurisdictions do not recognize international prenuptial agreements as binding. Jurisdictions vary significantly in the bases upon which prenuptial agreements may be invalidated or restricted, in the nature of the burden of proof concerning validity and on other critical factors concerning their applicability.
   -“Bad conduct.” Some jurisdictions punish adultery, criminally and by a financial award to the “innocent spouse” (Korea). Others allow a divorce for mere incompatibility (California).

5. Analyze the rules concerning children.

Jurisdictions around the world vary enormously in their treatment of children upon a divorce.

Issues include:
-     -Sole custody versus joint custody.
-     -Minimal visitation rights to a noncustodial parent versus liberal visitation rights.
-     -Male-dominated approaches versus female.
-     -National biases versus impartiality.
-     -Religious biases versus impartiality.
-     -Freedom to relocate versus limited relocation.
-     -Freedom to take children overseas versus inability to do so.
An analysis of these matters must consider not only the rules on paper but the rules in practice. Enforcement issues may be critical.

6. Select the jurisdiction.
Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.

7. Advise as to the steps now to be taken.
Our advice is frequently required to assist with the implementation of the strategy so as to:
(a) Maximize the likelihood that the jurisdiction in question will indeed be the jurisdiction that actually handles the matter.
(b) Minimize the likelihood that the other spouse will succeed in bringing the case in a less attractive forum or in moving the case from the better forum to a less attractive forum
(c) Maximize the likelihood that the jurisdiction in question will view the facts of the case in as favorable a light as possible.
Caveat: Attorneys in our firm are admitted to practice law only in the States of New York and New Jersey. Any information that we provide concerning the law of another jurisdiction is subject to a client obtaining legal advice from counsel in that jurisdiction. When appropriate we will retain the services of local counsel to assist us in providing advice to a client; the client will be responsible for the payment of the fees of all such local counsel.

Thursday, August 21, 2014

India: A Safe Haven for International Child Abduction

India is a safe haven for international child abductors.

India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. The Convention is the fundamental international treaty that protects the rights of abducted children and serves to have them returned promptly to the country of their habitual residence. It has been adopt4d by more than 90 countries. India’s Law Commission expressly recommended that India should adopt the treaty but the Indian Law Ministry opposed it on the ground that
it would hurt Indian parents who take their children to India.

Furthermore, no Indian legislation sets forth any helpful law on this issue.

In recent years there have been more child abductions from the United States to India than to any other non-Hague country.

The law in India was previously settled that foreign children taken by a parent to India without the consent of the other parent would normally be returned to their country of residence or nationality. However more recent decisions of courts in India changed that rule and held that foreign custody orders are merely items to consider as part of an overall custody review. The Law Commission reported that the Indian courts had followed an inconsistent and unpredictable pattern in international child abduction cases, which would make foreign judges wary of allowing child visits to India, and which should be remedied by signing the treaty. In its most recent ruling the Supreme Court of India capped five years of litigation with a ruling that ordered the return of a child to the United States, but subject to conditions that were difficult to fulfill. However, the abducting mother had – most unusually -- failed to start a custody case in India and the case would otherwise have taken an entirely different course.

The court system in India is extremely slow and inefficient so that an abductor has ample time to create “facts on the ground” in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India.

As a consequence, courts outside India should be extremely wary about allowing parents to take children for temporary visits to India over the objections of the other parents since there is a great likelihood that parents who wrongfully retain children in India will get away with their wrongful conduct scot-free in India.

In Katare v. Katare, 283 P. 3d 546 (Wash. 2013) the Supreme Court of Washington State, en banc, upheld in relevant part the trial court’s ruling in a case involving an American mother and an Indian father. The trial court held that it was not convinced that there was a serious threat that the father would abduct their children to India. However, the potential consequences of any abduction to India were severe and “irreversible.” Accordingly the court was warranted in imposing severe limitations on the husband's residential time with the children, including strict restrictions on the locations of such visitation, surrender of his passport, notification of any change of his citizenship status, and prohibition of his holding or obtaining certain documents (i.e. passports, birth certificates) for the children.

In several cases in several U.S. states and Canadian provinces, the author has testified as an expert witness on this issue.

