INTERIM MAINTENANCE IN HIGH-NET-WORTH CASE IN ENGLAND, DESPITE NEW YORK PRENUPTIAL AGREEMENT

                                                                                                                        By Jeremy D. Morley*

High-net-worth divorce cases in England can be both unpredictable and extremely expensive, even when the parties have signed a well-drafted, thoroughly reviewed and subsequently modified New York prenuptial agreement containing substantial provisions for the lesser wealthy spouse. A case on point is Collardeau-Fuchs v. Fuchs, [2022] EWFC 6 (21 February 2022).

The parties had signed a New York prenuptial agreement, in which the husband had disclosed a net worth of more than £1 billion, and the wife a net worth of about £4 million. They had then signed a modification of the prenuptial agreement during the marriage. Fortunately for the wife, she was able to bring her divorce case in London, where the family owned an extremely valuable home. The family also owned extremely valuable residential properties in New York, France and other locations.

An interim decision in the case was rendered a few days ago, solely on the question of the amount of interim maintenance to be paid by the husband, pending the final resolution of the case. It was only an 8-year marriage, although in England it would be deemed a 12-year relationship since the parties had cohabited for 4 years prior to the marriage (or only for 2 years according to the husband).  The length of the relationship is a factor of far greater significance in England than in New York.

The prenuptial agreement, as modified, provided that the wife would receive a lump-sum payment upon a divorce of £23.5 million plus 18 years of rent-free accommodation at the family home in West London, valued at £30 million.

Under English law, the prenuptial agreement could not modify or limit the duty of the English court to provide for interim maintenance to parties in “need.” New York does not necessarily so provide. The decision of the English court by the Hon. Mr. Justice Mostyn -- an English High Court judge who had himself once achieved fame as a barrister with the nickname of “Mr Payout” because of the enormous sums he had won for divorcees – concerned nothing more than the extremely preliminary issue of interim maintenance.

The English court determined that, during the pendency of the divorce case, the husband must pay to the wife sufficient sums as would meet her “reasonable needs.” It held that English law required that the term “reasonable needs” must be interpreted in light of the standards enjoyed by the parties during the marriage. Since the reality was that “the husband and wife in this case belong to a tiny percentage of the world population who have control and management and entitlement to huge sums of money,” the wife’s “reasonable needs” must be considered “according to the standards of the ultra rich.” The court insisted that it had a duty to “avoid the risk of confining [the needs of the wife] by the application of scales that would seem generous to ordinary people.”

The court found that the portion of the parties’ annual living costs that was attributable to the wife, for the last full year before the parties separated, was approximately £855,000.00 ($1,368,000.00), of which about 55% (£475,000.00) was for (obviously lavish) vacations. This sum did not include the cost of staff for the West London house (two chefs, a house manager, 2 or 3 housekeepers, a launderer, and numerous contractors such as gardeners, pool maintenance builders, plumbers, electricians, and handymen) solely, as well as other “Overheads.”

Accordingly, the court ordered the husband to pay the sum of £855,000.00 a year to the wife on an interim basis until the conclusion of the case, plus £2.78 million a year for staff and overhead, for a grand total of £3.635 million (almost $5 million) per annum.

The court also ordered the husband to pay all of the wife’s legal fees, both past due and those yet to be incurred. Judge Mostyn explained that, although the litigation was only “at a relatively early stage,” the parties had nonetheless already incurred considerable legal costs which amounted to about £917,000.00, with another £288,700.00 anticipated through the end of the next month, for an interim total of £1,205,000.00 ($1.64 million).

Meanwhile, the very much larger issue of the full effect of the prenuptial agreement in England remains to be determined. In this regard, the contrast between New York and English law remains extreme. It is clear the public policy of the New York courts to encourage marrying couples to create certainty about their financial arrangements by entering into prenuptial agreements. The New York courts will enforce the terms of a well-drafted prenuptial agreement upon a divorce absent proof of unconscionability or extreme unfairness or duress, or other unusual circumstances. But courts in England are far more circumspect in their enforcement of such agreements, even when there has been full financial disclosure and independent legal representation. English judges remain particularly protective of the rights of less wealthy spouses and the need to consider “fairness” in determining whether to apply or modify the terms of a prenuptial agreement. The wife in the just-reported case seems to have been extremely fortunate, or extremely wise or strategic, to have been able to bring her case in London, and not in New York.

