International Family Law

Hong Kong Prenuptial Agreements

2012-01-24T13:44:00.000-08:00

It is expected that the courts in Hong Kong will follow the lead of the English courts concerning prenuptial agreements. That opinion was reflected in the recent Hong Kong case of SA formerly known as SA v. SPH [2011] HKCFI 1649; HCMC1/2011 (10 Nov.2011).

The current state of English law on prenuptial agreements may be found in the ruling of the UK Supreme Court in Radmacher v. Granatino.

There the court ruled on preliminary matters in a divorce case between German nationals whose matrimonial residence had been in Hong Kong. The issue concerned the effect of a prenuptial agreement and also a separation agreement which the parties had executed in Germany under German law. The court recognized that the effect of these agreements in Germany was likely to be far different from their effect in Hong Kong. In Germany the agreements were likely to be enforced strictly but in Hong Kong it was likely that a court would apply the Radmacher case and would therefore not be enforced unless it were established that the agreements were “fair in all of the circumstances.”

The husband asked the Hong Kong court to stay the action in its court pending a determination of the issues by a court in Germany. The Hong Kong court agreed to do so but only because it determined that Hong Kong law would allow the wife to apply for an additional financial award in Hong Kong if the courts in Germany were to make an award that was unfair to the wife when examined under Hong Kong’s laws. Thus the wife would have “two bites of the apple.” She could argue her case in Germany and then come back to Hong Kong for a second round if she was unhappy with the result in Germany.

The review of the matter in Hong Kong would likely occur under the guidelines in Radmacher. There, the English court ruled that courts “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” A prenuptial agreement might have “decisive weight” but must always be reviewed on a case-by-case basis for fairness.

The conclusion is that prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge.

Hague Abduction Convention under Threat from the European Court of Human Rights

2012-01-20T07:42:00.000-08:00

The European Court of Human Rights (the “ECHR”) continues to attack the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), including a decision issued in December 2011.

In June 2010 in Neulinger & Shuruk v. Switzerland the ECHR ruled that the European Convention on Human Rights requires that courts may not return an abducted child to its habitual residence, even when the child’s return is mandated by the Hague Convention, unless it is first established that it is in the best interests of both the child and the child’s family to do so.

The ECHR thereby overruled thirty years of international case law, discounted the fundamental purposes of the Hague Convention of deterring international child abduction and of not rewarding international child abduction, and ensured that any Hague case that follows its precepts will be lengthy and expensive as well as often unfair to the left-behind parent who must now defend what could be almost a custody case on the taking parent’s home turf.

Notwithstanding extensive criticism of its decision the ECHR has followed the Neulinger case in more recent cases.

In Šneersone and Kampanella v. Italy (ECHR Application no. 14737/09) the ECHR applied Neulinger to override an Italian return order that had been issued after an admitted international child abduction from Italy to Latvia.

In April 2006 the child’s unmarried mother unilaterally took the parties’ son from their habitual residence in Rome, Italy to her native Latvia where she retained him. She claimed that she did so because the father was not paying child support and she could not afford to remain in Italy.

The ECHR criticized the Italian courts’ failure to consider: (a) the risk that the child’s separation from his mother might leave him with neurotic problems or an illness, (b) the father’s failure to visit his son in Latvia since 2006 or (c) whether the father’s home was suitable for a young child.

The ECHR, citing Neulinger, stated that it “must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.”

The Court’s decision is astonishing for its failure to criticize the mother’s conduct in abducting the child in the first place and for its failure to address the fact that the Article 13(b) exception should not be invoked when the abducting parent is the one who creates the risk by refusing to return with the child. The ECHR decision endorses international parental child kidnapping and constitutes an extremely dangerous precedent.

Equally disturbing is the case of X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011.

Here the child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother and supported this assertion with a psychologist’s report and she claimed that she did not have the financial resources to return there. The appeal failed in January 2009.

Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Court disregarded the psychologist’s report and did not sufficiently consider “what would happen as regards the child’s material well-being if returned to Australia.”

For a full discussion of these issues see my just-published article in the IAML Law Journal, TheHague Abduction Convention: A Critique of the Neulinger Case.

Quebec Court Orders Return of Children to California

2012-01-18T06:11:00.000-08:00

We are very pleased to report a successful outcome in a California – Quebec, Canada international child abduction case. We represented the father and worked with local counsel in California and in Quebec.

The Quebec Court of Appeal has just issued a judgment overturning the decision of the Superior Court in Quebec and ordering that the children must be returned home forthwith to California.

The lower court refused to return the children to their habitual residence in California on the grounds that the father had consented to the children’s move to Quebec and that there was a grave risk of harm to them if they were to return. The appeal court gave short shrift to each such defense, criticizing the trial court for having given far too liberal an interpretation to the exceptions in the Convention and insisting instead that they must be restrictively interpreted.

With respect to consent, the appeal court held that while it was reluctant to interfere with the findings of fact of the trial court, the record did not contain the required clear, positive and unequivocal of consent that the Convention requires.

With respect to grave risk, the appeal court insisted that a removing parent must not be allowed to abduct a child and then, when brought to court, complain that the child has grown used to the surroundings to which the children were abducted.

