Thursday, May 19, 2016

Divorce Law in Korea

Jeremy D. Morley
Grounds for Divorce in Korea

A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Code. Both spouses need to agree and appear in court in Korea.

Alternatively, the grounds for a judicial divorce in Korea are:

          1. An unchaste act (adultery);

          2. Malicious desertion;

          3. Extreme maltreatment by the other spouse or by his/her lineal ascendants;

          4. Extreme maltreatment of one spouse's lineal ascendant by the other spouse;

          5. When the death or life of the spouse has been unknown for three years; or

          6. Any other serious reason for which it is difficult to continue the marriage.

          There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).

          The Korean judicial divorce process is a fault-based contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into an unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting a divorce to the party at fault goes against Confucian morality (doei), and may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.

          The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient, and wise.

Financial Issues in Korean Divorce Law

The Korean Civil Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(1).

The courts consider such factors as the parties' ages, occupations, the reason why they came to a divorce, and their contribution to the property in deciding the proportion. The property that can be divided is property that was acquired during marriage through the cooperation of both spouses. Property that was acquired solely through the individual effort of one spouse even during the marriage is treated as the individual property of that party. Therefore, the court has a very broad discretion to determine what property is divisible, based on the extent to which the parties “cooperated” in the creation of any particular asset.

         Of critical importance is the language in the Code to the effect that the Family Court should determine the amount and method of division “considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(2).

Article 830 defines “particular property” as property that a spouse owned before marriage or property acquired during marriage but is under the name of only one spouse. The meaning of “particular property” in terms of divisible property under Article 839-2 is different from the meaning under Article 830. Property accumulated during marriage that is under only one spouse's name is nonetheless divisible if it resulted from cooperation of the married couple.

The Supreme Court of Korea has affirmed lower court rulings that have insisted that the household labor of one spouse must be taken into account when applying this rule. Nonetheless, the Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances are divisible only if at the time of the divorce they have been received or the date of the retirement and the amount has been declared.

        In addition, there is no spousal maintenance in Korea and the courts have the power to adjust the property division in favor of the economically disadvantaged party. For this reason, in some cases a nonworking spouse has received more than half of the parties' assets. Indeed, Korean counsel report that in practice the typical rule is that upon a divorce the wife is invariably entitled to receive one-half of all the parties' assets, both pre-marital and post-marital.

Choice of Law in Korean Divorce Law

Korean courts apply the law of the parties' common nationality to their divorce and to matters arising from the divorce. If there is no common nationality they will apply the law of a common habitual residence or otherwise the law of the place that is most closely connected to both spouses. Article 840. Korean Civil Code.

However, if one of the spouses is a Korean national whose habitual residence is in Korea the court must apply Korean law. Korea, Private International Act, Art. 39.

        If the parties have chosen a foreign law to govern their marital property the choice will be respected if the agreement complies with execution requirements and if the law that is chosen is that of either spouse's nationality or habitual residence (or in the case of real property is the law of the location of the property). Korea, Private International Act, Art. 38.

        Issues concerning the legal relations between parents and children are governed by the law of the parents' common nationality or otherwise by the law of the child's habitual residence. Korea, Private International Act, Art. 45.

Prenuptial Agreements in Korea

As we have stated, the Korean Civil Code expressly authorizes premarital agreements concerning the division of property between marrying spouses. The Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” A prenuptial agreement may not be altered during the marriage except upon the express approval of a court.

However, Korean counsel have reported to us that since upon a divorce the wife is invariably entitled to receive one-half of all of the parties’  assets, a contract between the parties that gave less than one-half of all such assets would be void under Korean law. This is not statutory but it is the rule nonetheless. A contract that gives more than one-half to the wife would be enforceable. A contract that requires the husband to pay a specific amount of alimony to the wife would be enforceable, provided she received at least one-half of the parties’ assets.

Korean Recognition of Foreign Divorce Decrees

Article 203 of the Korean Code of Civil Procedure provides as follows:

A final foreign judgment shall be valid and enforceable only if it satisfies the following conditions:

1. The jurisdiction of the foreign court of judgment is not denied by any law, or treaty; 

2. if the losing defendant is Korean, he received service of summons or other orders necessary for the commencement of the action other than by public notice, or he made an appearance without receiving service thereof; 

3. the foreign judgment is not contrary to the public policy or good morals of Korea; and

4. reciprocity is secured between Korea and that foreign country.

Two other provisions of the Korean Code of Civil Procedure are also of significance to enforcement:

Article 476 provides:

     1. Enforcement based on the judgment of a foreign court may be carried out only when the admissibility thereof is pronounced by way of a judgment of enforcement rendered by the Korean court.

     2. In regard to a suit demanding a judgment of enforcement, the District Court of the place where the general forum of a debtor exists shall have jurisdiction, and in case no general forum exists, the court having the jurisdiction over the action against the debtor in conformity with provisions of Article 9 shall have jurisdiction.

