Japanese Supreme Court Upholds Refusal to Return Abducted Children

                           by Jeremy D. Morley

By decision dated December 21, 2017 the Supreme Court of Japan has upheld the decision of the Osaka High Court to dismiss the petition under The Hague Abduction Convention to return four children who were abducted to Japan by their Japanese mother from their home in Minnesota in 2014, where they were born and had always lived.

I have previously discussed the case in detail and have explained that it supports the claim that the Hague Abduction Convention is fundamentally unworkable in Japan. See my article at:

 www.internationalfamilylawfirm.com/2017/02/japanese-violation-of-hague-abduction.html?m=1

Nonetheless there was some hope that the Supreme Court would correct the problem, at least for the four children in question and their left-behind father. However, the Court has now dismissed the appeal and has ordered that the children will not be returned to the United States.

I will provide an analysis of the ruling shortly.  

International Prenuptial Agreements for “Mail Order Brides”

by Jeremy D. Morley

International prenuptial agreements – meaning prenuptial agreements between people who are from different countries or who might relocate to another country – are always tricky because they raise issues about two or more different legal systems and two or more different cultures.  They generally require expert input from lawyers with substantial experience in international matters, especially international prenuptial agreements.

Such agreements are most especially difficult – and precarious – if between wealthy and older men and younger and impoverished foreign brides. 

Two very recent cases – one in Australia and the other in New Hampshire, USA – exemplify the danger. 

In the New Hampshire case, my client, from Ivanovo, Russia, the famous “city of brides,” met her husband, a wealthy and substantially older New Hampshire businessman, through a Russian Bride’s website. The Court found that she was living in harsh conditions in Russia, had few assets, and was desperate to leave. She quit her job in Russia soon after they met (due to a request by her future husband). He then paid her modest support until she was able to move to join him in the United States, obtained a fiancée visa for her, and booked her flight to the States. About two weeks before the date of her move to live in New Hampshire he sent an English version of a proposed prenuptial agreement to her (even though her English language skills were rudimentary at that time), which was drafted by his New Hampshire lawyer. She received a version translated into Russian just a few days before the flight and about a week after she arrived in New Hampshire she went with her fiancé to his lawyer’s office, where she signed the one-sided agreement. She did so without any legal advice and with little or no awareness of what she was agreeing to.

The Court found that “the enforcement of the Prenuptial Agreement, under these circumstances, would be so unfair as to shock the conscience of the Court” and it must be invalidated because of its unconscionability.

In the Australian case, Thorne v. Kennedy, the parties (identified by pseudonyms) met online. Ms. Thorne, an Eastern European woman then aged 36, was living overseas and had no substantial assets. Mr. Kennedy, then aged 67, was a wealthy Australian property developer. A few months after they met online, Ms. Thorne moved to Australia to marry Mr. Kennedy. About 11 days before their wedding, Mr. Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. Ms. Thorne was represented by an independent solicitor who advised her that the agreement was drafted solely to protect Mr. Kennedy's interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr. Kennedy for all things and believed that she had no choice but to enter the agreement. She signed the agreement four days before their wedding. It contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms, and therefore a post-nuptial agreement substantially identical to the pre-nuptial agreement was signed.

The case ultimately went to the High Court of Australia, the supreme court in that country. It upheld the trial court’s decision that the agreements should not be enforced but with a slightly different rationale.  The trial judge had determined that the agreements were invalid for having been signed under duress. The High Court held that the more apparent basis for setting aside the agreements was that the husband had engaged in unconscionable conduct. A majority of the judges also held that the agreements should be set aside on the grounds of “undue influence,” which was preferable to the trial judge’s characterization as “duress.” 

The two cases make it abundantly clear that special factors arise in international prenuptial agreement cases where there is a clear difference in the power positions of the respective parties. An appropriate motto might be, “Old Rich Western Guys Beware.” A better motto is “Follow the Advice of an Experienced International Family Lawyer.”

SLOVAK VIOLATION OF HAGUE ABDUCTION CONVENTION: Using Court Delays and other Judicial Devices to Block the Return of Abducted Children

by Jeremy Morley 

It is of the essence of the Hague Abduction Convention that cases brought under it should be handled and concluded expeditiously. The target of six weeks set forth in the Convention itself is made even more specific in the Brussels II bis Regulation governing abductions within the European Union. Unfortunately, lengthy judicial delays often occur, sometimes by reason of the abductor’s strategic litigation ploys and in some cases because of courts are overburdened or possibly negligent.

In some such cases the judicial delays then provide the purported basis for courts to overturn prior orders that children should be returned to the countries from which they were abducted.

That occurred in the infamous decision of the Osaka High Court earlier this year in the case of Arimitsu v. Cook. In that four children were abducted to Japan from Texas in 2014. The Osaka Court ruled in 2016 that the children should be returned. The authorities then failed and refused to implement the court order, and the Osaka court ultimately overturned the return order on the ground that circumstances had meanwhile changed sufficiently to require it to do so. See my article, Japanese Violation of the Hague Abduction Convention.