No Family Law in Saudi Arabia

2011-12-19T12:47:00.000-08:00

One might think that the dangers of marrying Saudi nationals and living in Saudi Arabia would by now have been sufficiently well publicized as to cause Western nationals, especially Western women, to steer clear of living in Saudi Arabia with a Saudi spouse.

Unfortunately many still fail to heed the warnings and contact international family law counsel after the fact.

Foreigners who intend to marry Saudi nationals or to live in Saudi Arabia should be warned that their “family law” rights are likely to be extremely limited, especially if they have children and especially if their spouse is a Muslim man.

We have represented numerous clients of various nationalities and faiths who have been in Saudi Arabia.

While we have worked with Saudi counsel it is necessary to report that the level of discrimination against foreigners and non-Muslims in Saudi Arabia at all levels of society, including the highest, is extreme and creates great danger for foreigners and most especially for foreigners with children.

Merely by way of example, women in a Saudi household cannot leave the country without the permission of the Saudi male head of their household. This applies to foreign nationals just as much as to Saudi citizens.

A foreign parent cannot take her or his children out of Saudi Arabia if the other parent is a Saudi national even if the foreigner has been granted custody rights.

Foreigners holding Saudi work and/or residency permits require an exit visa to depart Saudi Arabia.

Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.

The public display of non-Islamic religious articles such as crosses and Bibles is not permitted.

Women who do not wear a full-length black covering and cover their heads are at greater risk of being confronted by the religious police.

Men and women may not mingle in public unless they are family or close relatives. The religious police may demand proof that a couple is married or related. Women who are arrested for socializing with a man who is not a relative may be charged with prostitution.

Women are not allowed to drive or ride bicycles on public roads in Saudi Arabia.

In substance if “family law” means a law that protects the family, there is no family law in Saudi Arabia.

India and International Child Abduction

2011-12-16T09:08:00.000-08:00

Newspapers around the world have carried an article entitled “Japan, India pressed to curb child abductions” that calls attention to the fact that both countries violate human rights norms by failing to provide remedies for international child abduction. The articles describe the circumstances of several of my clients and state that,

“Jeremy Morley, a New York lawyer who specializes in international family law, says India is ‘a safe haven for child abductors" in part due to its slow-moving court system.’

‘An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India,’ Morley writes on his Web site.”

Japan, India pressed to curb child abductions

AP foreign, Tuesday December 7 2010

NEW YORK – Japan and India are among America's most prized allies. Yet to scores of embittered parents across the U.S., they are outlaw states when it comes to the wrenching phenomenon of international child abduction.

The frustrations of these "left-behind" parents run deep. They seethe over Japan's and India's noncompliance with U.S. court orders regarding children taken by the other parent to the far side of the world, and many also fault top U.S. leaders for reluctance to ratchet up the pressure for change.

"If they really made it an issue to solve these cases, I believe they could be resolved tomorrow. ... They don't have the will," said Christopher Savoie of Franklin, Tenn.

Savoie was arrested in Japan last year, and spent 18 days in custody, after a failed attempt to reclaim two children taken from Tennessee by his ex-wife in violation of a U.S. court order.

More than 80 nations have signed an accord aimed at curtailing such incidents, but only a handful of Asian countries are among them. Of the continent's non-signatories, Japan and India pose the biggest problem for the U.S. — accounting for more than 300 cases, involving more than 400 children, opened by the State Department since 1994.

The State Department says it cares deeply about international parental child abductions, which its experts believe will increase as binational marriages become more common.

The department has boosted the staff dealing with abduction cases from 18 to 65 over three years, and says it is working harder than ever to convince Japan and other Asian allies to sign the 1980 Hague Convention on international abduction.

The department's special adviser on children's issues, Susan Jacobs, and its top official for Asia, Assistant Secretary of State Kurt Campbell, have raised the topic on multiple occasions. Campbell used the word "kidnapping" in protesting the many cases in Japan where mothers living overseas with foreign husbands returned home with their children and kept the fathers from having contact with them.

"This is a hard job — we don't get as many successes as we want," said Stefanie Eye, chief of the State Department's Eastern Hemisphere abductions division. "We want every child in the right place." ….

Many times previously, Japan has said it would consider signing the Hague Convention, but it also has expressed concern that doing so might leave some Japanese women and their children vulnerable to abusive foreign husbands.

Stefanie Eye said that in Japan, unlike many Western countries, it's accepted practice that only one parent — usually the mother — has custody of a child after a divorce. That leaves many fathers, including foreigners, unable to see their children until they are grown up because of lack of visitation rights.

"Part of what we're doing is offering the Hague country perspective of why it's important for children to have access to both parents," Eye said.

The State Department says it knows of no cases where a child taken from the U.S. to Japan by one parent has been ordered returned to the U.S. by Japanese courts.

There has been some progress elsewhere in Asia, Eye said. She cited an announcement by Singapore that it will sign the Hague Convention and a preliminary indication by South Korea that it will do likewise.

"We're seeing a lot of movement," she said. "We're waiting for someone to stand out and be a leader."