Article 477 provides:

         1. A judgment of enforcement shall be rendered without inquiring into the merits of the decision.

          2. A suit demanding a judgment of enforcement shall be dismissed in the following cases:

         (i) When it is not certified that the judgment of a foreign court has become irrevocable;

         (ii) When the foreign judgment does not fulfill the conditions prescribed in Article 203.

The effect of the three statutory provisions is to provide several distinct requirements that must be satisfied if a foreign judgment is to be enforced in Korea:

            (a) The requirement of finality and conclusiveness

Interim awards are not the subject of enforcement proceedings in Korea. Foreign temporary dispositions are not recognizable because of their nature as provisional remedies.

A foreign judgment will be considered a final judgment only if there exists no possibility of a future appeal. The party seeking to enforce a foreign judgment must prove either that an appeal is not possible or that the time for an appeal has passed. California counsel should advise as to whether or not these conditions have been fulfilled.

An order for pre-judgment attachment and an order for pre-judgment injunction are examples of non-final judgments. Similarly, even if a foreign judgment which is permitted provisional enforcement pending an appeal is enforceable in the concerned jurisdiction, it cannot be a subject of recognition in Korea so long as it is not final.

            (b) The issue of the location of the subject-matter

The in personam and in rem concepts are alien to Korean jurisprudence. Generally, a foreign judgment in rem would be recognized and/ or enforced in Korea when the judgment concerns immovable or movable property that was within the jurisdiction of the foreign court at the time of the proceeding.

            (c) The jurisdiction of the foreign court

It is clear that a Korean court will not enforce a judgment of a foreign court concerning a dispute that is subject to the exclusive jurisdiction of Korea or a third country. For example, in an action concerning rights in Korean real estate Korean courts have exclusive jurisdiction. This will apply to movables located in Korea.
(d) Public policy

Public policy or good morals in Section 203 are judged by Korean standards. The requirement has a broad meaning, which may range from substantive contents of the foreign judgment to procedural fundamentals. The reasons leading to the conclusion as well as the conclusion of the foreign judgment itself should be examined in deciding whether or not the content of the foreign judgment is contrary to public policy or good morals.

A judgment ordering payment of support money should be recognized at least in cases involving foreigners, even if it based on polygamy, in view of the fact that the violation of the principle of monogamy is merely indirect. Public policy means the fundamental principles or ideology of Koreas national legal order and the general sense of morality prevailing in Korean society. The compatibility of a foreign judgment with public policy should be determined by comparing the personal and public interests that might be promoted by recognizing a foreign judgment with the possibility that the national legal order or social ethics may be infringed thereby.

A foreign judgment, the substance of which is not compatible with fundamental principles of Korean law, cannot be recognized in Korea. In determining compatibility with public policy, the factual basis of a judgment, as well as its text, must be taken into consideration. Thus, even a monetary judgment may be held in violation of Korean public policy if the factual basis of such judgment is so illegal or repugnant that the assistance of the Korean courts in implementing the judgment is deemed unacceptable in light of Korean legal philosophy. For example, a judgment ordering the defendant to deliver contraband goods, or a judgment confirming the legality of a concubine is not recognizable in Korea.

Article 17(1) of the Korean Conflict of Laws Act provides that The matrimonial property system shall be governed by the lex patriae of the husband at the time of the marriage. Article 18 of the Korean Conflict of Laws Act provides that Divorce shall be governed by the lex patriae of the husband at the time of the occurrence of the causal facts: Provided that the court may not adjudicate a divorce if the causal facts do not constitute the chief causes for a divorce under the Acts of the Republic of Korea.

Article 23 of the Korean Conflict of Laws Act provides that the duty to support shall be governed by the lex patriae of the person liable to support.

Article 840 of the Korean Civil Act sets forth the bases for a judicial divorce, which are:

1. act of unchastity,

2. malicious desertion,

3. extreme maltreatment,

4. death or life of the spouse is unknown for three years and

5. any other serious cause for making it difficult to continue the marriage. There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).

The Korean judicial divorce is premised on the fault-based system of a contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting divorce to the party at fault goes against the Confucian morality (doei), and it may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.

The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. (Lee, p. 493). In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient and wise.
(e) Reciprocity
It is not necessary that a Korean judgment has been recognized in practice if it is predictable that a Korean judgment will be recognized in light of statutes and legal theories in the foreign country. The conditions of recognition do not have to be identical in Korea and the foreign country. A substantial similarity in important points of the respective requirements should be considered sufficient. The term reciprocity in Section 203 means that the particular foreign country does not inquire into the merits of a Korean judgment by reason of a treaty or its domestic law, and that such foreign country would recognize the validity of a Korean judgment under a standard similar to or more lenient than that of Article 203. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.