For similar reasons, the European Court of Human Rights has just ruled in the case of Mansour v. Slovakia (judgment dated November 21, 2017) that the Slovak Republic violated a left-behind father’s human rights in failing to return children abducted from Ireland.

The parties, both Slovak nationals, lived throughout their marriage in Ireland, where their two children were born and always lived. The mother took the children to the Slovak Republic in early 2011 and refused to return them. The father promptly brought suit under the Brussels II bis Regulation and the Hague Convention and succeeded in winning a return order from the Bratislava I District Court and after the mother’s appeal from the Bratislava Regional Court. The return order was enforceable in July 2011, but it was never enforced. 

The father applied for judicial enforcement of the order in February 2012, but the proceedings were stayed because the mother had lodged a request – ultimately unsuccessful - with the Prosecutor General for an extraordinary appeal against the order. 

A series of further appeals and litigation claims were then made by the mother. The mother had commenced proceedings for custody of the children in the Slovak Republic and an interim order issued in that case provided the pretext for another District Court to overturn the return order. The father applied to the Constitutional Court to reinstate the return order and that Court ultimately ruled in 2014 that the father’s rights had been arbitrarily and improperly violated by the District Court’s decision.

Thereafter the enforcement proceedings resumed before the Regional Court, which heard the case in August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, regarding the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health, and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination.

In April 2016 the District Court again declared that enforcement of the order was impermissible. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from a court-appointed guardian about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia (where they had been residing since January 2011), and the applicant’s lack of contact with them while in Slovakia.

The father then brought another case to the Constitutional Court which ultimately ruled that the father’s rights had again been violated. It found that the District Court had proceeded with the matter for more than four years (inefficiently) and that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decision-making that was in accordance with international standards.

Further extensive court proceedings then elapsed in the Slovak Republic, but to no avail - the children are apparently still in the Slovak Republic, where they will presumably remain.

For obvious reasons, the European Court has now ruled that the Slovak Republic’s conduct has been deficient and in violation of human rights. It has held that, “The enforcement courts, by a wrongful application of the substantive law and because of the excessive length of the proceedings, which moreover took place in a legal framework allowing for the use in a problematic way of an extraordinary remedy, enabled the issue of the return of the applicant’s children to the country of their habitual residence effectively to be resolved in an unendorsed and unsupervised way by the passage of time, rather than by a judicial decision.”

Unfortunately, the European Court had no power to order a return of the children. All it could do was to issue a judgment that determines that a violation of the European Convention on Human Rights had occurred and to order the Slovak Republic to pay some nominal funds to the father.

Thus, although the legal systems of the Slovak Republic and the European Court devoted a massive amount of resources to the case, a totally unjust result ensued. Indeed, the Slovak legal system was itself a key actor in a successful scheme to retain abducted children in the Slovak Republic in violation of the Hague Convention as well as the E.U. Regulation in violation of the fundamental rights of children to be with their father and of a father to be with his children. 

Indian Supreme Court Rules that Indian Family Life is Better

                                                                                         Jeremy D. Morley

Upon re-reading the recent decision of the Supreme Court of India in Gupta v. Gupta -- which endorsed a father’s abduction of a child from the United States to India on the primary basis that the child had been living in India since the abduction for 2½ years while the judicial proceedings were pending in India (see my article at http://www.internationalfamilylawfirm.com/2017/12/supreme-court-of-india-endorses.html) it is most disconcerting to read that the Supreme Court seemingly ruled that Indian family life is inherently superior to family life in the United States. 

Specifically, Justice Amitava Roy explained the Court’s decision that the child should remain in India with the father’s family by stating, in part, that, 

“As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” 

Thus, in a judgment that is presumptively binding in child custody cases on all lower courts in India, the Indian Supreme Court appears to have ruled that it is inherently preferable for a child to live in India with a loving extended family than for that child to live in the United States with his loving mother (upon whom no negative aspersions were cast in the judgment) and his younger brother. 

Supreme Court of India Endorses International Child Abduction

by Jeremy D. Morley

The Supreme Court of India has just issued a final judgment, dated December 6, 2017, in a case entitled Gupta v. Gupta, in which, in my opinion, the Court expressly endorsed international child abduction. Although the child’s left-behind mother had applied for habeas corpus promptly after her husband abducted the child from Virginia, USA, 2½ years then elapsed before the Supreme Court finally ruled on the case. Relying on that passage of time, during which it presumed that the child had become settled in India, it ruled that it was in the best interests of the child to stay in India in the sole custody of his father.  

The facts as stated by the Court are as follows: The parties were of Indian origin and had married in India in 2010 but they had lived throughout their marriage in Virginia, USA. Their two children were both born in Virginia and had always lived in Virginia. They were U.S. citizens. The parents separated in 2014 in Virginia, with the children remaining with the mother in the marital residence. The father then employed what the Supreme Court described as “a nefarious strategy” to abduct the older child to India in early 2015. 

The mother promptly filed an emergency motion in a Virginia court and obtained a temporary order giving sole custody of the child to her and ordering that the child be returned forthwith to Virginia.