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* Jeremy D. Morley is a New York lawyer who collaborates with counsel in England and other jurisdictions in handling international prenuptial agreements. He may be reached at www.international-divorce.com and www.internationalprenuptials.com

 

FINANCIAL RESTITUTION AGAINST INTERNATIONAL PARENTAL CHILD KIDNAPPERS

U.S. law allows a left-behind parent whose child has been abducted to the United States to compel the abducting parent to repay all of the fees and expenses incurred in seeking the child's return. 22 U.S.C. §9007(b)(3). But there is no similar provision that clearly entitles a left-behind parent whose child has been abducted out of the United States to seek reimbursement from the abductor of the fees and expenses incurred in seeking the child's return to the United States.

There is appears to be a split between the Ninth and Tenth Circuits as to whether federal legislation that authorizes an award of restitution to a victim of criminal offense can be used to recoup a left-behind’s parent’s legal expenses in cases of international parental child abduction once the abductor has been found guilty of international parental child kidnapping pursuant to the International Parental Kidnapping Crime Act (the “IPKCA”) 18 U.S.C. §1204.

The Victim and Witness Protection Act of 1982 authorizes a federal district court to sentence a criminal defendant to pay restitution to a victim of the offense to the extent of “expenses related to participation in the investigation or prosecution of the offense.” 18 U.S.C. §3663(b)(4).

In U.S. v. Cummings, 281 F.3d 1046 (9^th Cir. 2002), the defendant father was successfully prosecuted under the IPKCA for having abducted his children from their home in the State of Washington to Germany. The left behind mother brought a return action against the father in Germany under the Hague Abduction Convention and an action in the State of Washington for contempt of court for his violation of a custody order. The father was sentenced to a term in jail and was required to pay the mother’s legal fees and expenses in the two civil actions. The Ninth Circuit upheld the restitution award, holding that the mother’s civil cases were not “wholly separate” from the government’s prosecution of the father. This was supported by the fact that, by initiating a case under the Hague Convention, the mother had followed the procedure specifically described in the IPKCA as the preferred “option of first choice” for a left-behind parent.

More recently, however, the Tenth Circuit held in U.S. v. Mobley, 971 F.3d 1187 (10th Cir. 2020) that it would not follow Cummings. In Mobley, the government prosecuted a mother under the IPKCA for her abduction of her children from their home in Kansas to Russia. Once she was in Russia, she had filed there for divorce and custody in Russia. The left-behind father had then sued for divorce and custody in Kansas. The Russia court had given custody to the mother, and the Kansas Court given custody to the father. The district court found the mother guilty under the IPKCA and ordered restitution to the father of the legal fees and expenses that he had incurred in connection with the two civil cases.

On appeal, the Tenth Circuit overturned the restitution award. It held that §3663 is not satisfied by evidence that the expenses were incurred in proceedings that were merely “related to” the criminal offence. Instead, the expenses must be “related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” It held that the terms “investigation”, “prosecution” and “proceedings” are limited to the government's investigation, the government's criminal prosecution, and the criminal proceedings, in accordance with the ruling of the U.S. Supreme Court in Lagos vs. U.S., 138 S. Ct. 1684 (2018). There was no evidence that the government had directed or sanctioned the father’s civil proceedings, and the mother's attempts to secure children’s return “did not assist the government in its investigation or of prosecution of the mother.”

It remains to be seen whether Mobley will, in future cases, be successfully distinguished on its facts. Specifically, it is possible that proof could be elicited that the litigation efforts of a left-behind parent assisted the governor's prosecution of an international parental kidnapping case. In such a case, a restitution award might still be deemed appropriate. Even then, restitution would be restricted to those few cases in which an abductor is prosecuted under the IPKCA. Of course, recovery in any such case would be extremely remote. 

Hague Abduction Cases: Left-behind Parents, Lawyers & Judges Must Understand How Central Authorities’ Roles Vary Dramatically between Countries

 The Hague Abduction Convention requires each treaty party to establish a Central Authority to provide assistance in both “outgoing” cases in which a child is taken away from a country and “incoming” cases in which a child has been brought into the country. The Convention leaves it up to each country to decide how the Central Authority will operate.

In some countries the Central Authority exercises a leading role in handling cases under the Convention. In other countries, such as the United States, the Central Authority’s role is extremely limited. This discrepancy is often unrecognised, and it may lead to confusion and even serious error.

In Australia, the Central Authority is a department within the Attorney-General's Department of the Australian Government. There are also separate Central Authorities for each Australian state or territory. In most Hague Convention cases in Australia, the appropriate Central Authority itself initiates judicial proceedings in the Australian courts for the return of children allegedly abducted to Australia. Indeed, the Central Authority is the plaintiff in any such case and the Central Authority lawyers do not take instructions concerning the conduct of such cases directly from the left-behind parent, who is not even a party to the legal proceedings. Left-behind parents may, in the alternative, start a case in their own name but this is unusual and perhaps ill-advised.