Several scholars construe reciprocity to mean that the foreign equivalent of Art. 203 must be either the same or more lenient than the Korean standards for reciprocity. Others argue that the foreign recognition standards not differ in any important respects from the requirements found in Art. 203. Recognition of a foreign divorce judgment becomes impossible, however, if the husbands national law is not applied in a suit in which the divorce defendant is Korean. The only court case to face this issue involved a Nevada ex parte divorce decree granted to a Korean businessman who had previously established a temporary residence in New York. The Supreme Court case 71 Da 1634 on Oct. 22, 1971 refused to recognize the Nevada divorce judgment between two Korean spouses on the ground of reciprocity.

Since the Nevada court granted him a divorce for a reason not available in Korea (noncohabitation), the Supreme Court reasons that giving res judicata effect to the Nevada judgment, and thereby barring the wife’s subsequent suit for divorce for malicious desertion and a monetary settlement, which it was considering, would violate Korean public policy evident in Article 18 of the Law concerning Conflict of Laws. While a foreign divorce judgment may be conclusive as to the question of marital status without application of Article 203, any provisions for payment of support can only be enforced by a suit in exequatur under Article 476. Recourse to exequatur on the foreign judgment will therefore cause Article 203 to become directly applicable, including the reciprocity requirement in Article 203 (4).

In a 1971 case involving the recognition of a divorce decree of a Nevada state court, the Supreme Court of Korea clearly declared its support of the first theory (that is, the theory of same or more generous conditions). However, although the Supreme Court has never expressly admitted that it changed its position on this point, the Supreme Court is generally believed to have changed its position and nowadays to support the second theory since a decision of the Seoul District Court of 1995 which expressly took the second theory was upheld by the Supreme Court. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.

The lower Korean courts have held that there was reciprocity between Korea and the State of New York, Germany, Japan, respectively. However, the Supreme Court of Korea denied the existence of reciprocity between Korea and Australia.

(f) Extent of Recognition/ Enforcement
It is generally accepted in Korea that when a foreign judgment deals with more than one claim, recognition may cover only part of the judgment. It was not clear whether the amount for a judgment for one claim may be recognized only partially in terms of amount. An example is to recognize a judgment for punitive damages only to the extent consistent with the public policy of Korea by reducing the amount of the judgment. However, in a recent case the Supreme Court of Korea upheld the decision of the Seoul District Court which has expressly recognized only 50% of the amount of the foreign judgment.

There is also the question of public policy about a foreign judgment (particularly an American court) awarding so-called punitive damages or excessive damages. Some commentators have argued that Korean courts should refuse to recognize such a foreign judgment since it is inconsistent with the international standards for compensation of damages or, alternatively, Korean courts should reduce the amount of damages to a level comparable to international standards. In this connection, it should also be noted that the Conflict of Laws Act of Korea provides that damages for a tort committed abroad may be awarded in Korea only to the extent allowed under the relevant Korean law (Sec. 13 (3) CLA). In light of this provision, it may also be argued that a foreign judgment awarding damages for an amount greater than the one that may be awarded by a Korean court in a similar case should be regarded to be contrary to the public policy of Korea.

The 1995 case involved the recognition and enforcement of a judgment of the court of the State of Minnesota against the Korean defendant ordering payment of $500,000 as damages (including mental anguish, physical injury, consequent medical expenses, loss of earnings, etc) plus reasonable compensation for damages arising out of the assault and rape of the plaintiff, the Eastern Branch of Seoul District Court found that the amount of award was much higher than would be acceptable under Korean law for such damages and thus reduced the amount of compensation that would be enforceable to $250,000, i.e. 50% of the original amount awarded by the Minnesota court, based upon the rationale that recognition and enforcement of the portion in excess of $250,000 would be against the public policy of Korea. The judgment was upheld by the Supreme Court of Korea in 1997. See Judgment of September 9, 1997 in re 96 Da 47517 Case.

Tuesday, May 17, 2016

Israel: Child Custody in the Religious Courts

Jeremy D. Morley

Below are extracts from a lengthy article on legal problems that arise in Israel from divorce in the ultra-orthodox Jewish community. We have represented several clients in similar matters, especially religious American Jewish clients with children in Israel or who have left Israel with their children. (We usually work as lead counsel in collaboration with local lawyers as appropriate).

I have included some statements in the article that I do not fully agree with.

Politico Magazine

‘They … Do Whatever They Want to Do Towards Women Like Me’

The ultra-Orthodox in Israel are allowed to live by their own rules. Which is why Sara Murray, a U.S. citizen, hasn’t been allowed to see her children freely in 4 years.

March 20, 2016

The full article is available at: 

Once a week, Sara Murray puts on a headscarf to cover her hair, and a billowing shirt and pants to cover her ankles and wrists, and takes a bus to a small public building near the ultra-Orthodox Haredi community where she once lived, before the divorce that changed her life.