For the moment, India shows no signs of being that leader. Though a national law commission recently recommended that India sign the Hague Convention, the government hasn't signaled that this will be a priority, and an External Affairs Ministry spokesman, Vishnu Prakash, told The Associated Press in New Delhi that he had no comment on the issue.

"This government is not really interested in ensuring the children's rights," said Bharati Ali, co-director of HAQ — a non-governmental children's rights group in India.

The State Department's assessment is blunt.

"Once a child has been abducted to India, remedies are very few," says an official advisory. "India does not consider international parental child abduction a crime, and the Indian courts rarely recognize U.S. custody orders, preferring to exert their own jurisdiction in rulings that tend to favor the parent who wants to keep the child in India."

Jeremy Morley, a New York lawyer who specializes in international family law, says India is "a safe haven for child abductors" in part due to its slow-moving court system.

"An abductor has ample time to create facts on the ground in terms of getting the child sufficiently settled into life in India as to justify an Indian court in ultimately deeming that it is best to keep the child in India," Morley writes on his Web site.

The California-based Rakshak Foundation has tried to help numerous Indo-American fathers entangled in cases of alleged child abduction.

Among them is Avinash Kulkarni, 45, of San Diego, who says his son — then 6 months old — was taken back to India by his ex-wife in 1990, and 18 years passed before he saw his son again. He said he won a civil case against his ex-wife in 2001, but made no headway with the Indian legal system in his efforts to make see his son.

"In India, the whole concept of human rights and fairness is nonexistent compared to here," he said. "Fighting that is a losing battle. ... I lost my prime years trying."

Another father, Vipin Gopal, said he has been unable to exercise custodial and visitation rights granted by courts in Connecticut after his daughter was taken to India by his ex-wife four years ago.

He hopes the U.S. intensifies pressure on India to cooperate as part of the broader efforts to expand bilateral ties.

"Recently, during a visit to India, the Obama administration negotiated multibillion dollar trade deals and supported a U.N. Security Council seat for India," Gopal said. "But if we can't negotiate with India about the basic rights of our own children, that's where America as a nation fails."

Rex Arul, an energy consultant from Smyrna, Ga., is trying to regain custody of his 3-year-old daughter, who was taken back to India in July by his wife, a corporate attorney, in the midst of wrangling over a divorce. Arul says he subsequently obtained a U.S. court order awarding him custody, but is not optimistic.

"The cards are stacked against me," he said. "The Indian courts always say the priority is the child's best interest, but in the end it's always rewarding the abductor."

English Criminal Law in International Child Abduction Cases

2011-12-15T07:21:00.000-08:00

Courts, prosecutors and the police are often reluctant to apply criminal law in international child abduction cases. They feel that such cases are mere family disputes that should be resolved privately or through the civil courts.

In many cases this view is naïve and it can be extremely harmful.

Now the English Court of Appeal has demanded stronger enforcement of criminal laws against international child abduction, full punishment for the commission of such offenses and new legislation to allow for longer jail terms.

On the appeal of two cases in which fathers had abducted their children and taken them overseas, where they had retained them for several years, the English Lord Chief Justice, Lord Judge, described child abduction as “an offence of unspeakable cruelty.” R v Kayani and Solliman [2011] EWCA Crim 2871. He insisted that a plea for mitigation based on a “right to family life” was “misconceived”, both at common law and under Article 8 of the European convention on human rights. He said that “We can see no reason why the offence of child abduction should be placed in a special category of its own when the interests of the children of the criminal fall to be considered,”

The fathers had been sentenced under the Child Abduction Act 1984, which provides for a maximum seven-year sentence.

Not only were the jail sentences upheld but the Court of Appeal suggested that child abduction should be treated as kidnapping and that the maximum sentence should be increased beyond seven years, to as long as a sentence for life. Previously courts had refused to treat parental child abduction as subject to equal punishment as kidnapping. The Court of Appeal overturned prior precedents. Lord Judge insisted that a discrepancy in sentences between child abduction and kidnapping was “illogical”. He stated that “Our view is clear. Simply because the child has been abducted by a parent, given current conditions, it no longer necessarily follows that for policy reasons a charge of kidnapping must always be deemed inappropriate. To that extent the observation of the court in R v C has been overtaken by events and has no continuing authority.”

Expert Testimony As To International Child Abduction And Other International Family Law Issues

2011-12-01T20:48:00.000-08:00

International family lawyers are frequently called upon to act as an expert witness concerning international child abduction and other family law issues.

Such testimony can be of vital importance. Unfortunately many family lawyers and their clients often do not recognize the potential value of such testimony.

Exert testimony can make the difference in a case in which a parent who fears a potential international child abduction seeks to prevent a child from being taken to another country. Often the issue is whether the legal system in the country to which the child may visit or to which the child may be abducted has a reliable legal system that will recognize and enforce U.S. custody orders or will promptly return a child under the Hague Abduction Convention.

Expert testimony may be decisive in international relocation cases, in which the issue is whether the courts in the country to which a child's relocation is requested will provide recognition and prompt enforcement of child access orders issued by the courts in the child's current residence.