A few days later, the father started a custody case in the High Court in New Delhi. The mother promptly appeared in that case and applied for a writ of habeas corpus to deliver the child to her so that she could return him to the USA. Almost a full year later, the High Court ruled in favor of the mother on the ground that the judicial comity required it to respect the right of the courts in the USA to make decisions concerning the welfare of the child. 

The father appealed to the Supreme Court which permitted the child to remain in India pending the determination of the appeal. After more than 1½ years, the Supreme Court of India finally issued its ruling. It held that the child should stay in India in the sole custody of the father. 

The basis of its decision was that the child had been in India for the previous 2½ years with his father and that the High Court ruling was not based on a plenary evaluation of the child’s best interests.  The Court ruled that since the father was “the biological father” of the child, “his custody of the child can by no means in law be construed as illegal or unlawful” (even though the father’s conduct as described in the judgment was apparently felonious under U.S. federal law (18 U.S.C. 1204)).

The Court determined that “there is no convincing material on record that the continuation of the child in the company and custody of the [father] in India would be irreparably prejudicial to him.”

The child was apparently in a congenial environment in the loving company of his grand-parents and other relatives in India, was in a reputed school “and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.” While a court has the power to return a child summarily, “immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise.” Here, “a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years.” It was therefore “imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.”

It ultimately ruled that the child ought to continue in the sole custody, charge and care of the father. It made no provision for any sharing of custodial responsibility and no provision for any access by the mother, whether in India or in the USA.

The ruling should serve as an extremely strong warning to potentially left-behind parents around the world that India is a safe haven for international child abduction.

Repost: The New Divorce by Mutual Consent in France...

We're reposting this article here since it's just recently been published in the NYSBA Family Law Review, Fall 2017, Vol. 49, No. 2:

The New Divorce by Mutual Consent in France: Recognition and Risks of Post-Divorce Litigation in Common-Law Countries: The Examples of England and the United States

Delphine Eskenazi, admitted to the Paris and New York bars, LIBRA Avocats, Carmel Brown, Solicitor in England, Irwin Mitchell and Jeremy D. Morley, admitted to the New York bar, Law Firm of Jeremy D. Morley consider the new divorce by Mutual Consent in France and its wider implications for other countries.

Since 1st January 2017, French divorce law has been the subject of an historic reform: in the event of a global settlement between the spouses, their divorce agreement is no longer reviewed and approved in Court by a French judge. 

The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce. 

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislature, with a blatant disregard for the high proportion of divorces with an international component in France. 

In particular, the most important risk of this reform is that the French divorce by mutual consent may not be recognized or enforced in many foreign countries, in particular common law countries, thus significantly multiplying the risks of post-divorce litigation. From an amicable divorce to an acrimonious post-divorce, the possibilities to re-litigate have increased significantly with this new French administrative divorce. 

Carmel Brown, a solicitor practising in England, and Jeremy Morley, a lawyer practising in the United States, consider these issues of recognition and post-divorce litigation, following a French administrative divorce, in their respective countries of practice. Delphine Eskenazi, a lawyer practising in France (also admitted to practise in New York), presents first the main provisions of this new French administrative divorce by mutual consent. 

I. What is the New French Divorce by Mutual Consent? 

A. The Lack of Control or Involvement of the French Courts

In accordance with the new article 229 of the French Civil Code, spouses who agree on the principle of the dissolution of their marriage as well as on all the consequences of such dissolution, may record their agreement in a contract, without the need to obtain the review or approval by the French courts. 

The process is simple: a draft agreement is written by the parties' counsel and signed by the spouses and their attorneys together. After the expiration of a mandatory 15 days reflection period, the agreement is sent by the most diligent party to a notaire, who will register it and keep an official record. The Court will be seized by the parties to review the agreement only as an exception, in very limited circumstances if a minor child requests to be heard by the judge. 

In the absence of a review by the Courts, there is no requirement for the spouses to have any connection with France to be able to use this new method of divorce, the consequence being that certain authors consider, rightfully, that 'France will become the new Las Vegas of the divorce 1'. 

The other consequence of this purely French administrative divorce is that no independent third party will ensure that the spouses have freely consented to the agreement or, that this agreement is fair and strikes the right balance between both parties' interests (in particular as regards the provisions relating to the children). 

The only requirement intended to ensure the existence of the spouses' free will is the obligation for each party to have his or her own lawyer, which assumes that the lawyer will be committed to the defence of his or her client's best interests. 

The lack of control by a neutral and independent third party could nevertheless allow the possibility of agreements where one party will accept a completely unfavorable agreement, even after having received proper advice from his or her lawyer, for the sake of efficiency for instance (given how long divorce litigation can be otherwise in France).  

B. The Lack of Financial Disclosure

The issue of spousal support, also called "compensatory maintenance" (prestation compensatoire) is also a symptomatic example of the difficulties raised by this reform. 

Before this reform, when the divorce agreement was reviewed and approved by the Courts, and the parties had agreed that one of the parties was awarded an amount for "compensatory maintenance", there was an obligation to provide to the Court a financial disclosure through a statement of net worth (declaration sur l'honneur), prepared and signed by each party.

