Wednesday, November 30, 2016
Jeremy D. Morley
Philippines’ law criminalizes adultery and concubinage. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code.
The law discriminates against wives. The crime of adultery can be committed only by a wife and her paramour. The husband need only prove that his wife had sexual intercourse with a man other than him.
The crime of concubinage can be committed only by a husband and his concubine, but it requires that the wife must prove that her husband has kept a mistress in the conjugal dwelling, or has had sexual intercourse under “scandalous circumstances” or lived together with his mistress in any other place.
The penalties are also quite different. For adultery the guilty wife and her paramour may be imprisoned for up to 6 years
For concubinage, the husband may be imprisoned for up to 4 years and 1 day, while his concubine may be merely “banished” but may not be imprisoned.
The laws work to the great disadvantage of women. There is no divorce in the Philippines and abandoned wives are often accused of adultery in order to force them to agree to their husband’s petitions to nullify the marriage. The Philippine Commission on Women reports that, “In many cases, women who are faced by these threats are forced to forego legitimate custodial claims of their children while some are forced to give up their claims over conjugal properties, assets and the like.”
Thursday, November 17, 2016
Jeremy D. Morley
The Singapore Family Court, in a ruling by District Judge Low, has rendered a ruling on consent in Hague abduction cases. The Court issued the following determination*:
“In summary, the legal principles in relation to consent that may be gleaned from the abovementioned cases are as follows:
-Consent is not relevant to Art. 3 but to establish a defense under Art. 13(a), i.e. if a child is removed in prima facie breach of a right of custody, the removing parent has the burden of proof to justify the removal and establish that the removal was done with consent;
-Consent must be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent. If the court is left uncertain, then the defense under Art. 13(a) fails;
-The consent must be for a stay of sufficient duration or quality properly to be regarded as habitual and where the consent had been given for a purpose which has changed, the parent must have agreed to the continued stay based on the new purpose;
-If there is ostensible consent and the party seeking the return of the child alleges that there are circumstances vitiating the consent, it is for that party making that claim to prove it on the balance of the probabilities;
-Proof of deceit or dishonesty in relation to a marital aspect of the consent, going to the root of the consent, is one such circumstance that would vitiate a consent outwardly given; and
-The court should, in summary proceedings such as Hague applications, be cautious about finding dishonest conduct without having enjoyed the advantage of hearing oral evidence.”
*Together with eminent Singapore counsel, Jeremy D. Morley assisted the successful defendant.
Tuesday, November 15, 2016
We have handled, with local counsel, several international family law matters concerning Slovenia.
We have provided an expert report concerning the possibility of child abduction to Slovenia and issues concerning the return of children from that country.
Appeals in Hague cases in Slovenia are permitted without leave of the Court and the effect of such an appeal is to automatically suspend any return or access order pending an appeal. There is no procedure in Slovenia for an expedited procedure or special process of appeal in a Hague Convention case.
In one reported case a Slovenian father brought proceedings before the Slovenian authorities after his daughter’s mother moved the child to Austria and obtained a contact order but the mother successfully appealed that order. Following the remittal of the case and a number of delays due to the authorities’ inability to locate the mother, the Slovenian court eventually issued an interim order and he eventually saw her for the first time in more than nine years. However, his daughter subsequently refused to see him again and an Austrian court suspended the father’s contact rights in a decision. The European Court of Human Rights ultimately ruled that Slovenia had violated Article 8 of the European Convention on Human Rights concerning respect for private and family life.
Monday, November 14, 2016
Jeremy D. Morley
When I was in India in early September there was great hope among the legal community that India would move forward to join the community of nations in acceding to the Hague Convention on the Civil Aspects of International Child Abduction. Those hopes were dashed by the recent announcement by India’s Women and Child Development Ministry that, “We are very clear that we are not signing the Hague Convention.” India’s status as one of the world’s most significant havens for international child abduction will apparently continue unabated.
In 2009 the Law Commission of India issued a report entitled, “Need to Accede to the Hague Convention on the Civil Aspects of International Child Abduction.” At the time, the recommendation that India should sign the Convention seemed to fall on deaf ears. Meanwhile foreign criticism of India for not returning internationally abducted children grew, especially from the United States and the U.K. Indeed, the U.S. State Department determined that India “demonstrated a pattern of noncompliance by persistently failing to work with the United States to resolve abduction cases.” As a result, the U.S. Government issued a formal diplomatic protest--a demarche--to India in May 2015 (and again in July 2016).
A sign of progress occurred in February 2016 when the High Court of Punjab and Haryana formally asked the Law Commission of India to examine whether to issue a recommendation “for enacting a suitable law for signing the Hague Convention.” The Government of India then published a draft of a proposed “Civil Aspects of International Child Abduction Bill 2016,” and in July it placed the Bill on the website of the Women and Child Development Ministry. In October the Law Commission issued a new report in which it recommended that India sign the Convention and that certain amendments to the proposed bill should be enacted.
And then everything ground to an apparent halt. The Minister of Women and Child Development stated that acceding to the Convention would not be in the interest of aggrieved women “who have been abandoned by their husbands abroad, had their passports snatched from them, been beaten up, and have somehow scraped the money and are in terrible fear, I wonder whether we should join or not.” Furthermore, she said that there are fewer instances of Indian children being abducted and taken abroad than of children being abducted to India. The Indian press is reporting that the proposed bill is likely to be “junked.”