Thus, this author has presented expert testimony as to the dangers that might result if a child were taken to and retained in Japan, China, Taiwan, Russia, Morocco, Hungary, Jordan, Morocco, Saudi Arabia, Mexico, Malaysia, the UAE (Dubai) and Bulgaria, as well as other countries. He has also presented testimony as to the strength and effectiveness of the legal system in other countries such as England, Italy and Germany.

Expert testimony can also be useful as to the red flags that might show that a person is likely to abduct a child internationally.

It can also be useful on the issue of whether a parent's activities are in violation of the federal International Parental Kidnapping Crime Act.

The author has also provided evidence concerning the anti-dowry law in India, otherwise known as the "498-A" law; as to whether the courts in England or the United States should hear a divorce case; as to the terms that should be included in a visitation order in order to reduce the risk of international child abduction; and as to the potential recognition in a U.S. court of divorces issued by certain foreign countries.

Some specific examples are as follows:

- In a case in the Superior Court in DeKalb County, Georgia this author provided expert testimony at the request of a father as to the law and practice in China as to international child abduction and international child custody. The case concerned two Chinese national who lived in Georgia with their child. The mother was about to be deported because she had no immigration visa. She asked the Court for custody of her child and the right to relocate with the child to China. The father believed that the Chinese legal system would not help him to see the child if the mother's application were granted. The Court gave "great weight" to this author's testimony and as a result decided the case in favor of the father.

- In a case in the Superior Court in Toronto, Ontario, Canada the author provided expert evidence as to the family law of India. The case concerned two parents of Indian origin, one of whom wanted to take their child for a visit to India. The father believed that the child would never be returned home to Canada if a visit were authorized, notwithstanding the mother's promises to do so. The Court relied almost entirely on the author's opinions, described as "a detailed and helpful affidavit" which "unequivocally outlined" the hazards of any visit to India and provided a "sobering warning" of such risks. Consequently the court ruled in favor of the father and barred the proposed visit.

- In a case in the Supreme Court, New York County, the issue was whether to permit a proposed visit of a child living in New York to the country of Italy. The author testified that Italy was fully compliant with the Hague Convention on the Civil Aspects of International Child Abduction. Opposing expert testimony was also presented. The Court accepted the author's testimony and the visit was authorized.

The evidence that is required in such cases can often be supplied remotely. The author has testified in person in several U.S. states but he has also been permitted to testify as an expert witness in cases throughout the United States, as well as in Canada, Australia and New Zealand, either by affidavit or telephone or video.

Child Abduction Victory Does Not Signal a Change in Japan’s “Do Nothing” Approach to International Child Abduction

2011-11-22T07:49:00.000-08:00

My client, Moises Garcia, may be about to achieve the impossible: bringing a child abducted from the United States to Japan back home from Japan by means of the legal system.

But let no one be mistaken. It was the legal system in the U.S. – and some unusually good luck – that did the trick, not the Japanese legal system.

While Dr. Garcia tried his utmost – and at substantial expense -- to secure the assistance of the Japanese legal system, the courts in Japan did nothing to help him and did everything to hinder his efforts, while paying lip service to his plight.

The Japanese courts purported to acknowledge that he had custody of the child, which he had been awarded in Wisconsin, where the child was born and lived, but then decided that the child should stay in Japan with her Japanese mother because by that time the delays had been such that she had already been in Japan for a significant period of time.

It is reported today that the child's mother has now entered a plea agreement, after having spent several months in jail in Wisconsin, pursuant to which she agrees to have the child returned to Wisconsin by Christmas.

The only reason that this case appears to have had a successful outcome is that the mother left Japan (without the child) and entered the U.S., traveling to Hawaii to renew her green card. She was then arrested in Hawaii because of the actions taken by my client's legal team in Wisconsin.
This case does not signal any change in heart on the part of the Japanese legal system. Anyone who understands what has really occurred here will conclude that the mother would have gotten away with her abduction if she had stayed in Japan.

The Japanese courts are not ready to take any action in any such case and they have never done so. That will not change even when Japan signs the Hague Convention on international child abduction unless and until the entire family law system is overhauled and until Japanese society recognizes that kids are entitled to two parents even if parents are divorced.

_________________

The Law Office of Jeremy D. Morley has represented very many parents whose children have been abducted to Japan, as well as children abducted to other countries throughout the world. We also represent many parents who fear that their children may be abducted overseas and seek assistance in preventing a potential abduction. We may be reached at jmorley@international-divorce.com and through www.international-divorce.com

Victory in Preventing an International Child Abduction

2011-11-16T13:46:00.000-08:00

To the overwhelming elation and relief of our client, a terrified and panic-stricken Chinese mother, we succeeded recently in having a baby intercepted at an airport exit gate as his father was about to abduct him from the United States to India.

Mother’s joy at being reunited with her lost child capped our office’s relentless two-week search.

The family – a Chinese mother, her American husband and their dual national child – were living in China. After an argument between the spouses, the father grabbed the child and threatened to take him to the States. The Chinese police and then the Hong Kong police were completely unhelpful. The father then took the baby to an undisclosed location in the United States. That is when the mother called us from China, desperately scared and frantic.