Similarly, the Central Authorities in Germany and New Zealand take on a substantial role in initiating judicial proceedings under the Convention.

However, cases in the United States are handled in a completely different way. The Central Authority in the United States is the State Department's Office of Children's Issues in the Bureau of Consular Affairs. It does not initiate litigation in any Hague Convention case and it has no power to do so. It has no responsibility or function to bring any cases under the Convention or to be involved in any significant way in any Hague Convention judicial proceeding. The Office of Children’s Issues has no judicial function whatsoever. It has no authority to secure a child’s return pursuant to the Convention. It is exclusively the responsibility of the left-behind parent to retain counsel and to commence a court case in the United States to seek an order that an abducted child must be returned.

Upon receipt of an application that is made by a left-behind parent under the Convention, whether the application is submitted by a foreign Central Authority or even if it is submitted directly by the left-behind parent, the United States Central Authority may assist with locating the child, and it will send a simple letter to the other parent suggesting mediation or a voluntary return, but it will certainly not file a case in court for the return of the child. 

Unfortunately, foreign Central Authorities may not fully understand that the U.S. State Department does not have any proactive role in litigating Hague Convention cases and they may not inform left-behind parents that they must start their own cases in the United States.

The fact that this critical distinction between Central Authorities that handle the Hague Convention case and those that do not is often misunderstood is even reflected in the current website of the Australian Central Authority, which includes advice on “International parental child abduction” that includes a flowchart of the “Application process for return of an abducted child to Australia.” The flowchart states that the steps to recover a child who has been abducted from Australia are as follows:

·       The first step is “Application received by Australian Central Authority (ACA).

·       The second step is “ACA assesses application against the Hague Convention.”

·       The third step, if there is a positive assessment, is “Application accepted by ACA, transferred to relevant CA in other country.”

·       The fourth and critical step, according to the flowchart, is:

“Overseas central authority takes appropriate action which may include mediation, seeking a voluntary return, or filing in court for the return of the child.”

Unfortunately, that advice is completely incorrect and misleading with respect to abductions to countries such as the United States. In particular, the U.S. Central Authority does not file a court case for the return of the child. To make matters worse, the Australian website does not warn left-behind parents that it is their sole responsibility to start the Hague case in the United States, and that the U.S. Central Authority will not handle it.

Similar confusion is shown in a case that is currently before the courts in New York. The Central Authority in Luxembourg is the State Prosecutor’s Office (the Parquet Generale Cite Judiciare). As is the case with Australia, that office is responsible for prosecuting incoming abduction cases in Luxembourg and its role is expansive and proactive. In the pending matter in New York, the Luxembourg Central Authority submitted to the U.S. Central Authority a formal referral of an application for a child’s return to Luxembourg, in which it requests the U.S. State Department to “take all the measures contained in article 12 of the above-mentioned Convention for the immediate return of the child to Luxembourg.” As stated above, the State Department does not take any such action and cannot do so. Is it any wonder that a left-behind parent would expect that the U.S. State Department is handling the matter?

In my extensive experience, left-behind parents often think that, merely because they have submitted an application for their child’s return from the United States under the Convention, they have “started a Hague case.” Nothing could be further from the truth. Central Authorities must ensure at a minimum that they do not provide incorrect information to their citizens. Nor should they suggest that left-behind parents should seek legal advice from the U.S. Central Authority, which cannot provide any such advice. In addition, I must reluctantly state that many of my clients have informed me that they have received incorrect or incomplete advice from the U.S. Central Authority.  

Left-behind parents must be warned that, if they do not commence a case in a U.S. court within one year of the date of the wrongful removal or retention, the abductor will be able to take advantage of the provision in Article 12 of the Convention that the court need not order the return of a child who has become settled in the new environment. The International Child Abduction Remedies Act provides that “the term ‘commencement of proceedings’, as used in Article 12 of the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with subsection (b) of this section.” 42 U.S.C. § 11603(f)(3). Accordingly, the one-year period is not tolled by reason of the mere filing of a Hague application even if the left-behind parent believed that filing the application was sufficient or believed that the U.S. State Department was handling the case.  Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018).

The submission of an application to the Office of Children’s Issues does not constitute the initiation of judicial proceedings, does not stop the clock for purposes of the “one year and settled” exception to the Convention, and does not require the alleged abductor to take or not to take any action. The Office does not appoint attorneys for left-behind parents, and it does not file return petitions with the courts. Unlike several other countries, and notwithstanding the advice that may be provided by some Central Authorities, the responsibility for starting a Hague case in an appropriate court in the United States rests exclusively with the left-behind parent.