There, she checks in with two religious social workers, charged by the rabbinical courts with supervising her visits with her six children, now aged 8 to 18. She tries in every way she can to reach out to the four boys and two girls who’ve been taught that she’s brought shame to their family. When she brings them food, they’re scared to eat it. When she offers them gifts, they refuse to take them.

Murray, who was born in the United States and has joint U.S.-Israeli citizenship, isn’t a criminal. Nor has she engaged in any behavior that would cause her shame in a modern, Westernized society like the United States or Israel. Her only offense was seeking a divorce in an ultra-religious community whose repressive policies, particularly on the role of women, are deeply offensive to most Israelis and other Westerners.

"The government doesn’t stand up to cases like mine because they don’t want to go against the rabbinical court.”

But, for having once joined the Haredi, she can’t break free of its laws. Israel’s government, seeking to appease the ultra-Orthodox parties that now make up a key part of Benjamin Netanyahu’s right-wing coalition, has only empowered its religious courts. And, by both law and treaty, the United States must honor the rulings of Israel’s rabbinical courts whose domain includes marriage and divorce.…

 “They have so much strength to be able to do whatever they want to do towards women like me,” Murray said, referring to Netanyahu’s coalition government and the policies of the ultra-Orthodox that it adopted. “The government doesn’t stand up to cases like mine because they don’t want to go against the rabbinical court.”

Professor Ruth Halperin-Kaddari, a Yale Law School Fulbright Scholar who chairs Israel’s Rackman Center, which advocates for an end to discrimination against women, says that there is clear bias in divorce cases against the non-religious parent within the rabbinical court.

“We know of many stories like [Murray’s],” she said. “There is a phenomena of children being given by the rabbinical courts to the parents who are most observant.”
Naomi Paiss of the New Israel Fund, a U.S.-based non-profit, committed to social change within Israel, agreed.

“They want control of the personal sphere—marriage, divorce, burial,” she said, speaking of the ultra-Orthodox parties. “No matter who you are, your personal life is held hostage to your religion.”

And there’s an extra source of outrage in the fact that the United States, under the Hague treaty governing family law in most advanced countries, is obliged to enforce the judgments of religious courts in Israel; the only exception is for “grave harm” to the child, which rarely gets invoked.

Michael Helfand, associate professor at Pepperdine School of Law and associate director of Jewish Studies, said even American citizens who become involved in groups like the Haredi become subject to their laws.

“There are supposed to be safeguards, and sometimes they don’t seem to be working,” he said, of the protections U.S courts are supposed to impose before rubber-stamping religious agreements. “There are some pretty awful stories out there about parents who are unable to see their children because they left the faith. It pricks your insides out.”

The result of this bifurcated form of governing—part civil, part religious—is an inevitable clash. It is most profoundly seen around issues of marriage. In order for Jewish people to be legally married in Israel, they must do so within the rabbinical—not civil—courts. This applies to all Israelis, whether they consider themselves to be religious or not. As a result, many Israelis—about 17 percent—marry outside of Israel. The marriages are then recognized as legal once they return. It’s a religious work-around.

The religious laws also apply to divorce. Jewish divorce laws are thousands of years old, but are still followed today. In order for a divorce to be recognized, it requires the consent—or the “get”—of the husband. Without that consent, a woman remains in a state of limbo—technically married under religious law, but still estranged from her husband. While most husbands provide the required get, some do not. The women who are caught waiting for their husband’s consent have a name—they are called “agunot,” or chained women.

For Murray, when she eventually decided to leave the Haredim and her husband in 2012, 16 years after her marriage, she was allowed the get. But her decision cost her so much more—her children.

In a 2012 posting on Facebook, the use of which is forbidden by the Haredi, Murray told her story:

“I was shocked when I was prohibited to take my children with me. … They were not allowed to come to my home or spend more than a few hours with me. … They were ashamed of me despite my respective and modest attire during the visits. Food that I gave them they would fear to eat although it followed the consumption laws. Clothes that I bought them they would return even though they were just like the clothing I always bought them. They were forbidden to have a discussion of any sort with me or speak about their feelings. They robotically obeyed.”

Murray’s legal attempts to gain custody of her children proved futile. While she continues to visit her sons as much as she is allowed, her two daughters, whom she has not met with in over three years, no longer want to see her. Murray believes that they have been brainwashed by the adults of the community. Recently, her 8-year-old son told her that when the Messiah comes, she will perish.

"They were ashamed of me despite my respective and modest attire during the visits. ... They were forbidden to have a discussion of any sort with me or speak about their feelings. They robotically obeyed.”

Through translated emails, Murray’s ex-husband, Uri, said he is unable to share the details of his divorce and custody case due to confidentiality issues, and concerns for defamation. However he defended the end result.

“The legal system in Israel acts in the child’s best interest,” he wrote. ”There is no religious consideration here.”

But this, counters Professor Halperin-Kaddari, of the Rackman Center, is a specious argument.