We got word that the father was in California and with the help of local counsel and others there we secured an ex parte temporary custody order and restraining order in favor of our client.

We assisted the mother to obtain an emergency visa allowing her to fly to the States.

We then learned that the father was in Arizona near the Mexican border and we sought emergency police assistance there.

We then received some information that the father was ticketed for a flight to India. We suspected that India had been chosen because, as we have long warned, India is a well-recognized haven for international child abduction.

Just minutes before the plane left we succeeded in having the police at LAX pick up the child at the departure gate for the flight to India.

And just a few minutes later the child was safely in our ecstatic client’s arms.

The successful outcome resulted from enormous emergency effort in working with courts, police forces across the country, the State Department and other agencies.

It was frustrating, expensive and extremely nail-biting, most especially for the distraught mother.

And we were very lucky.

But the entire process was completely unnecessary.

If the United States would heck who leaves this country we could prevent international child abductions.

Unlike most other countries the United States has no exit controls (with minimal exceptions). Laws that require the United States to impose such controls have never been effectuated.

The measures that exist in the United States to prevent and deter international child abduction are minimal to nonexistent. Those laws that do exist are extremely hard to implement. Court orders barring cross-border travel are routinely violated. Laws that require dual nationals, including children, to possess a U.S. passport when leaving the U.S. are ignored. Amber alert programs are reserved for the most outrageous death-threat type of cases. Police forces don’t want to handle matters that concern child custody issues.

Even when an abduction is clearly in progress the resources that are available to assist parents are negligible.

We control who enters this country but we leave the doors wide open for any to leave – and to take whoever they wish with them, whether that is a child or anyone else.

U.S. Arrest in Japanese Child Abduction Case

2011-11-02T08:04:00.000-07:00

The article below just published in the Mainichi newspaper in Japan illustrates the continuing terrible problems with international child abduction to Japan.
The left-behind father is my client and I will not comment on the case except to say that:

(a) The facts have been utterly distorted and misstated in the Japanese press, which is what usually happens in these cases, and

(b) The Japanese legal system has again proved itself to be entirely dysfunctional in the area of international child abduction, which will certainly not be corrected by Japan’s signature to the Hague Convention.

Mainichi Japan, October 27, 2011

Japanese ex-wife arrested in U.S. on accusation of making off with child

A Japanese woman has been arrested in Hawaii on accusations she took her 9-year-old daughter with a Nicaraguan ex-husband back to Japan without permission, it has been learned.

The 43-year-old Japanese mother and her 39-year-old ex-husband, who lives in the United States, have custody disputes over the child ongoing in both Japan and the U.S. The Foreign Ministry says that it is highly unusual for a Japanese national to be arrested abroad during a custody dispute with a foreign ex-partner.

According to legal officials and the Ministry of Foreign Affairs, the woman married and bore the child in February 2002. She lived in the state of Wisconsin in the U.S., but in February 2008 she returned to Japan with the child. In June 2009 her divorce was finalized, but the father was given custody rights.

The woman went to court in Japan to have the custody rights changed, and in March this year the court awarded them to the woman, giving the father just 30 visitation days a year in the U.S. Both sides immediately appealed the ruling, and the case is now being deliberated at the Osaka High Court.

The woman flew to Honolulu on April 7, 2011 local time to renew her permanent U.S. resident status. However, an arrest warrant for the woman was on issue from Wisconsin authorities for violating the father's custody rights by taking the child to Japan without permission, and the woman was arrested by Hawaii authorities. She remains in custody, and a trial is ongoing in Wisconsin. Prosecutors suggested a plea bargain where she would be given a suspended sentence in exchange for returning the child, who currently lives with the woman's grandparents in Japan, but she has refused and maintains her innocence.

The ex-husband has reportedly said that if the woman will return the child, he does not want her held further, and he wants the child to be able to meet both parents. A lawyer for the woman, however, says that she fears that if she returns the child once, the child will never be able to come back to Japan.

According to the Ministry of Health, Labor and Welfare, records of Japanese international marriages since 1992 show a peak in 2006 of around 44,700, after which they have been declining, with around 32,000 in 2010. On the other hand, Japanese international divorces have increased, peaking at about 19,400 in 2009. International divorces are accompanied by unique problems like differences in national law, children's nationality and parental custody rights, and people leaving the relevant countries.

Professor Takao Tanase of Chuo University's law school says, "The Hague Convention on the Civil Aspects of International Child Abduction's primary objective is to get the child in such disputes returned to the country they were taken from, and therefore civil-level procedures to return the child are prioritized. If the child is returned, criminal legal action is often not pursued. If Japan joins the convention, I think that there will be fewer cases that lead to arrests."

Mirror Orders to Help Prevent International Child Abduction

2011-10-06T09:51:00.000-07:00

This article appears in the October edition of New York Family Law Monthly:
Mirror Orders to Help Prevent International Child Abduction

October 2011

Mirror Orders to Help Prevent International Child Abduction

By Jeremy D. Morley

So-called "mirror" orders can be a useful tool in the arsenal of lawyers who handle cases concerning international child travel and the prevention of potential international child abduction. So, what exactly is a mirror order, and how can it be employed to protect your client’s parental interests?

