Monday, September 28, 2015

International Family Law: Comparing Divorce Jurisdictions

Procedure May Trump Substance 

Jeremy D. Morley  

When comparing possible jurisdictions for international family law cases, it is frequently important to focus on procedural matters and not simply to compare the rules and practices concerning the division of assets, maintenance and other substantive issues. For example, while it is important to know how different courts will determine which assets are to be divided upon a divorce and how they will determine the appropriate proportions, it is often even more important to compare the discovery techniques of the jurisdictions being compared and the disclosure obligations imposed upon the parties in the various jurisdictions. Case in point: California is at one extreme in requiring real disclosure, while Austria, Japan and many other civil law countries are at the other extreme in requiring very little disclosure.

These distinctions became apparent in a matter in which we were asked to compare possible jurisdictions for a divorce case. (The facts have been changed for confidentiality purposes). We determined that the client could bring suit for divorce as well as for the consequential financial issues in either California or Austria. We also concluded (with local counsel) that the division of assets would yield similar results in both places and that, while child support might be better in one jurisdiction, it would be offset by better spousal maintenance in the other.

The challenge was that our client believes that the other spouse is hiding assets and that it will, therefore, be necessary to conduct disclosure in order to ensure that the hidden assets are brought before the court. Accordingly, we compared the disclosure rules, both as to how the rules appear in the statutory language and legal texts, and also as to how they are applied in practice.

In civil law jurisdictions, such as some European countries, the practice is for the parties to be required to present their own evidence to the court, but there are generally no procedures for a party to engage in self-directed discovery. All that a party can do is ask a judge to sort out the evidence that each side presents and hope that the judge will decide to call a witness. A litigant is not expected to disclose all of his or her assets, and there are no penalties for failing to do so. Litigants are widely expected to present evidence that supports only their position, just as their witnesses are expected to provide only information that presents their position in a positive light. It falls to the judges to sort the evidence and the testimony. They determine what evidence is germane to the proceedings and, in many civil law countries, they can call their own independent witnesses.

California Law

The contrast with American states, but most especially with California, could not be more extreme. Section 721 of California's Family Code requires each spouse to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets and to provide equal access to information. This duty persists until each asset has been divided by the trial court. Section 2100(c) mandates full disclosure of all assets and liabilities of each party in the early stages of a divorce proceeding, regardless of whether a party believes them to be community or separate property. Furthermore, the information must be updated when changes occur. The parties are required to exchange preliminary and final declarations of disclosure (Family Code, Sec. 2103). In order to deter nondisclosure, Section 2107(c) of the Code requires the trial court impose monetary sanctions if a party fails to comply with disclosure obligations. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the non-complying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

In In re Marriage of Feldman, 153 Cal.App.4th 1470, 64 Cal.Rptr.3d 29 (Cal.App. Dist.4 July 20, 2007), the California courts made it clear that, not only must a spouse respond fully to requests by the other spouse for documents and information about assets, but it is not necessary for a spouse to take the initiative in seeking such information.

The Fourth District Court of Appeal affirmed a trial court's order that a husband in a dissolution proceeding had to pay $390,000 in sanctions and attorney's fees to his wife because he did not disclose financial information. The parties had been married for 34 years, during which time the husband had formed many companies. He declared that his assets were worth over $50 million. Throughout the proceeding, he provided updates to his Schedule of Assets and

Debts, and responded to discovery demands from his wife's attorney. However, it was shown that he did not disclose several financial transactions, including a residence, a bond, a 401(k) account and several privately held companies.

The sanctions were ordered, even though there was no economic damage to the wife, who had learned of the non-disclosed assets before trial and had received her share of the assets. The court held that the wife need not prove damage because the sanctions were designed to deter repetition of non-disclosure and to encourage disclosure. The court stated that the husband had the duty to disclose material facts to the wife in writing; to supplement and augment the discovery continually; and to disclose material data immediately and before a new project.

Other Common Law Jurisdictions

The English courts require full disclosure and brook no nonsense when it comes to inferring nondisclosure. Similar principles apply in countries such as Australia, Canada and Singapore.