It is the author’s opinion that a court in a case concerning the prevention of international parental child abduction must weigh both the risk of abduction presented by the facts concerning the specific parent and the risk that is presented by the specific country. The more certain it is that the country to which the child might be taken is a fully compliant Hague Convention treaty partner with an effective legal system, the more evidence that the individual parent is likely to be an abductor is required.

Conversely, when the foreign country is one such as India -- which is not a Hague partner, has an ineffective, slow and even corrupt legal system and is a proven safe haven for international child abductors -- far less evidence of the parent being a likely international child abductor is required to be established in order to justify – and require – a court to take effective steps to prevent a potential child abduction.

In the latter case, because the risk is so great, a parent should normally be barred from taking a child to India if there is any significant evidence that the child might not be returned.

Sunday, August 03, 2014

Getting Your Child Back After a Summer Visit Overseas

by Jeremy D. Morley*
Many children whose parents are separated are spending this summer away from home on vacation in the country of origin of one of their parents. Usually such visits are great, providing excellent and important benefits to the children and their parents.
But sometimes – and it happens all too often – as the date to return home draws near, problems arise. Children announce that they don’t want to go home and they refuse to do so. Or parents with temporary possession of a child insist that it would be best for the child to stay and not go back to live with the other parent.
Indeed, some parents encourage that process. They make sure that the kids have a fantastic summer, taking them on trips to great resorts, showering them with generous gifts and demanding neither homework nor chores. Some parents feed negative information about the other parent to their children, which might be true or often distorted or entirely false, or they encourage them to focus on the negative qualities of the other parent, or the other parent’s family, friends, community, country, religion or people. Sometimes it becomes all-out psychological warfare using all these tactics while the children are away from their usual environment and particularly susceptible to such manipulation.
Faced with such a circumstance, what can -- and what should -- a potentially left-behind parent do?
The all too obvious initial answer is that the parent should have acted before the child was permitted to leave home. There are many steps that worried parents can take, in advance, to improve the chances that a child who may be leaving on an international visit with the other parent will be returned on schedule. These may include home state court custody orders, foreign country mirror orders, well-drafted affidavits by the taking parent, financial performance bonds and legal fee escrow accounts. (And yet, especially with respect to countries that do not usually return abducted children, it is often essential to prevent the visit from taking place at all, because protective measures will likely be useless. Sometimes it is essential to seek a court order barring any such visit, and for this it is usually essential to retain experienced international family law counsel and provide qualified expert witness evidence concerning the nature of the risk).
Once a parent who has taken a child on an overseas vacation has threatened or intimated that the child will not be returned, it is usually necessary to act very quickly but very appropriately. However, self-help can be –and very often is – totally counter-productive.
Before you make threats you need to know how those threats might be interpreted, not only by the other parent, but also by that parent’s lawyers, by judges (both in your courts at home and in the courts in the foreign country), by police and by prosecutors.
Before you allege the other person’s criminality you need to understand whether threatening prosecution is itself criminal; which criminal laws might apply; what those laws actually provide; and how those laws might apply to the facts of your situation.
Before talking “International Law” you need to be advised about the key international treaty, the Hague Abduction Convention. Before threatening to employ it you need to understand whether it applies in your case, what you might need to prove to win a case, what defenses exist and what other exposure you might have.
Before you run to court you need to know the impact that a case in one country might have on the courts in the other country.
Before you threaten to grab the kids yourself and before you waste money on hiring re-abduction “special forces”, you need to understand fully the potential consequences – some extremely serious -- of doing so.
There are many steps that you can take, but every case is different. One size does not fit all. Usually your local lawyers alone will not have the necessary experience to provide you with the strategic advice and big picture review that you must have. You need to consult with an experienced family lawyer who, after understanding the critical issues by interviewing you, can then suggest the most appropriate strategy or strategies, and can lead the effort to implement them. Such counsel will often not be located in the geographical location of your child and the other parent but will bring in a local family  lawyer or a local criminal lawyer in that area to participate in the strategic planning and then to handle the local court proceedings if needed.
In my experience left-behind parents who do not first secure knowledgeable advice often make mistakes, sometimes fatal to their case, that could have been avoided if they had secured the necessary advice from wise and experienced international counsel.
* Jeremy D. Morley consults on international family law matters with clients globally, always working with local counsel as appropriate. He may be reached at +1- 212-372-3425 and through his website, Jeremy has handled hundreds of child abduction cases and  has written the leading treatises on international family law.