“The huge question is, ‘what is in the best interest of the child?’ If this means spiritually, and in terms of the soul, as perceived by the ultra-Orthodox’s own definition—OK [in their mind] they are telling the truth,” she said.

She also believes that ultra-Orthodox women are choosing to remain in bad marriages for fear of being ostracized and losing the rights to see their children.

“They know the danger, they know the risk, and they make a rational choice to stay within abusive marriages—abusive in many ways,” she said. “For a grounded fear of losing their children, they make that choice—if you can call it a choice.”

For Murray, who now lives an hour from her children, her focus is not on politics—but on trying to hold on to her relationship with her family.

“I’m constantly missing being their mother,” she said. “I’m trying to start over. I’m working now as a waitress in Tel Aviv. But I’m devastated and I don’t know how to go on from here.”

Ironically, she misses the very religious life that pushed her away. “I miss the faith. Having faith like that is very empowering—the feeling that you think you know the code of life,” she said. But with it, she said, came something that she hopes others will not have to live with.

“Families are ripped apart because of religion instead of being brought together,” she said. ”It’s going against everything you devoted yourself to.”

Friday, May 13, 2016

Prenuptial Agreements in India

By ​Jeremy Morley

India has no law on prenuptial or post nuptial agreements. Such agreements are not common in India and are contrary to Indian customs and views about marriage. Nevertheless, the global publicity about celebrity prenuptial agreements is encouraging more affluent people to consider the idea in India.

There appears to be no significant case law in India on the topic of prenups or postnups.  Critically, the Supreme Court of India -- which is vested with extremely broad power to do justice between the parties and which has been quite active in matters concerning the grounds for divorce -- has taken no stand on the matter of prenuptial agreements.

It is therefore essential to understand that while prenuptial agreements might be a valuable way for parties in India to express their intention concerning the nature of their financial relationship, it is not possible to assure -- or even to expect -- that such agreed terms will be upheld in an Indian court.

International clients should also anticipate that prenuptial and post nuptial agreements entered into while they reside outside India will likely not be enforced if either of them should initiate a divorce case in an Indian court.

However, Islamic marriages in India are governed by Muslim law. The Muslim Women (Protection of Rights on Divorce) Act provides for the enforcement of sums due under the contract signed by the parties as their marriage contract (mahr).

Tuesday, May 10, 2016

The Terrifying Reality of International Custody Disputes

By Chen Ximeng 3/27/16

It's been 15 years, but Susan Blumberg-Kason still remembers vividly the sleepless nights after her now-ex-husband, Cai Jun, first threatened to take their infant son Jack back to China. 