European Civil Law Countries

The contrast with civil law in Europe is dramatic. In California, the spouse with knowledge of personal financial matters has the affirmative and continuing duty of making disclosure and is at significant risk if the disclosure is insufficient. In civil law countries, the spouse with such knowledge has little or no obligation to disclose anything and may play "hide and seek" with assets in a "game" in which the asset-holding spouse can do the "hiding" and the other spouse has few methods of doing the "seeking."

Thus, in Austria, neither the General Austrian Civil Code nor the Austrian Marriage Act contains any explicit provisions obliging the spouses to provide each other or the competent authority with information on their income and assets. If a spouse demands a certain amount, the other spouse needs to show that his or her assets are not as claimed, but there is little or no way to force a thorough tracing of assets. In Germany, Section 1580 of the Civil Code requires divorced spouses to provide information to each other as to their income and assets, and the Code contains mechanisms to compel the delivery of such declarations, but there is little that a party can do in advance of trial to probe such declarations or to search for suspected assets.

In Spain, Article 774(2) of the Civil Proceedings Act authorizes the courts -- but not the parties themselves -- to request financial information that they consider necessary either from the spouses themselves or from third parties, especially for the purpose of deciding on the economic effects of divorce. If the spouses disagree on financial issues and the respondent refuses to divulge his or her assets or hinders efforts to obtain such information, the courts may resort to indirect proof or proof by circumstantial evidence in order to resolve such issues. This means that the power of an aggrieved plaintiff is extremely limited and he or she must hope that the judge is extremely proactive. Colleagues in Spain note that it is quite rare to find a proactive judge.

Therefore, in this pending matter, we concluded that the fact that California law imposes such a heavy responsibility on the other spouse to disclose assets, and the court has the power -- which it exercises strongly -- to punish a failure to make such disclosure, tilted the balance strongly in favor of bringing suit in California rather than in Austria.

There is virtually no discovery in Japan. The court or a party may make a “request for clarification,” requesting particular documents or answers to particular questions, but such requests are generally insignificant. In practice, judges merely urge the parties to submit relevant documents voluntarily.
Likewise, discovery is generally unavailable in China and Korea. A spouse who does not have proof of the assets held by the other spouse is generally unable to obtain any division of any such assets. 


It is critical when comparing divorce jurisdictions to look beyond the letter of the law and to examine the actual ways in which divorce cases are handled in the respective jurisdictions in the real world. If your client is the party looking for assets, you must pay careful attention to the discovery rules in the potential jurisdictions and especially to the ways in which those rules are likely to be implemented in practice. 

Friday, September 25, 2015

Book Review: The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers

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;
Reviewed by Stephen A. Braunlich
Stephen A. Braunlich is a U.S. Air Force Judge Advocate stationed at Malmstrom Air Force Base in Montana, where he serves as Chief of Administrative Discharges—(757) 784-5532, The views expressed are his own and are not endorsed by the U.S. Air Force or the Department of Defense.
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 Convention’s 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.

Thursday, September 24, 2015

Uganda Divorce & Bride Price


Jeremy Morley

The Supreme Court of Uganda has refused to declare that the practice of exchanging money, cows, or other goods for a bride is unconstitutional in Uganda, notwithstanding the claim that it reduces the women to mere properties.

However, the Court has ruled that it is unconstitutional for a man to have the right to claim a refund from his spouse's family if the marriage ends. Husbands often expect the dowry to be returned in cases of dissolution of the marriage.

The constitutional challenge to the practice was started in part by MIFUMI, a Ugandan organization combating domestic violence and the bride price, with the support of other women's rights organizations.

While the practice itself was not struck down, MIFUMI said it hoped that at least the ban on refunds of bride prices would help women leave abusive relationships.