The Typical Case

Increasingly, courts are being asked to enjoin parents from taking children overseas because of the other parent’s fear that the children will not be returned. Courts must take such applications extremely seriously, especially if a child is likely to be taken to a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, or that does not return children promptly to their habitual residence. On the other hand, it is also well-recognized that children have an interest in seeing the world. In addition, children with a foreign parent should be encouraged to learn of their overseas heritage and to get to know their family members who live at a distance.

A potentially left-behind parent’s application for an injunction is usually supported by: 1) Expert testimony as to the practices and laws concerning international child abduction and international child custody in the country to which the child may be taken; 2) Expert testimony as to the "red flags" or "risk factors" that research establishes are the indicia that a particular parent might indeed abduct his or her child; and 3) Lay testimony as to any facts that establish the existence of any and all such risk factors.

In those cases, a judge will invariably ask a basic question: "What conditions can I include in my order that will minimize the risk that the child will not be returned?" Unfortunately, the true answer is often, "None." This point is evidenced by the epidemic of "successful" abductions to countries such as Japan, frequently in flagrant violation of court orders.

The Mirror Order As Insurance

In many cases, a court faced with a parent who wants to take a child overseas and a left-behind parent who fears the child will not be returned should require the traveling parent to obtain a "mirror order" from a court in the foreign jurisdiction before being allowed to take the child overseas.

A mirror order is one that is issued by another court and contains the same terms as those that are contained in the order that is being mirrored. Inherent in the mirror order concept is the fact that the foreign court shall have the right — and more importantly the obligation — to enforce the terms contained in the order, specifically including the obligation to effectuate the prompt return of the child at the end of a designated period of time. Equally critical is that the foreign court should not be permitted to modify the original order.

Will It Be Enforced?

The viability of a requirement that the foreign country’s courts enforce these mirror orders varies substantially from country to country. By way of example, a very recent decision of the Supreme Court of India (Majoo v. Majoo, (2011) INSC 515) made it clear that the courts in India will not allow mirror orders to be entered in child custody matters and that they will always conduct a full plenary review of the child’s best interests (which invariably equates to a decision that the child — who, by the time of the ultimate decision has typically been in India for some years — should remain in India).

It is also obvious that a court in Japan, even in the utterly unlikely event that it were to issue a mirror order, would not enforce the terms of any such order since its family law system is toothless and its orders are invariably not enforced. See www.international-divorce.com/Japan-Child-Abduction-police-hurt.htm.

By contrast, a country such as Australia has a custody registration system that operates in a very similar way to the system of registration of foreign custody orders in the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). However, Australia is very much the exception rather than the rule. The European Union has a registration system, but it applies only to orders issued by an EU court, and the practice within Europe varies substantially from country to country.

Indeed, foreign lawyers are generally shocked and amazed when they learn of the registration provisions in the UCCJEA. In particular, they are often shocked that a U.S. court will generally have exclusive continuing jurisdiction for many years after a child has left the jurisdiction as long as one parent continues to live there.

In the case of W v. W (Minor) (Mirror Order) (2011) EWCA CIV 703, the issue was recently before the Court of Appeal in England. (Since that court is headed by a judge who is also that country’s "Head of International Family Law," its decisions on such issues are far less likely to be parochial than similar rulings from some courts in the United States and many other countries.) In W. v. W., the child in question was living in Malaysia. A Malaysian court awarded custody to the father, an English national, and contact to the mother "at reasonable times." The father then asked an English court for a mirror order so that he could apply for a British passport for the child. However, the English court not only issued a mirror order, but it also granted the mother’s application to reopen the entire case. On appeal, the English Court of Appeal ruled that the trial court had been right to issue the mirror order but wrong to claim any broader jurisdiction. It made clear that a litigant who seeks a mirror order does not accept the jurisdiction of the court to do any more than reiterate the provisions of the order issued by the primary jurisdiction. By definition, an application for a mirror order cannot supplant the primary jurisdiction. The court ruled that if the mother wished to challenge the order or seek specific contact, she should apply in Malaysia.

Making the Application

Lawyers bringing applications to enjoin children’s foreign travel, and lawyers opposing such applications, need to tailor their presentations. Their proposals should address the specific laws, procedures, customs and practices concerning international family law, international child custody and international child abduction of the specific country or countries that the child is to visit.

The next consideration — a highly important but often overlooked one — is this: Once the child is taken to the agreed-upon country, where may he subsequently be taken? After all, once a child lawfully enters one country, local laws may make it very simple for that child to be moved to another country. For instance, once a child is in any European country that is within the "Schengen Zone," he or she may be taken to any other such country without passing through any passport control.

It is also important to understand that merely because an American court conditions an event upon a foreign mirror order, the foreign court might not have jurisdiction to issue any such order.

That situation arose in Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002), in which a district court in Massachusetts acted on the mistaken assumption that a Swedish court would provide a stipulated mirror order. In fact, the Swedish court refused to do so.