The new law does not provide for an obligation to exchange or attach such statement to the divorce agreement. The circulaire (which is a document published by the French Ministry of Justice to explain how the new law should be applied in practice) provides that it is recommended for the parties to exchange such statement of net worth. This recommendation does not mean however that there is a strict legal requirement, sanctioned by the Courts. Therefore, the spouses could simply proceed with the divorce agreement, without any form of financial disclosure. 

C. The Lack of European Certificates 

Finally, the legislator has explicitly recognized that the only certificate which will be issued by the notaire is the one provided by Article 39 of the Regulation Brussels II bis. The certificate of Article 41 of the same Regulation will not be issued. The certificates provided by the new European Regulation on Maintenance obligations will not be issued either, which means that the maintenance creditor will not be able to benefit from the facilitated form recognition provided by this regulation.  

One can understand from this summary that the possibility for one of the spouses to attempt to re-open the litigation in other countries such as England or the United States, in the hope of  obtaining an additional amount for asset division or spousal support or better arrangements as regards the provisions relating to custody are significant. 

Carmel Brown and Jeremy Morley detail and explain below the reasons for which such possibility could indeed exist in their respective countries of practice. 

II. Will the French Divorce by Mutual Consent be Recognised in England and Wales?

A divorce granted within the European Union will almost always be automatically recognised in England and Wales, provided that it was granted in accordance with the laws of that particular member state.  Accordingly, given that the divorce by mutual consent would be prepared in accordance with the law - by a deed, signed by both parties and countersigned by the independent lawyer and a notary, it should be recognised in England and Wales.  However, it would need to be accompanied with a certified translation in the usual way.  It is fundamental however that the divorce is not a "transnational divorce", and instead, must have started and finished in France.

It is a worry that, given that a Judge will play no active role in the divorce by mutual consent, that there will be no control over the validity of the divorce agreements and this is likely to increase litigation and post-divorce disputes in France and open up the possibility of secondary litigation in England and Wales, by way of "top-ups".

If the French courts have not triggered their jurisdiction, owing to the fact that the divorce by consent is just a contract, then there is surely still the ability for another country to seize jurisdiction. 

A. Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) 

England is often referred to in the media as the divorce capital of the world. It is widely known to be one of the more generous jurisdictions to wives in the world. Not only this, but the English court can, in some circumstances, order a divorce settlement even where a couple have already divorced (and received financial provision) in another country.

Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) provides the English court with a discretion to step in and make financial orders upon divorce, provided certain jurisdictional requirements are met. 

Essentially, once jurisdiction is accepted, the English court is able to make the same orders as if the divorce had been granted in England, which may include orders for maintenance, lump sum orders, property adjustment orders and pension sharing orders. Accordingly, if a party has entered into a divorce by mutual consent in France, and is genuinely dissatisfied with the settlement, possibly in circumstances where they have not had proper independent legal advice with full financial disclosure, they may seek to make an application in the English courts. This is particularly likely given that there will be no judicial control or guidance.  

The leading authority is the case of Agbaje v Akinnoye-Agbaje, [2010] UKSC 13 which held that the purpose of a Part III application was "the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England".[71]

The range of outcomes is wide and will depend on the circumstances of the case – but we may see one party after a French divorce by mutual consent seeking to re-open their financial claims in England (provided there is the requisite connection to England), notwithstanding that there has already been financial provision in a foreign jurisdiction.  

Until now, it has been significantly harder to run a successful Part III claim in England and Wales after a foreign divorce in a western country, and particularly the EU, given that Part III applications often arise after settlements in more traditional cultures i.e. those that may still treat women differently, therefore making inadequate provision. 

However, that may all change given that French settlements will not be subject to judicial scrutiny and many may sign up to imbalanced and unreasonable settlements, failing to meet both the parties' and the children's needs. Practically speaking, this will clog up our court system given that the proceedings are complex, lengthy and expensive.

The English court will however be unwilling to entertain an application if it considers the French applicant is simply trying to get a "second bite of the cherry" after a financial award in France by mutual consent.

There is another unresolved relevant issue, which is whether a matrimonial award with an element of maintenance in another EU state, automatically precludes the courts of England and Wales from making a Part III maintenance order.  

Given that the European Union's Maintenance Regulation is designed to enable a maintenance creditor to easily obtain an Order that is automatically enforceable in another member state without further formalities, it seems reasonable for Part III to remain unaffected by the Maintenance Regulation. 

However, the question is whether the recognition of the decisions of the other Member States merely means "recognising" that actual decision and the payer's liability or whether it allows a determination of the liability under the laws of England and Wales. The preamble states at s25 "Recognition in a Member State of a decision relating to maintenance obligations has its only object to allow the recovery of the maintenance claim determined in the decision." (Section 25 of Part III of the Matrimonial and Family Proceedings Act 1984). That said, it does appear reasonably clear, that the purpose is not to protect the payer from a Part III claim.