A bride price is the custom of a groom paying a woman's family with money, cows, land or other material goods in exchange for a wife. The tradition originated as an official recognition of a marriage and as a gift for the bride's family. It was also believed to add value to the woman and protect her from abuse in her new household. The practice remains common in Uganda, particularly in rural communities but also in urban centers. The modern bride price still follows the same principal of exchange, but families are now often asked to sign contracts with the groom as proof of payment of the bride price.

Prior to this decision, if a marriage failed, men could go back to the woman’s family home to demand a return of their property. But the Supreme Court in Kampala has ruled, in a majority judgment of 6:1, that the traditional custom and practice of demanding a refund of the bride price if a marriage breaks down is unconstitutional and “dehumanising to women."

“The return of [the] bride price connotes that the woman in marriage was some sort of loan. But even in sale, the cliche is that goods once sold cannot be returned or goods once used cannot be refunded. If that cannot be done in respect to common goods like cows, why should it be applied to a woman in marriage?” asked Justice Bart Katureebe.

Across sub-Saharan Africa – from Malawi, to Zambia to Kenya and South Africa – the practice of paying a bride price is quite common. In Kenyan pastoral communities, it is paid in the form of cattle and has been blamed for rampant cattle rustling.

The practice is particularly entrenched among some Ugandan ethnic groups, especially in western, east and northern areas of the country. The negotiations over payment take place between male representatives of the two families – women are not allowed to take part.

Critics say paying a bride price can trap women in abusive marriages and encourages early marriage.
According to United Nations figures, an estimated 40% of girls in Uganda are married before they are 18, with eastern and northern Uganda registering the highest number of child marriages. A major reason for the high number is understood to be because parents, particularly poorer parents, want to get the bride price.

In June last year, the eastern Uganda district of Butaleja passed its own law making it illegal to demand refund of the bride price, or to deny a woman burial on account of non-payment of the bride price by the man. The ruling was initiated by MIFUMI.

Wednesday, September 23, 2015

Malaysia and International Child Abduction

by Jeremy D. Morley

Malaysia is not a party to the Hague Abduction Convention. Malaysia has refused to adopt the treaty, on the ground that it would purportedly contradict Shariah law, since that law bases child custody decisions to a substantial extent on religious, age and gender factors.  Given that the Convention has now been signed by more than 90 countries, including some Islamic countries, the failure of a country to join the community of nations in signing and implementing the treaty is a red flag that the country is unlikely to return abducted children promptly, if at all. Further, there are no international or bilateral treaties in force between Malaysia and the United States dealing with international parental child abduction.
In Malaysia child custody cases between Muslims are conducted before Shariah courts. Other cases are conducted before civil courts. However, even in the Malaysian civil courts foreign custody orders are not binding and such courts must review the best interests of the child in any custody case in which a foreign custody order has already been issued. The leading case is Mahabir Prasad v Mahabir Prasad, [1981] 2 MLJ 326, in which the Federal Court ruled that the trial court had been committed error by applying the terms of an Indian custody order without conducting a full evaluation of the children’s best interests The Shariah courts apply Shariah law in custody cases and foreign non-religious court orders have no role in that process.
The sharp split between the two judicial systems, the Shariah rules that favor Muslims, and uncertain rules and practices as to whether a child may be unilaterally converted to Islam, have provided non-Muslim fathers in Malaysia with a devious ploy to procure sole custody of their children. They convert to Islam, then purport to convert their children to Islam and then petition the Shariah courts for sole custody. Article 121(1A) of the Malaysian Federal Constitution  provides that the Civil High Courts in Malaysia have no jurisdiction in respect of any matter that falls within the jurisdiction of the Shariah Courts. This practice has created enormous controversies in Malaysia which have still not been fully resolved.
The case of Indira Gandhi v Mohd Ridzuan Abdullah, concerning a Hindu family in Malaysia, has been pending for at least five years In that case, the father converted himself and his children to Islam, unilaterally removed the children from the family home, and in 2009 obtained an order of sole custody in his favor from a Shariah court. The mother went to the civil court and ultimately, in 2010, obtained an order giving custody to her. The father refused to follow the civil order. Litigation continued and in 2013 the Malaysian High Court at Ipoh declared the unilateral conversion of a child to be unconstitutional. In the same month, however, the Islamic Affairs Department in Seremban, Malaysia declared that the Shariah court had acted properly in granting sole custody to a father who had converted himself and his two Hindu children secretly to Islam. The Court of Appeal then set aside a mandamus order issued by the Ipoh High Court compelling the inspector-general of police to arrest the father, and for him to find and return the child to her mother. The mother’s appeal to the Federal Court is now pending.