Another critical factor is that once a child is taken into a foreign country, it may be extremely difficult to bring him or her home. Many countries have stringent exit controls that require the written consent of both parents or a sole custody order to remove a child. This is particularly the case with South American countries. Even if a U.S. court issues the requisite order, it may have no effect in a foreign country; even if ultimately effective, the lack of a local court order might cause significant border delays.

When a Mirror Order Is Hard to Get, Get Tough

In my office, issues have arisen when parents seeking to take a child out of the country claimed they could not obtain a mirror order. What then?

One of our clients was legitimately worried that a child would be retained in Bermuda if the father took him to visit his family there. Upon our advice, the client negotiated a strong New York consent order that specified that New York had continuing exclusive jurisdiction, that contained a host of other protective clauses and that permitted a visit to Bermuda only if a mirror order were first obtained. Subsequently, the father asserted that he had been unable to obtain the requisite mirror order from the Bermudan courts. As a result, the Family Court authorized a visit without the mirror order. We successfully obtained from the Appellate Division, First Department, an emergency order barring the scheduled visit.

Another client settled an action under the Hague Abduction Convention by agreeing to limited and supervised visitation between the father and the child in Quebec, Canada, conditioned on the child’s prompt return to New York. We insisted that a mirror order be obtained from the Quebec courts before any visit could occur. Again, the father reported difficulty on obtaining the required order, which led to a delay in the scheduled visitation. Only when the mirror order was in place did visitation in Canada successfully occur.

When to Seek a Mirror Order

In my capacity as an expert in international custody issues, I have sometimes suggested, as part of my written expert evidence or expert trial testimony, that a mirror agreement would be futile because the family law system of the foreign country could not be relied upon to enforce the mirror order. For example, I recently so testified in a case concerning a child’s travel to China.

In other cases, I have testified that a mirror order might be a good idea because it would provide useful additional security for the prompt return of the child if the parent taking the child for an overseas visit were to keep the child there. I have testified to this effect in cases concerning travel to Italy and Hong Kong, because the family law systems in those jurisdictions are reliable and effective.

In conclusion, depending on the circumstances, mirror agreement requirements may be useful, but they may also be counter-productive if they induce a false sense of security. They should never be requested or opposed except by counsel having full knowledge and understanding of international family law.

________________________________________

Jeremy D. Morley, a member of this newsletter’s Board of Editors, concentrates on international family law. He may be reached at 212-372-3425. He is the author of the treatise, International Family Law Practice. His websites are www.international-divorce.com and www.internationalprenuptials.com. Access his blog at www.internationalfamilylawfirm.com.

United States Criminal Laws Concerning Passports

2011-09-23T07:30:00.000-07:00

Follow this link to a new article appearing on our website concerning criminal laws involving passports:

U.S. Criminal Laws Concerning Passports

Russia Accedes to Hague Child Abduction Convention

2011-08-02T06:36:00.000-07:00

On Thursday, 28 July 2011, the Russian Federation deposited its instrument of accession to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Convention will enter into force for the Russian Federation on 1 October 2011.

The treaty will not be in force between Russia and The United States until the United States has accepted Russia's accession.

As is the case with many countries, including the USA, Russia has made a reservation with respect to Article 26, stating that "The Russian Federation in accordance with Article 42 of the Convention shall not consider itself bound by the obligation to assume costs, as provided for in the second paragraph of Article 26 of the Convention, resulting from the participation of the legal counsel or advisers or from court proceedings, except for those costs that may be covered by its system of legal aid and advice."

Hungary Violates the Hague Convention on Abduction

2011-08-01T06:10:00.000-07:00

Having worked on international child custody matters concerning Hungary for several years, and having consulted with Hungarian counsel on such issues, it is unfortunately clear that Hungary does not comply with its obligation under the Hague Abduction Convention to promptly return children who are wrongfully taken to Hungary or retained in Hungary.

My conclusions have now been reinforced by a decision of the European Court of Human Rights, issued July 22, 2011, in the case of Shaw v. Hungary (a case with which I was peripherally involved).

The problems include the following:

· -Custody and visitation cases are not completed within the requisite time limitations. This is often a result of lengthy disputes on preliminary jurisdictional matters. It is also because of the work overload of Hungarian judges. Consequently it often take eighteen months or more for first and second instance courts to issue a final ruling. The Hungarian Supreme Court’s procedures may then take another year.

· -Hungarian courts frequently misinterpret the Hague Convention’s terms, such as “habitual residence,” in favor of the taking parent.

· -There is no effective procedure within Hungary to enforce court custody orders. Pursuant to the governing Hungarian legislation, the enforcement of final and effective judicial custody and visitation decisions is not within the competence of the court handling the Hague case. The body that is responsible for enforcement cases is the local “Custody Authority.” The Custody Authorities do not have sufficient coercive power and their procedure is slow and inefficient. As a result, even a favorable Hague decision is often completely futile because it is not enforced.

· - It typically happens that if, as and when enforcement is finally employed, the taking parent cannot be found. The “bailiff” cannot issue a search warrant with criminal consequences but merely reports the matter to the police.

· -Hungary will not recognize and enforce foreign custody orders.