Blumberg-Kason, an American, first met Cai in Hong Kong while both were attending graduate school. After a whirlwind courtship, the two married in Cai's hometown in Hubei Province, and several years later moved to California to settle down. By that time, though, the cracks in their marriage had already started to show; in addition to cultural clashes, Cai revealed himself to be abusive.
When, after giving birth to their first and only child, he began making noises about sending him to live with his parents, Blumberg-Kason became terrified that she might lose Jack forever. And so she began divorce proceedings, ultimately escaping the marriage and winning full custody of Jack.
Now a writer, Blumberg-Kason chronicles the ordeal in her 2014 memoir Good Chinese Wife: A Love Affair with China Gone Wrong, and says that, since then, among the most passionate responses she's received are from other people dealing with international custody disputes.
While custody disputes are never pretty, international couples in which one member is Chinese present an especially tricky case - because China hasn't signed the Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty that allows for the expeditious recovery of abducted children, there remains little legal recourse when a child is carried off.
It's not as rare a situation as you might think. According to 2014 statistics reported by iRead Weekly in August 2015, China is now home to 47,000 cross-national marriages, which in turn are showing an increasing rate of divorce.
"Since China hasn't signed the Hague Convention, which protects parents from losing their children to international abduction, foreign parents have no rights to ask for the return of their children if their spouse takes the child to China," Blumberg-Kason said.
No protection under the Hague Convention
Before the Hague Convention, which was signed in 1980 and put into force in 1983, parental kidnapping was a poorly defined concept, with authorities referring to it variously as "legal kidnapping" and "custodial interference." In addition to providing a name for this phenomenon - international child abduction - the treaty drew up guidelines for what constituted violations of custodial rights and provided mechanisms by which children could be returned home, which is defined as the country of "habitual residence." Abduction, meanwhile, is defined as a parent without sole custody taking their child to another country and refusing to return the child or let the other parent visit. To date, 94 countries and regions have joined the convention.
The rub, of course, is that both countries involved must be signatories of the convention in order for it to work. The convention depends on the establishment of central authorities in each signatory country that communicate with one another and with domestic courts to facilitate the return of abducted children to their home countries. Without that, victims of abductions can find themselves dead in the water.
According to Jeremy D. Morley, a New York-based family lawyer and author of The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, this is one reason which makes China an inviting destination for international childhood abduction.
"There is often a legal vacuum that encourages one parent to take children away from the other, and to deprive the children of access to the other parent," Morley says. "It not only hurts foreign parents [if the Chinese partner takes the child to China], it also hurts Chinese parents living in China because if the other parent takes their child to a foreign country from China, the courts in that foreign country are unable to order the child's return to China under the terms of the convention."
Parents' only recourse in situations like this is domestic courts. Beijing-based family lawyer Li Peixuan, who's been dealing with international divorce cases, many involving custody, for 15 years, recalls one case involving a Chinese woman, Zhang Ya, her British ex-husband Matthew and their son, Rick (all pseudonyms).
After divorcing in 2009, Zhang moved to Malaysia for two years to work while Matthew remained in Beijing, but the two established an agreement by which Rick would stay with his mother for the first year and then return to Beijing to live with Matthew for the second. When the time came, however, Zhang refused to let Rick return, and Matthew decided to file a lawsuit against her for international child abduction.
"As China is not a signatory of the Hague Convention, Matthew would have faced a lot of challenges in terms of procedures and execution," said Li, who represented Zhang. "This is the kind of case that could have dragged on for years, even until Rick was grown up."
In the end, Matthew and Zhang were able to avoid litigation by making a new compromise, under which Rick would remain in Malaysia, but Matthew could visit and bring him back for holidays.
According to Li, the other major complication is the fact that custody rights are defined differently in China than they are in other countries.
In China, joint custody effectively doesn't exist; instead one parent is awarded sole custody, which not only means that the child lives with them, but that they have the right to make all important decisions related to the child's well-being. By contrast, in most Western countries, even if one parent is awarded sole custody, he or she must still consult the other parent when it comes to major decisions related to the child.   
Different approaches to negotiation
Cultural differences may not only have a bearing on the success or failure of a marriage - they can affect the outcome of custody cases as well.
Li believes that this was key in the escalating tensions between Zhang and Matthew. While Zhang wanted to negotiate the problem, Matthew immediately opted for legal action, hiring three lawyers and informing the British Embassy of the situation.
"This kind of cultural difference between Chinese and Britons was one of the major reasons for their dispute," Li said. "In China, there's much more of a tradition of solving things through negotiation before resorting to legal action, while Britons hold firmly to the importance of contracts."
Blumberg-Kason agrees that many disputes in international divorces arise from cultural differences.
This was a source of conflict in her own marriage - Cai wanted to send their son back to his hometown to live with his parents, an idea that Blumberg-Kason couldn't bear.
"This isn't an American custom," she said. "Americans live with their children and don't send their children away to live with their grandparents. I felt if that happened to me, I would miss my son very much."
Where to go from here?
According to Yang Xiaolin, a lawyer who specializes in family law and a partner at Beijing Yuecheng Law Firm, one of the biggest reasons why China hasn't signed the Hague Convention is that the legal terms required to enforce it are not sufficiently defined in Chinese law.
"In our judicial system, there are no clear laws governing joint custody," Yang says. "We focus more on custody by one parent. So there is a conflict between joint and sole custody. If we sign the convention, it will conflict with the current laws. So first we need to build a system and regulations for joint custody."
He said that he hopes China will eventually sign the convention, but added that officials from the Ministry of Foreign Affairs recently said that such a move is not imminent.
So where does that leave mixed Chinese-foreign ex-couples? Li suggests that both sides should start out by educating themselves on the laws of both their countries. Which laws apply, Li says, depends on the child's nationality.
"If your child has Chinese nationality, you should go to Chinese courts for a lawsuit, but if he or she is of foreign nationality, you should go to the court of that country, the laws of which may be quite different," she said.
Li added that foreigners shouldn't be afraid of any bias against them in Chinese courts; the courts' only "bias" is toward protecting the custodial rights of women. With very young children, for example, mothers almost always get custody.
They should also, she said, be prepared for the difficulties involved with enforcing any judgment.
One example is the widely publicized divorce case of American Kim Lee from her ex-husband Li Yang, the founder of famed English-teaching method "Crazy English." After a very public divorce following allegations of physical abuse, Lee was awarded full custody of the couple's three daughters; Li, meanwhile was ordered to pay 100,000 yuan ($15,350) of alimony for each child every year until they turn 18. But after giving them an initial 150,000 yuan in 2013, Li stopped paying, according to a Beijing News report in 2014. 
Likewise, Blumberg-Kason says that a law professor in California once told her that even countries that have signed the Hague Convention often don't comply with it, and cases can take 10-15 years to resolve, by which time the children are already teenagers. "Mutual respect of differences and negotiation are the best way." 
She said she knows other divorced international couples in which one spouse lives in China. The kids live overseas with one parent during the school year and go to China to see the other parent in the summers.
"It works because the former spouses respect one another, maintain a good relationship, and put their children first," Blumberg-Kason said. "If people can get to that point, it can work out very well."