Thursday, September 17, 2015

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?

Tuesday, September 15, 2015

International Child Relocations

Jeremy D. Morley
I was pleased that authors Audrey G. Masilla and Kristine M. Jacquin, in their chapter entitled “Relocation Evaluations in Child Custody Disputes” in the newly-published Handbook of Child Custody (Mark L. Goldstein, editor) relied substantially, when discussing international relocations, on my prior article on the topic.  My article, entitled “The Impact of Foreign Law on Child Custody Determinations, is available here. 
In the portion available of their work freely available online, the authors stated:
“Because of the complex nature of foreign relocation, and what will and will not be recognized in U.S. courts, Morley asserts that when foreign relocation is probable, it is essential for those forensic psychologists conducting relocation evaluations to be knowledgeable and take into consideration whether the country under question recognizes and enforces U.S. custody agreements.  This knowledge pertaining to U.S. law for relocations to foreign countries is vital in order to maintain the safety of and reduce the potential consequences for both the child and the left-behind parent.  However, regardless of whether the forensic psychologist and/or the U.S. court system is cognizant and knowledgeable to the applicability of the U.S. custody determinations in foreign locations, it is impossible to evaluate the true risk to the child (or left-behind parent) or the potential experiences that may take place until he or she is residing in the country of request.
Nevertheless, Morley suggests that various elements usually included within a foreign custody relocation agreement include a specified date of return that is nonnegotiable without written approval via the left-behind parent, posted bond (e.g., money) to ensure compliance with the U.S. custody order, and acquisition of a mirror order (e.g., mirror order from foreign country) in advance and at the expense of the parent requesting movement of the child.  When dealing with mirror orders, (1) the verbiage used in the order may not transfer meaning accurately across cultures, (2) the receiving country may not uphold the order, (3) the order can be modified by the resident of that particular country, and (4) not all countries will provide a mirror order.
While international relocation evaluations maintain a multitude of intricacies and complexities necessary to navigate, Morley provides recommendations for custody evaluators that deal with such international relocation evaluations, which include being cognizant of the varying laws between foreign countries pertaining to client-specific factors, determining if the country of relocation is in collaboration of the Hague Abduction Convention, acknowledging that foreign countries may not uphold a U.S. custody order, consulting with an expert in international family law, providing safeguards for travel and visits to foreign lands, recommending a mirror order (if possible), and, if the determined relocation is that the child not relocate, providing recommendations for safeguarding the denial situation (see Morley 2013 for full list regarding international visitation and relocation).”

Monday, September 14, 2015

Implications of Mixed Marriage for Indonesian Women’s Property Ownership

Awareness of the Marriage Law is essential for Indonesian women who marry foreigners to retain their land rights.

Indonesian women who marry foreigners need to have sufficient understanding of the 1974 Marriage Law, the 1958 Citizenship Law and the 1960 Agrarian Law to enable them to retain their right to own freehold property.

Article 35 of the 1974 Marriage Law clearly states that a person can retain all assets obtained prior to marriage or assets inherited during marriage, unless the couple makes a prenuptial agreement. The definition of assets here covers land and property. While articles 29 and 36 of the Marriage Law require Indonesian who marry foreigners to make prenuptial agreements in order to buy and own property if they wish to do so after they marry.

The National Land Agency (BPN), however, uses the old Dutch citizenship law, which stipulates that Indonesian women who marry foreigners are automatically considered foreigners. This principle is then applied to the 1960 Agrarian Law, which stipulates that foreigners are not allowed to own freehold property and may only be granted leasehold title. 