This decision, if maintained, will put Indian nationals and persons of Indian origin living outside India at a tremendous disadvantage. Courts in the United States will likely not permit then to take children for family visits to India if the other parent objects because the Indian legal system can certainly not be counted on to return the children if they are retained in India. It means that winning international relocation cases to India will likely be far more difficult than is the case currently. And it means that desperate India mothers (and men) who take their children to India over the objections of the other parent will be committing a serious felony under U.S. law and will likely be unable to leave India because of fear that they will arrested once an Interpol notice is circulated.
It is to be hoped that the Indian Government reconsiders what appears to be a most short-sighted decision.
Wednesday, November 09, 2016
Jeremy D. Morley has submitted expert evidence to a court in California that Pakistan does not comply with international norms concerning the return of internationally abducted children and that Pakistan is justifiably well-recognized as being a safe haven for international child abductors.
The opinion resulted in a court order that did not merely bar all travel by one of the parents with the children outside a local geographical area but also required that all visitation with the children by that parent must be supervised at all times.
Mr. Morley provided an evaluation of the risk factors as to potential international child abduction, the application of the factors to the facts of the pending case and to the balance that must be considered between the risk of abduction presented by the facts concerning a specific parent and the risk that is presented by a specific country.
The more certain it is that the country to which the child might be taken is a fully compliant Hague Abduction Convention treaty partner with an effective legal system, the more evidence is required that the individual parent is likely to be an abductor in order to justify the imposition of strong international abduction prevention measures. With respect to Pakistan, not only has that country failed to accede to the Convention but it is non-compliant with basic international norms concerning international child abduction, to the extent that the Government of the United States has deemed it necessary to issue formal diplomatic protests the Government of Pakistan.
Monday, November 07, 2016
New York’s appellate departments are now unified with respect to their interpretation of Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). The issue of whether Article 10(a) of the Hague Convention permits service of process by mail to a foreign country in the absence of an objection from the state of destination has now been resolved in New York. The First Department in Mutual Benefits Offshore Fund v. Zeltser, 2016 N.Y. Slip Op. 04344, earlier this year reversed itself and joined the state’s three other appellate departments in holding that service of process by mail under those circumstances was indeed permissible.
For those unfamiliar with the workings of the Hague Service Convention, it is a multilateral international treaty first adopted in 1965 that allows for the service of process of legal documents from one signatory state to another without the use of more formal consular or diplomatic channels. The treaty sets up a simplified means for accomplishing service of process by requiring each signatory nation to designate a “Central Authority” to receive the documents and arrange for actual service on the targeted entity in a manner permitted under local law. Once service is completed, the Central Authority sends proof of service to the requesting party. The advantages of this system lie in its speed, its standardized forms and its relatively low costs as compared with the pre−Hague Convention methods in place to serve foreign entities. Seventy countries are now parties to the agreement.
The language of the Hague Convention treaty that beguiled New York’s appellate courts and, over the years, courts throughout the country is that found in Article 10(a) of the treaty. It reads:
Provided the State of designation does not object, the present convention shall not interfere with
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.
(a) the freedom to send judicial documents, by postal channels, directly to persons abroad.
Some American courts, including the First Department in cases before Zeltser (see, e.g., Sardanis v. Sumitomo Corp., 279 AD 2d 225, 718 N.Y. S. 2d 66, 2001), had taken the position that the Hague Convention’s use of the phrase “to send judicial documents” as opposed to the phrase “to serve” meant that mail service of items such as discovery demands, notices and other legal documents was permitted only after the initial service of process for jurisdictional purposes (i.e., service of a Complaint or Petition for Damages) is made through the Central Authority. BeforeZeltser, the other appellate departments in New York (the Second, Third and Fourth Departments) along with many other courts around the country had held otherwise. Their rationale was that the Hague Convention’s drafters’ use of the word “send” was the result of poor draftsmanship and that initial mail service of the jurisdictional document was permitted so long as the destination country had not objected under Article 10(a).
Summary & Analysis
As a result of Zeltser, New York’s First Department joined the chorus of jurisdictions permitting mail service. It is now clear in New York that, where the destination state has not expressly objected to service by mail, there is no need to follow the Hague Convention’s requirements for service through a Central Authority and that service in those cases by “ordinary” CPLR means (i.e., through postal channels) is permissible.
The entire “serve” versus “send” controversy begs the obvious question: Why would a country sign onto the Hague Convention treaty and then fail to object to Article 10(a) and, in so doing, expose its citizens to ordinary mail service? Doesn’t Article 10(a) become the proverbial “exception that swallows the rule” if, in fact, it is interpreted in a way that there is no distinction made between the words “send” and “serve”? Perhaps, but recall that there are other features of the Hague Convention that remain in play – such as the need to translate the legal documents into the language of the destination country before service is accomplished. If that “service” is done by ordinary postal channels because the destination country has not objected to Article 10(a), the documents must arguably still be translated before they are dropped in the mailbox.
Let’s agree that’s better than nothing.