Although a maintenance award made in another EU state will have significant weight on whether leave is granted under Part III and in relation to the substantive application, in practice, it is likely that a prior maintenance award in another EU country would not prevent financial provision outside of the scope of the Regulation. Accordingly if a party has already obtained a maintenance award in France, a Part III application dealing with all financial matters and including maintenance, may still be on the table.

B. Children Matters and Contact

The new French legislation has unfortunately failed to deal with cases with international issues and elements and there is no method for obtaining the Certificates provided in the European Regulations (apart from Article 39 of the Brussels II bis), and a notary may not issue such certificates.  

Accordingly, the implications are vast and we lose the ability for French Orders complying with the conditions set out in Articles 20 and 40-42, to be directly recognised and enforceable in England and Wales.

The English Courts would consider it unsatisfactory for there to be conflicting Orders in existence in different states affecting children, yet this is the problem we will be faced with in circumstances where we will lose the benefits of the European Regulations. 

III. Will the French divorce by mutual consent be recognized in the United States?

The extent to which courts in the United States will recognize French administrative divorces is uncertain and raises a host of interesting questions.  The issues are rendered particularly complex because of the unusual features of the divorce recognition principles that apply in the U.S., including the American concept of "divisible divorce," the imprecise nature of U.S. comity rules, the unique impact of the due process clause in the U.S. Constitution, the different statutory provisions in the 50 U.S. states, variations in judicial interpretations from state to state, and the particular jurisdictional rules as to child custody jurisdiction.

A. Recognition of the "Bare" Divorce

American courts will normally recognize foreign court divorce judgments under the doctrine of comity if one spouse was domiciled in the foreign country when the case was commenced, meaning that it was the place of the spouse's true, fixed, permanent home and principal establishment, and to which, during any absence, the person intends to return. But recognition may nonetheless be refused if the foreign legal system was partial or unfair or if the judgment was procured by duress or fraud. 

There are very few reported cases in the U.S. concerning non-judicial divorces. It is likely that U.S. courts will follow the general principle that a divorce regularly obtained according to the laws of the country where at least one spouse is domiciled will usually be recognized as effectively dissolving the marriage. In a case in Hawaii, a decision to recognize a Taiwanese administrative divorce was recently upheld on appeal, and foreign administrative divorces were likewise recognized in some immigration cases.

However, the new French procedures authorize administrative divorces even if neither spouse is domiciled in France or even connected to France. Therefore, it is submitted that there is a great likelihood that a French administrative divorce of spouses who were both not domiciled in France will generally not be recognized in the United States. 

An exception to this principle may well apply in New York, whose courts have long recognized foreign "bilateral" consent divorces, such as Dominican judicial divorces where one spouses flies there for a weekend with a power of attorney signed by the other party, even though neither was domiciled there. However, courts elsewhere in the U.S. have refused to follow the New York rule. 

Another exception will be likely to apply to prevent a spouse from contesting a divorce if he or she has relied on the divorce in order to obtain any kind of benefit or advantage. However, that would not preclude a third party, such as the U.S. immigration authority, from refusing to recognize the divorce

B. Recognition of the Financial Consequences of the French  Divorce

In order for a U.S. court to recognize the financial component of a foreign divorce decree, each party must have had a significant connection to the foreign country, or have been served with process in that country or have submitted to the foreign court's jurisdiction. This element will presumably be satisfied in the case of French administrative divorces since the consent of both parties is required for the divorce. 

However, subsequent and serious problems may well arise if a party has second thoughts about the financial terms, and seeks to have them set aside in a court in the United States.  Any such effort will benefit from the fact that the French procedures do not require in an compulsory way any prior financial disclosure.

Courts in the U.S. will normally not reopen the financial issues that have been determined in a foreign divorce case unless there is clear proof of fraud or duress, as long as the foreign court had jurisdiction over the marriage and personal jurisdiction over the defendant. A U.S. court will normally not even allow a party to make claims about assets that were not considered by the foreign court unless it is clearly established that the foreign court had no power to consider those assets.

However, administrative divorces may well be treated differently, since they are based on the mere agreement of the parties and they require no judicial oversight. U.S. courts will likely apply to such divorces the more flexible and liberal principles that they have developed concerning the avoidance of spousal settlement agreements leading to a judicial divorce. In general, U.S. courts may set aside a financial settlement agreement at the request of a spouse who establishes that his or her consent was procured by undue influence or in some jurisdictions merely because the result is unfair. 

In reviewing the financial provisions of a French administrative divorce the relevant factors will certainly include whether or not, before entering into the French agreement, the complaining spouse had adequate knowledge of the relevant financial facts, received full and frank financial disclosure, adequately understanding what was being agreed to and the consequences of entering into the agreement, and had separate and independent legal representation. The attitudes of courts in different U.S. states to such claims will vary from state to state, based on the specific case law that has been developed in each such state concerning the avoidance of divorce settlement agreements, the specific provisions of any governing local legislation and the attitudes of local judges.

C. Recognition of the Child Custody Elements of the French Divorce

American courts will certainly not recognize any portion of a French administrative divorce that deals with the custody of children except to the extent that the statutory jurisdictional rules of the local U.S. state are satisfied. 