This may explain why some Indonesian women who marry foreigners sell their land to the BPN out of fear that they will lose it or have their ownership status reduced to a 70-year leasehold title, which has to be renewed every 25 years.

University of Indonesia international law professor Zulfa Djoko Basuki has criticized the BPN for referring to the old Dutch citizenship law when it comes to mixed marriage-related wealth, saying that this interpretation was bad since it was contrary to legal principles.

“The old Dutch citizenship law has been replaced by Law No. 62/1958 on citizenship. The new law states that Indonesian women who marry foreigners are free to choose their citizenship. Therefore, they can still be Indonesians if they choose to be,” she told The Jakarta Post in a recent interview.

She went on to say that the BPN’s adherence to the Dutch law infringed one of the most basic legal principles, namely the principle of simultaneous enforcement.

“With the issuance of the new law, the old law is automatically annulled. Therefore, with the issuance of Law No. 62/1958 on citizenship, the old Dutch law no longer applies. Indonesian women who marry foreigners but still choose to be Indonesians still retain their right to own freehold property,” she said.

Furthermore, a law that regulates specific things (lex specialis) automatically annuls the law that regulates general things (lex generalis).

“Therefore, in order to regulate the right to own land or property in the context of mixed marriage, the BPN should adhere to the Marriage Law instead of the Agrarian Law,” she said.

Commenting on the Marriage Law’s requirement for Indonesians marrying foreigners to make prenuptial agreements if they wish to own property after the marriage, Zulfa lamented that many Indonesian women failed to make such agreements out of ignorance about the law.

“Many Indonesians still perceive a prenuptial agreement as having to do solely with asset division,” she said.

As a result, many Indonesian women are surprised to find that they cannot buy or own property after marrying a foreigner.

Indonesian Property Watch (IPW) executive director Ali Tranghanda said that Indonesian women’s lack of awareness of the abovementioned principles had caused them to lose their property ownership rights.

Zulfa said that if women who married foreigners understood the intricacies of the relevant laws, they could challenge the BPN’s claim that these women’s freehold property ownership should be revoked, thereby retaining their rights, even after they marry foreigners.

“If the BPN still insists on downgrading these women’s rights, then these women could go further and take the case to the PTUN [state administrative court]. If the judge rules in favor of these women, it could affect the jurisdiction of the BPN, rendering its efforts to force these women to sell their property obsolete,” she said.

Zulfa said she regretted that so far no women had challenged the BPN or taken their cases to the PTUN because of their mistrust in Indonesia’s legal system. “This is a shame, when in fact just one legal action could trigger change for the whole system. Nobody can act above the law anymore,” she said.

Ali said that people who were concerned about the issue needed to conduct educational programs or information dissemination events to spread knowledge on how women who marry foreigners could retain their rights.

“We already have excellent regulations regarding property ownership. We only need to keep an eye on their implementation. Plus, we also need to make sure that these women are truly aware of how these laws can be used to protect them. It’s dangerous when such women are not aware of their rights,” he said.

He added that the corrupt legal system made it even easier to exploit women who were ignorant about their rights.

Some developers are of the view that to allow Indonesian women to retain their right to own property after they marry foreigners, “they need to be aware of their rights as well as the regulations stipulated by the three abovementioned laws, because these are the roots of the problem,” he said.

“Furthermore, we need to keep an eye on the implementation of the three laws,” he added.

Friday, September 11, 2015

Serving proceedings in Russia under the Hague Convention

The English High Court has clarified one aspect of service of English proceedings in Russia under the Hague Convention.