Thursday, May 05, 2016

Malaysia and International Child Abduction

(updated May 5, 2016)

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 now been pending for about seven years. In that case, the father converted himself and his children to Islam, unilaterally removed the youngest child 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. In April 2016 the Federal Court ordered the national police chief to arrest the father for contempt of court over his refusal to hand custody of the child. However, the presiding judge said the police chief’s inaction on the recovery order was excusable as there were conflicting custody orders from the Shariah and civil courts. Meanwhile the child remains with the father.

Monday, May 02, 2016

How to Win a Hague Convention Child Abduction Case

This article was published in the May 2016 issue of "The Matrimonial Strategist"

by Jeremy D. Morley

Author of The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, published by the American Bar Association.

Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.

In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.


An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.

Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.

Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.

Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.

When left-behind parents complete the initial Hague application without experienced input from an experienced international family attorney they often make mistakes, which are sometimes irreversible.

Counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child. On the other hand, such notice might be counter-productive if there is a suspicion that the taking parent might hide the child.

Counsel must decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. If a state court is chosen the respondent has the absolute right to remove the case to the federal court. Choosing the right court can make all the difference in a Hague case.

Counsel might enlist the support of the U.S. State Department's Office of Children's Issues. Such support may be particularly helpful to locate the child. It might also be useful if the left-behind parent seeks a U.S. visa to enter the United States in order to attend the trial. However, the State Department does not handle Hague litigation and does not represent left-behind parents.

Counsel might also suggest that, if there is no custody order in place from a court in the jurisdiction of the habitual residence, the left-behind parent should perhaps institute civil proceedings in those courts for such an order (or perhaps for a modification of the original order). However, this should not be undertaken without U.S. counsel conferring with counsel in the other country.  


If a child has been abducted to the United States, proceeding under the Hague Convention might not be the best course of action. All U.S. states have adopted the Uniform Child Custody Jurisdiction & Enforcement Act (except Massachusetts which has adopted a prior uniform law). That Act provides remedies that may be far more useful than those provided under the Hague Convention. You need to consult with a lawyer who understands the issues and who can put you on the right track.  Abduction cases in the U.S. requires a complete understanding of international child custody law in general and of the relationship between the Hague Convention and the Uniform Child Custody Jurisdiction & Enforcement Act in particular.     


The International Child Abduction Remedies Act expressly authorizes the state or federal court handling a Hague case to order “provisional remedies” to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition. 

Such an order should invariably be sought to keep the child in the jurisdiction pending the hearing of the Hague petition but a left-behind parent will also want to secure interim access to the child.


Hague Convention cases are often extremely fact-intensive. They frequently hinge on the ability of one party to convince the court of matters such as the habitual residence of a child (which hinges in large part in most but not all circuits on the last shared intention of the parents); the nature of the left-behind parent’s custody rights under the foreign law (which may require expert evidence as to the terms of the foreign law); the extent to which a parent actually exercised custody rights; whether or not a parent consented to or acquiesced in a new residency; whether such consent or acquiescence was conditional; whether the child has become well settled in the new environment; whether the child was physically or psychologically abused; whether the taking parent was abused in such a way that there was an impact of the child; whether the authorities in the foreign country provided adequate protection to the children and the taking parent in the past or could do so in the future; the age and maturity level of the child, whether and why the child objects to being returned. For a court to resolve these matters it must analyze the relevant facts.

A successful Hague proceeding requires the attorney, working closely with the client, to marshal as much evidence as possible, in as many forms as possible, to support the client's position. Clients are frequently shocked that matters that to them are obvious and indisputable turn out to be disputed and to require them to produce clear and convincing proof. They may well be insulted that their word alone is insufficient to convince the court that they are truthful and that the other parent is lying.

In one case, the parents had moved permanently with their young child from the mother's native country to the U.S. Two years later, the mother took the child back to her country for a vacation and then refused to return to the States. In supporting her claim that the child was never habitually resident in the States she claimed that the original move to America had been only temporary and that she and the father had agreed that they would return to the mother's native country after a year or two. The mother had planned the move well in advance and had amassed -- and even created -- evidence that tended to support her claims. Additionally, she had removed evidence from the parties' home that would have disproved her claims.

To win the case, we interviewed neighbors, friends, family members, schoolteachers, real estate salespeople, fellow office workers and an array of other people who had had some connection with the family. We checked into any and all areas of the mother's life for anything that might indicate her intention to stay in the States. We obtained emails, notes, invoices, and other documents. We searched old household bills for evidence of the purchase of items that inferred a degree of permanency. At the hearing, the mother was shocked that her husband had collected so much written evidence to disprove her claims and undercut her credibility. The courts ultimately -- and with great reluctance, since they were going against a local national -- found in favor of our client.

Since Hague cases are tried quickly, there is usually only one chance to present the case and it needs to be done well at the very outset. An attorney must embark on a quick campaign of collecting mounds of relevant evidence to support the client's positions, and must expect the other parent to lie, cheat, and distort the facts in a desperate attempt to avoid losing the case.