Each U.S. state has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"), except Massachusetts which has adopted a prior but similar statute. In very broad terms, it provides that a child's "home state" – meaning the state or foreign country where the child has lived for the past six months - has exclusive jurisdiction to issue an initial child custody order and has continuing exclusive jurisdiction neither the child not either parent lives in that state or country.

This means that if, for example, a French administrative divorce were to purportedly settle custody issues concerning a child who does not live or has not lived in France, the custody terms would almost certainly be unenforceable in the United States.  

D. Support Provisions

Significant problems will arise in the U.S. concerning the enforcement of the child support and spousal support provisions of a French administrative divorce. The Uniform Interstate Family Support Act, adopted throughout the U.S., provides measures to enforce "support orders" issued by other U.S. states or by most foreign countries. However, the term "support order" is defined as "a judgment, decree, or order, or directive" that has been "issued by a tribunal," meaning "a court, administrative agency, or quasi-judicial entity." Since the support terms of a French administrative divorce will not be in the form of a judgment, order or the like issued by a "tribunal," it may well be especially difficult to enforce such provisions in the U.S.  

Conclusion

The enforceability of French administrative divorces in the United States and in England will raise a host of complex and interesting legal issues. Full disclosure of such issues to parties who have a connection to a common-law country is strongly recommended. 

In summary, these changes in France are likely to have various and quite large-scale implications in other countries, in particular in countries such as the United States and England and Wales, which are based on a very different legal culture. 

We are hopeful that the comments of practitioners are noted and the necessary and appropriate changes are made.

11.5.17

_________

1. See Alexandre Boiché, in the French family law Journal, AJ Famille, January 2017.

Court Bars a Child’s Visit to India

The Federal Circuit Court of Australia has dismissed the application by an Australian mother of Indian origin to take her child to visit India.  She stated that she wished her young daughter to be present in India, where she planned to marry an Australian man who is also of Indian origin, and then return to Australia.

The Circuit Court relied on expert evidence concerning India’s laws and practices in child custody matters regarding international cases.  In this regard the Court ruled that:

“Although it is a matter for conclusive determination at the final hearing, for the purposes of this interlocutory application I place weight on the expertise of Mr. Morley in the field of international child abduction and his opinion that given the complexities of the Indian family law system the father is likely to face considerable difficulties and expense in locating [the child] and ensuring her safe return, should her mother retain her in India…

It is impossible to predict how an India court may navigate the facts of this case or how much weight an Indian court might give orders of this court.  Mr. Morley’s comment that there is a ‘substantial likelihood’ that the Indian courts would not return the child should the mother fail to return to Australia is sufficient to demonstrate that significant uncertainty exists regarding the degree of deference an Indian court is likely to pay an Australian parenting order. As such, the child’s return to Australia should the mother fail to comply with an order of this Court cannot be guaranteed by the commencement of proceedings by the father in India…

Mr. Morley opines that Courts outside India should be extremely wary about allowing a parent to take a child for a temporary visit to India over objection of the other parents where the mother is of Indian origin and the child is female. In his view there is a substantial likelihood that if the child is not returned voluntarily the Indian court will not return her to her home of habitual residence. Proceedings to recover the child (if necessary) are likely to be extremely slow and expensive process. He contends that [the child] ‘being a girl child, the guardianship of the Mother is of utmost significance. Ordinarily the custody of a girl child who is around 7 years of age must ideally be with her Mother unless there are circumstances to indicate it would be harmful...’”

Habitual Residence in the Hague Abduction Convention: European Common Sense v. American Confusion

Jeremy D. Morley

                                                    www.international-divorce.com

The Court of Justice of the European Union has issued a fascinating opinion (ECLI:EU:C:2017:436)  concerning the definition of the term “habitual residence” as employed in both the Hague Abduction Convention and the governing European Union regulations. The contrast between the European approach to interpretation of this key term, and the various conflicting and confusing approaches taken by courts in the United States, could hardly be stronger. 

The case concerned an Italian father and a Greek mother who lived together in Italy until the wife, while pregnant and with the father’s agreement, went to Greece to give birth to their child. Their plan was that she would return to Italy with the baby after some undefined period of time with her family in Greece. Five months after the baby’s birth, and upon the mother’s refusal to return to Italy, the father brought a case in Italy for divorce and custody and a case in Greece for the return of the allegedly abducted child. 

The Greek court then asked the E.U. Court of Justice for an urgent preliminary ruling on whether the child was habitually resident in Greece. 

The E.U. Court ruled as follows:

1.                  The concept of habitual residence is an autonomous one of EU law.

2.                  Its meaning must be uniform. 

3.                  The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment. 

4.                  The child’s presence should not in any way be temporary or intermittent. 

5.                   The relevant factors to consider include the duration, regularity, conditions and reasons for the child’s stay in the country and the child’s nationality.

6.                  If the child is an infant, its environment is essentially a family environment, and it necessarily shares the social and family environment of the person(s) who care for the child.  

7.                  The intention of the parents to settle permanently with the child in a country can also be taken into account, if shown by certain tangible steps such as the purchase or lease of a residence.