The English Courts remain an attractive venue for Russian related litigation. A claimant wishing to serve proceedings on a Russian based defendant will invariably need permission from the English Court and several recent cases have clarified the circumstances in which permission will be granted. In the case of Sloutsker v Romanova though the issue that arose was rather how service in Russia could be effected once permission had been granted. The Court ruled that service of proceedings in Russia had been validly effected under Russian law notwithstanding that a Russian Judge had certified to the contrary.
The Facts
Mr. Sloutsker, a prominent Russian citizen, now resident in Israel, brought proceedings in England against Ms. Romanova for libel arising from defamatory publications in this country. Ms Romanova, also a Russian citizen, is resident in Russia.
Service of English proceedings in Russia ordinarily has to be effected under the Hague Service Convention. As Russia has opted out of allowing service by post under the Convention, service is effected by the often painfully slow process of the English Court sending a request for service to the Russian Ministry of Justice, which then sends the English proceedings to the relevant court in the area where the defendant officially resides. That court then summons the defendant to appear at a Service Hearing to take receipt of the English proceedings.
In this case, the English proceedings were eventually provided to the Tagansky District Court to effect service. In accordance with usual practice Ms. Romanova was summoned to appear before the Court at a specific time and date by way of a telegram, which according to the Court official was handed to Ms. Romanova in person.
Ms. Romanova failed to appear at the Service Hearing. The Russian Judge then certified that the English proceedings had not been served by reason of Ms. Romanova’s non appearance. The documents were then returned to the English Court via the Russian Ministry of Justice.
The Decision
Ms. Romanova sought a declaration from the English Court that she had not been validly served and denied that she had been summoned to the Russian Court. The English Judge held that she had in fact been summoned but then had to address the fact of the Russian Judge’s certificate that service had not been effected. The question was whether there had in fact been valid service under Russian law. Based on expert evidence as to Russian law served on behalf of Mr. Sloutsker, the Judge concluded that there was valid service.
The evidence accepted by the Court was that under Russian law:
  1. If the summons is delivered and received by the recipient he/she is deemed notified of the date and time of the Service Hearing, even if he/she refuses to accept the summons.
  2. Based on a Decree of the Federal Arbitrazh Court of the Urals District, if a recipient notified of a Service Hearing refuses to take receipt of the documents he/she is deemed served.
  3. Under the Russian Civil Procedure Code there is no difference between the situation in which the party appears at the Service Hearing and refuses to take the documents and one in which the party fails to appear at the hearing at all.  
While the Judge was troubled by the fact that the Russian Judge had certified that the defendant had not been served, he was satisfied that there was effective service under Russian law. As the Judge observed it would be a strange gap in Russian procedural law if it permitted a defendant to evade effective service simply by not turning up at the Service Hearing.
This decision is plainly helpful to claimants seeking to serve defendants residing in Russia. Although the case concerned an individual defendant who resided in Russia, the same principles should apply to corporations domiciled in Russia.
We understand that Ms. Romanova is seeking to appeal the decision and a further update will follow its outcome. For the moment, it is important to note that Ms. Romanova did not attend, and was not represented at, the English hearing. There was therefore no evidence before the English Court seeking to challenge the claimant’s expert evidence as to the correct position under Russian law. Even if Ms. Romanova’s appeal fails, it remains to be seen whether the Russian Courts would recognise the validity of an English judgment obtained in the circumstances described in the Sloutsker case if an attempt is made to enforce the judgment in Russia.
Sloutsker v Romanova – [2015] EWHC 545 (QB)