Just as a current military strategy is to employ overwhelming force to create shock and awe, so too in a Hague Convention case it is often advisable to use overwhelming amounts of evidence to win the case. Such a campaign in a Hague proceeding may yield a capitulation by the other parent even before the hearing actually commences.

Hague Convention hearings sometimes take the form of "he said, she said" disputes in which each side makes verbal accusations against the other. Documentary evidence is usually far better than the mere word of one parent. Thus, if you want to claim that a parent applied for an immigration visa, you must be prepared to do more than simply have the parent tell the court that this was done. You should do whatever you can to get hold of the actual application papers that the parent signed in applying for the visa, which may mean contacting the lawyer who handled the immigration matter originally.

Emails and text messages can be invaluable sources of critical evidence, especially concerning the parents’ intentions and agreements.

While it is helpful if documents are supported by sworn statements, it is not essential. Both the Convention and the International Child Abduction Remedies Act provide that authentication of documents is not required in a Convention proceeding.


Discovery is generally permitted in Hague cases but it must be balanced against the requirement that Hague cases should be concluded quickly. It is essential to decide at the outset of a case whether discovery is really needed because it should be requested at the time of the initial meeting with the court or otherwise it might be waived. These decisions should absolutely not be made by inexperienced counsel.


Hague Convention cases raise unusual international law, foreign law and treaty law questions. They involve the courts in matters of a kind that they are usually not used to handling. In many jurisdictions the court may be entirely unfamiliar with Hague cases. The key terms in the Convention are ambiguous and either completely or mostly undefined. One might at first glance expect that straightforward terms such as “habitual residence,” “rights of custody,” and even “grave risk” might be easy to apply in a consistent manner. That has proven not to be the case. The key terms have been subjected to a cascade of judicial interpretation in the United States, which has sometimes been contradictory and often confusing.

Accordingly it is usually essential for the lawyers to help the court to an unusual extent. Certainly a well-reasoned memorandum of law is essential.

The matters in dispute in most Hague cases raise difficult legal issues that must be thoroughly briefed. Thus, the Convention requires the left-behind parent to establish that the child was taken from the "habitual residence" and that the parent had "rights of custody" under the law of that jurisdiction. However, neither of those fundamental terms is defined in the Convention and substantial jurisprudence has grown domestically and internationally setting forth often-contradictory determinations concerning their scope and meaning.

Courts have held that, while they must determine under international law whether the left-behind parent possesses Hague Convention "custody rights," they must first examine the law of the child's habitual residence in order to ascertain the extent of the rights that such parent possesses under that law. In this regard, it is often essential to use foreign law experts to establish the existence and scope of such rights.

A Hague Convention attorney may, and often should, cite cases not only from the domestic jurisdiction but also from other jurisdictions if they support the client's position. It has become more usual to cite cases from other jurisdictions in this area of the law than perhaps in any other. Courts around the world recognize that it is best to coordinate their decisions with those of other courts internationally and, for that very reason, the Hague Conference on Private International Law has established a database of significant Hague cases from courts around the world.


In representing the left-behind parent in a Hague proceeding, it is necessary to keep the court focused on the narrow issues that the Convention requires an applicant to establish and the narrow defenses that a respondent can assert. Whenever the hearing strays into any areas that might be considered as constituting an analysis of the child's best interests, the other party (usually the petitioner) should vehemently object.

However, a party opposing a return should do his or her utmost to assert any and all relevant issues under the rubric of one of the defenses specified in the Convention and should be armed with case law to establish that similar claims were permitted in other cases.

The exceptions to the Convention provide to a significant extent that the court has a discretion as to whether or not to order the child’s return to the habitual residence. This opens the door to a certain extent to a consideration of what is best for the child in the circumstances but the relevant factors do not rise tot eh level of a full best interests analysis.


In Hague cases evidence rules may be somewhat relaxed, so evidence should be submitted in any possible format. Live testimony is invariably the best and normally everything should be done to get the left-behind parent into the courtroom. (An exception is if that parent would be a poor witness and his or her presence would create an opportunity for embarrassing cross-examination).

If a witness cannot be brought to the courthouse, consider testimony by video conferencing or otherwise by telephone conference. As a last resort, submit affidavits. However, a judge may or may not permit such testimony and it is important to resolve such issues with the court at the earliest possible stage.


Hague Convention cases happen too fast, and too much is at stake for the client, for an attorney to learn about this area of law at the last minute. It is extremely important to locate counsel with knowledge and experience in Hague proceedings. It is also frequently valuable for a client whose child has been abducted to retain a lawyer in his or her home country who can coordinate with the Hague counsel in the country to which the child has been taken.  

Many experienced Hague lawyers will assist local lawyers in handling Hague cases, and very often such teamwork is the best way forward.