8.                  Parental intention cannot as a general rule by itself be crucial to the determination of the habitual residence. It is only an ‘indicator’ that can complement other consistent evidence. A general and abstract rule that the initial shared parental intention is decisive would “transcend the concept” of habitual residence, would contravene the structure, effectiveness and the objectives of the return procedure, and “would be detrimental to the effectiveness of the return procedure and to legal certainty.”

9.                  A return procedure is, inherently, an expedited procedure, since its aim is to ensure the prompt return of the child. The EU legislature has given concrete expression to that imperative, in Article 11(3) of Regulation No 2201/2003, by requiring courts seized of applications for return to issue their judgments, save in exceptional circumstances, no later than six weeks after the application is lodged.

10.              An application for return must therefore be based on information that is quickly and readily verifiable and, so far as possible, unequivocal. 

11.              Yet, it may be difficult, if not impossible, in a case such as the pending case, to establish beyond all reasonable doubt, for example, the date initially envisaged by the parents for the mother’s return, and whether her decision not to do so is the cause or, on the contrary, the consequence of the father’s divorce proceedings.

12.              To interpret, in such a context, the concept of habitual residence in such a way that the initial intention of the parents as to the place which ‘ought to have been’ the place of that residence would constitute the fundamental factor, would be likely to compel the national courts either to gather a substantial quantity of evidence and testimony in order to determine with certainty that intention, which would be difficult to reconcile with the requirement that a return procedure should be expeditious, or to issue their judgments while not in possession of all the relevant information, which would result in legal uncertainty.

13.              The aim of the return procedure is to put the child back in the environment with which the child is most familiar and, thereby, to restore the continuity of the child’s living conditions and the conditions in which the child can develop.

14.              However, the alleged wrongful conduct of one parent cannot in itself justify ordering the removal of the child from the country where the child was born and has lawfully and continuously lived to a country with which the child is not familiar.

15.              Consequently, when a child has been born and has lived continuously with her mother for several months, in accordance with the joint wishes of her parents, in a country other than that where those parents were habitually resident before her birth, the initial intention of the parents with respect to the return of the mother, together with the child, to the latter country cannot allow the conclusion that that child was “habitually resident” there, within the meaning of that regulation.

16.              The child was habitually resident in Greece. Accordingly, the child should not be returned to Italy under the Hague Convention (as brought into European Union) and the Greek court should determine matters concerning the child’s custody.

In extremely sharp contrast, the courts in most U.S. federal circuits have elevated the last shared intention of the parents to a dominant position in the interpretation of habitual residence. Making matters worse, some courts adopt an interpretation that is closer to the European approach, some courts adopt a middle ground between the two extremes, and many courts follow shifting principles concerning such issues as whether the intentional abandonment of a prior habitual residence must be established before a new habitual residence can be acquired, and whether and when so-called “acclimatization” trumps intent. 

Moreover, except for giving calendar priority to Hague cases, U.S. courts have failed to address the need to tailor judicial procedures in such cases to reflect the need for expeditious resolution. 

As a result, when the issue of habitual evidence is contested, they generally allow – and, indeed, encourage – the presentation of voluminous evidence at trial concerning the last shared intention of the parents, which requires proof of the intimate details of such matters as shipping of specific kinds of clothing and other items, the substance of speeches at alleged farewell parties, the meaning of text message phrases of farewell or bon voyage, the passing remarks made to real estate agents, and an unlimited stream of other information addressing in any way the issue of exactly what was in the minds of each parent as they drove to the airport. 

Furthermore, while the courts in most countries rely primarily on written submissions in Hague cases, courts in the United States usually require evidence in the form of live testimony and they often authorize extensive pretrial sworn depositions and other discovery. 

The result is that Hague Convention cases in the United States, especially in those circuits that have followed the majority interpretation of habitual residence, can consume weeks and months of attorneys’ preparation time, and weeks of trial time, leading to transcripts of thousands of pages of testimony, extraordinary delays in securing initial decisions and cases that may languish on appeal for months and even years. 

Adding insult to injury is the uniquely American rule that a losing respondent in a Hague case – but not a losing petitioner – must normally be ordered to pay all of the legal fees and related expenses of the petitioner (including the often extraordinary attorneys’ fees of petitioner’s pro bono counsel calculated at their full hourly rates). While it may be appropriate to sanction a brazen international child abductor, the issues in Hague cases are often close and unpredictable and they are rendered much more so in the United States by virtue of the contradictory case law concerning such loose terms as “last shared parental intention” and “grave risk of harm.”  

Indeed, it is simply shocking that the United States Supreme Court has refused numerous applications for certiorari to address the issue of the interpretation of habitual residence, despite (a) the existence of a clear split among the federal circuits, (b) the express treaty requirement of uniform international interpretation, as well as prompt results, (c) the clear divergence between the majority U.S. approach interpretation and that which has been adopted by most other countries, (d)  the extraordinary waste of judicial and attorneys’ effort that results from confusion concerning the interpretation of the term, and from the interpretation of the majority of the circuits that focuses on the mindsets of the parents, and (e) the resulting fantastically high legal fees incurred by parents on both sides of these cases who are often simply trying to do the best to protect and nurture their children.  