Tuesday, September 08, 2015

Notes on Switzerland and International Child Abduction

Jeremy D. Morley*

The Swiss Central Authority under the Hague Abduction Convention is the Federal Office of Justice in Berne. The Convention entered in force in Switzerland on January 1, 1984. The implementing legislation is the Federal Act of 21 December 2007 on International Child Abduction and the Hague Conventions on the Protection of Children and Adults, which is set forth below.
Rights of custody in Switzerland are attributed by operation of law in accordance with Article 296 of the Swiss Civil Code, under which minors are under jointly exercised parental care of their parents. The parents might be married or not, but they have to be not less than 18 years old.
According to the current legal practice of the Federal Supreme Court, the right of care over a child includes, in particular, the right to determine the place in which the child lives. This means that the parent with the (sole) right of care may, under normal circumstances, move abroad with the child without the agreement of the other parent.
The Federal Act provides, among other things, that applications for the return of abducted children are processed by the Supreme Cantonal Courts; and that the only right of appeal is to the Federal Supreme Court. It also provides for the court to appoint a legal representative for the child, and it authorizes the court to hear the child in person, unless its age or other good cause renders this impractical.
The Act contains measures to implement the basic principle applies that exhaustive attempts should be made at helping parents to reach an amicable agreement by themselves before court proceedings are initiated. The central authority may therefore organize an international family mediation procedure before court proceedings are initiated, provided no parent objects. Once the return procedure has been initiated, mediation or a conciliation procedure is mandatory. There is a network of institutions and specialists in Switzerland qualified in conciliation and mediation, who may be called upon to assist.
A highly controversial provision of the Federal Act is Section 5, which in my opinion unnecessarily expands the scope of Article 13(b) of the Convention. See my article entitled Swiss Law Undermines the Hague Convention. However, in a case rendered in 2012, 5A_479/2012, IIe Cour de droit civil, arrĂȘt du TF du 13 juillet 2012,the Federal Tribunal, 2nd Civil Tribunal, adopted a restrictive interpretation of Section 5.
The case concerned three children who lived in Poland. A Warsaw court decreed the parents' divorce and awarded them exercise of joint parental authority, with the mother having physical custody of the children. On the same day, the parents entered into an agreement on the ancillary effects of their divorce, whereby the children would reside with their mother, and the father had extensive rights of access, in particular in the first week and third weekend of every month. The mother then left Poland with the children to live near her father in Switzerland.
In defense to the father's Hague application, the mother asserted that it would create an intolerable situation if the children were returned to Poland. She relied on Section 5 of the Swiss Federal Law, which provides that "owing to its return, the child is placed in an intolerable situation within the meaning of Article 13(1) b) Hague Convention 1980 in particular when the following requirements are met: a. placement with the applicant parent is manifestly inconsistent with the child's interest; b. the abducting parent, in the circumstances, is unable to care for the child in the State where the child had its habitual residence at the time of the removal, or he or she manifestly cannot be required to do so; c. placement with third parties is manifestly inconsistent with the child's interest."
The appeal court refused to accept the mother's claims. It pointed out that the exceptions to a return should be interpreted strictly, and that only grave risks should be taken into account, exclusive of grounds connected with the parents' educational abilities.
The Tribunal held that the mother's submissions did not demonstrate how the children's return to Poland could expose them to a grave risk of danger. The children had spent only five months in Switzerland, the mother came from Poland where she had lived from 2005 to 2012, and it was not proven that the university training she was undergoing in Switzerland was unavailable in Poland. In addition, even if she decided to remain in Switzerland, there was no reason to conclude that placing the children with the father was manifestly inconsistent with their interest.
Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults
as of 21  December 2007 (Status as of 1 July 2009)

