Monday, November 27, 2017
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,  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".
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.
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.
1. See Alexandre Boiché, in the French family law Journal, AJ Famille, January 2017.
Tuesday, November 21, 2017
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...’”
Friday, November 17, 2017
Jeremy D. Morleywww.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.