The Old World still has a few things to teach us, I submit.

Argentina’s Hague Abduction Noncompliance Continues

In June 2017, the U.S. Acting Principal Deputy Assistant Secretary for Consular Affairs delivered another demarche to the Argentine Ministry of Foreign Affairs, notifying the Argentine authorities that the U.S. State Department had again cited Argentina in the 2017 Annual Report for demonstrating patterns of noncompliance during 2016. Parents should be alert to the fact that if a child travels to Argentina with one parent, and if that parent or his family then retain the child in Argentina, it is likely to be extremely difficult or impossible to secure the child’s return.

Lawline: International Child Custody & Abduction

My lecture on International Child Custody & Abduction is available at www.lawline.com/course-center/international-child-custody-abduction

Some reviews:

·  Extremely interesting. Presenter had very effective style.

·  Excellent course. One of the best presenters I’ve seen.

·  superb lecture by Jeremy - thanks

·  Thoroughly enjoyed. Fascinating area.

·  Good information on a complicated subject.

Notes on Egypt and International Child Abduction

Updated October 2017

Jeremy D. Morley

1.     The U.S. State Department has determined - and has reported to Congress - that Egypt has demonstrated a persistent failure to work with the U.S. Central Authority to resolve cases of international parental child abduction.

2.     The Superior Court of Washington for King County ruled in 2015 - based on the expert evidence of international family lawyer Jeremy D. Morley and another expert - that there is "clear and convincing evidence that Egyptian child custody laws violate fundamental principles of human rights." Therefore, Washington State should not treat Egypt as a "state" for purposes of the Uniform Child Custody & Jurisdiction Act.

3.     The Washington court found, inter alia, that Egyptian family courts apply specific Sharia law rules to child custody cases, under which a Muslim mother is disqualified from custody if she does not raise the child as a Muslim and / or if she does not comply with Muslim religious requirements or if she remarries or moves away from the father's domicile.

4.     It also found that Sharia child custody law in Egypt does not adequately take into account acts of domestic violence perpetrated by the husband against his wife and that a husband is entitled there to use physical force against a "disobedient" wife. For this reason the Washington court found that the Egyptian courts had no child custody jurisdiction, even though the parties and their son had lived in Egypt at all relevant times until the mother, without the husband's consent, left for the United States with the child, and even though the husband filed a case for custody in Egypt within six months thereafter.

5.     Egypt has not signed Hague Convention on the Civil Aspects of International Child Abduction.

6.     The removal of a child by the non-custodial parent to or within Egypt is not a crime in Egypt unless the child is subject to Egyptian court-ordered travel restrictions. 

7.     A left-behind parent must work within the Egyptian court system in order to obtain legal custody of the child in Egypt.

8.     Egyptian mothers of children born to a non-Egyptian father may request an Egyptian passport for the child from any Egyptian consulate.

9.     Foreign custody orders are not generally recognized in Egypt, and will not be given any weight unless they are in compliance with Sharia law.

10.     Egypt’s Personal Status Law primarily favors the mother. Mothers are most commonly considered to be the appropriate custodians of children up to age 15.  Normally, if custody disputes arise between parents, Egyptian courts uphold presumptive custody. A mother may lose her presumptive custody if she remarries or is otherwise deemed unfit, in which case the Egyptian courts recognize an order of preference of alternate adult custodians. For this purpose, the law categorizes women according to their priority of taking care of children: “The mother, then the grandmother from the mother’s side; then the grandmother from the father’s side, then sisters from the mother’s side; then sisters from the father’s side; then niece from the mother’s side; then niece from the father’s side, etc. Only then will the right come to the men side.”

11.     Egyptian law contains no provision for equal shared parental responsibility.

12.     While father’s automatically have guardianship rights, those rights are curtailed substantially as compared to other Islamic countries. 

13.     The provisions of the Personal Status Law apply likewise to Christians in Egypt as to Muslims.

14.     If the mother loses her presumptive custody the courts recognize an order of preference of alternate adult custodians with priority given to the mother's family in the following order:  maternal grandmother or great-grandmother; paternal grandmother or great-grandmother; maternal aunt; paternal aunt; maternal niece; paternal niece.  Only if these relatives do not exist, will the right of custody shift to a male.

15.     The Family Courts generally permit a non-custodial father to have visitation with his children for only three hours a week in a public place during the daytime, unless the parties agree otherwise 

16.     In 2003, the U.S. and Egypt signed a Memorandum of Understanding that purportedly confirms both countries' commitment to facilitating parental access to children in the other country. A similar memorandum was signed between Egypt and Australia. However the Memoranda do not address international child abduction, have no teeth and are relatively meaningless.

17.     In May 2015, the U.S. Embassy in Cairo delivered a demarche to the Egyptian government "noting the country's citation in the 2015 Annual Report on International Parental Child Abduction as demonstrating patterns of noncompliance." The Embassy had previously delivered a similar demarche to the Egyptian Government in 2014.