Section 1: General Provisions
Art. 1 Federal central authority
The Federal Office of Justice ("the Office") is the federal central authority in charge of implementing the conventions listed in the preamble.
The Office shall perform the tasks set out in the 1980 Hague Convention and the 1980 European Convention.
Under the 1996 and 2000 Hague Conventions, the Office's tasks shall be:
a. To transmit communications from abroad to the cantonal central authority;
b. to provide information on Swiss law and child protection services in Switzerland to foreign authorities;
c. to represent Switzerland before central authorities in other countries;
d. to advise the cantonal central authorities on these conventions and to ensure their application;
e. to promote cooperation between cantonal central authorities, cooperation with experts and institutions under Article 3 and with the central authorities of Contracting States.
Art. 2 Cantonal central authorities
Each canton shall designate a central authority responsible for implementation of the 1996 and 2000 Hague Conventions.
Unless Article 1 paragraph 3 stipulates otherwise, the cantonal central authorities are responsible for the tasks given to central authorities by the Conventions.
The cantonal central authorities or other authorities designated by the cantons shall on request issue the certificates provided for in Article 40 paragraph 3 of the 1996 Hague Convention and in Article 38 paragraph 3 of the 2000 Hague Convention.
Section 2: International Child Abduction
Art. 3 Experts and institutions
The federal central authority shall, in cooperation with the cantons, see to the establishment of a network of experts and institutions that are in a position to provide advice, to carry out conciliation or mediation, to represent individual children, and that are capable of acting expeditiously.
The federal central authority may entrust the tasks mentioned in paragraph 1 to a private body, which it may pay by reimbursing the expenses incurred or at a fixed rate.
Art. 4 Conciliation or mediation procedures
The central authority may initiate a conciliation or mediation procedure in order to obtain the voluntary return of the child or to facilitate an amicable resolution.
The central authority shall, in an appropriate manner, encourage the persons concerned to participate in the conciliation or mediation procedure.
Art. 5 Return and best interests of the child
Under Article 13 paragraph 1 letter b of the 1980 Hague Convention, the return of a child places him or her in an intolerable situation where:
a. placement with the parent who filed the application is manifestly not in the child's best interests;
b. the abducting parent is not, given all the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction or this cannot reasonably be required from this parent; and
c. placement in foster care is manifestly not in the child's best interests.
Art. 6 Protective measures
The court dealing with the application for the return of the child shall decide, as required, on the child's personal relations with his or her parents and order the measures necessary to ensure his or her protection.
Where the application for return has been received by the central authority, the competent court may at the request of the central authority or any of the parties order the appointment of a representative for the child, the appointment of a guardian, or other protective measures even if the application for return has not yet been received by the court.
Art. 7 Competent court
The supreme court of the canton where a child is resident at the moment when the application for return is lodged is the sole court competent to deal with applications for return, including protective measures.
The court may transfer the case to the supreme court of another canton if the parties and the court in question consent.
Art. 8 Court procedure
The court shall initiate conciliation or mediation procedures with a view to obtaining the voluntary return of the child or to achieving an amicable resolution if the central authority has not already done so.
When conciliation or mediation does not result in an agreement leading to the withdrawal of the application for return, the court shall decide using a summary procedure.
The court shall inform the central authority of the essential steps in the procedure.
Art. 9 Hearing and representation of the child
As far as possible, the court shall hear the parties in person.
The court shall hear the child in an appropriate manner or appoint an expert to carry out this hearing unless the age of the child or another valid reason prevents this.
The court shall order that the child be represented and designate as a representative a person experienced in welfare and legal matters. This person may file applications and lodge appeals.
Art. 10 International cooperation
The court shall cooperate as required with the authorities of the state in which the child had his or her habitual residence before abduction.
The court, if necessary with the cooperation of the central authority, shall satisfy itself whether and in what way it is possible to execute the decision ordering the return of the child to the State in which he or she was habitually resident before abduction.
Art. 11 Decision ordering the return of a child
The decision ordering the return of a child must include instructions for its execution and be communicated to the authority responsible for its execution and to the central authority.
A decision ordering the return of a child and the instructions for execution apply throughout Swiss territory.
Art. 12 Execution of the decision
The cantons shall designate a single authority responsible for executing the decision.
The authority shall take account of the best interests of the child and endeavour to obtain the voluntary execution of the decision.
Art. 13 Amending the decision
The court may, on request, modify the decision ordering the return of a child if the circumstances that would preclude return change significantly.
The court may also decide to discontinue execution proceedings.
Art. 14 Costs
Article 26 of the 1980 Hague Convention and Article 5 paragraph 3 of the 1980 European Convention apply to the costs of the conciliation or mediation proceedings, the court proceedings and the procedure for the execution of the decision at the cantonal and federal levels.
Section 3: Final Provisions
Art. 15 Amendment of current law
Art. 16 Transitional provision
The provisions of this Act relating to international child abduction also apply to applications for the return of a child pending before the cantonal authorities at the time when this Act enters into force.
Commencement Date: 1 July 2009
* Jeremy D. Morley, an international family lawyer and the author of the treatises "International Family Law Practice” and “The Hague Abduction Convention,” is admitted to practice only in New York and works collaboratively with local counsel as appropriate.