· -The passage of time in such circumstances typically leads to the child becoming well integrated into the new environment, which helps to create new defenses for the taking parent.

· - It is common for the taking parent to successfully preclude the left-behind parent from having any contact with the child during the lengthy court proceedings, thereby enabling a psychologist to subsequently declare that there would be a “grave risk” of harm to the child if the child were sent back to the former residence, especially if tha taking parent were not to accompany the child.

In the Shaw case the European Court of Human Rights ruled that Hungary had violated its obligations under the European Convention on Human Rights by failing to diligently process a Hague case brought by an Irish father to secure the return of his child from Hungary to France, where they lived, following the parents’ divorce.

A court in Pest, Hungary ordered the child’s return and two appeal courts upheld the return order. The local bailiff twice unsuccessfully called on the mother to comply voluntarily with the court’s order. Meanwhile, a French court issued a European arrest warrant for the mother for the offence of change of custody of a minor. She was then arrested in Hungary but was promptly released by the Budapest regional court on the ground that similar proceedings were pending before a Hungarian court. The mother then disappeared with the child and has not been located.

The father complained to the European Court of Human Rights that the Hungarian state had violated his rights under article 8 of the European Convention on Human Rights, upholding private and family life, by failing to take timely and adequate measures for him to be reunited with his daughter.

The Hungarian government claimed that it had had done everything possible to ensure the child’s return to her habitual place of residence, but the absconding of the mother with the child had temporarily prevented the authorities from taking further measures.

In its judgment, the Court noted that 31 weeks had elapsed since the first claim before the Hungarian courts and their final decision, contrary to the obligation under the Hague Convention to issue a judgment within six weeks. It found that that alone amounted to a violation of the Hungarian state’s obligations under the Convention.

The Court also found that the authorities also failed to take adequate and effective measures to enforce the return order for almost 11 months after the delivery of the final enforceable judgment and that no attempt was made to enforce the return order on the day when she was finally arrested.

Finding that the Hungarian state had violated the father’s rights to family life, the Court ordered the payment of €20,000 for the anguish and distress he had suffered as a result of the insufficient measures taken by the Hungarian authorities and awarded €12,000 for legal and related expenses.

Expert testimony: Chinese Family Law and Potential International Child Abduction to China

2011-07-24T15:22:00.000-07:00

In what the Court described as a “very difficult case” between two Chinese parents living in Georgia -- one of whom (the child’s mother) faces deportation to China for lack of an immigration visa and had asked the Court to give custody of the parties’ child to her and to authorize her to relocate the child to China – the Court relied upon my expert testimony as to Chinese law and practice concerning child custody and child abduction in cases of an international dimension. Zhang v. Zhang, DeKalb County Superior Court, 7-14-11.

The Court twice stated that it was giving “great weight” to my testimony.

Thus it stated that, “from what the Court has heard from Mr. Morley, whom the Court has given great weight” and “I have to also balance that with the facts presented by the defense by Mr. Morley -- who the Court gives great weight to his testimony –.”

The ultimate decision gave custody to the father in the United States and followed my suggestion that any visitation with the mother outside the United States should be in a country such as Singapore or Hong Kong with a reliable legal system and which was a party to the Hague Abduction Convention.

The case shows that those countries who have not signed the Hague Convention on child abduction and who do not have an independent and reliable family law system are rendering a grave disservice to their own citizens.

Since the Chinese legal system cannot be trusted to return internationally abducted children, Chinese nationals who reside with their children outside China should normally not be permitted to take their children to visit China if the potentially left-behind parent objects.

Korea and International Child Abduction

2011-07-16T14:02:00.000-07:00

Korea is not a party to the Hague Abduction Convention. The United States is now consistently urging Korea to join the international community in signing the Convention.

The article below presents the United States position.

May 02, 2011

Korea should ratify the Hague Abduction Convention to help resolve international child abduction by parents.

By Cynthia Sharpe, Consul General and Minister Counselor for Consular Affairs for the U.S. Embassy in Seoul.

As a 21st century regional and global leader, countries around the world look to Korea as a role model. Korea’s commitment to cooperate with other nations in the peaceful and orderly adjudication of legal disputes is an influential example of responsible global citizenship. Few, if any issues are more important than the protection and welfare of children.

Korea’s ratification of the Hague Convention on the Civil Aspects of International Child Abduction, an important tool of international cooperation on cases involving the separation of parents and children, would be a strong statement on the importance of protecting children.

In this era of modernization and globalization, a growing number of people from different cultures are forming families and welcoming children into their lives. Unfortunately, a small percentage of those relationships end acrimoniously, with parents facing difficult decisions on how to meet their child’s fundamental need for parental contact and support, while balancing their own needs as they adjust to the reality of a broken relationship.

When one parent deprives the other parent of access to their child by abducting the child to another country without their permission, it is referred to as “International Parental Child Abduction.”

International Parental Child Abduction is a tragedy that not only deprives and jeopardizes children but has substantial long term consequences for the parent, and family members left behind.

Children who are abducted by one parent and taken to a foreign environment are suddenly isolated from the security of a familiar environment, extended family, friends and classmates. They are at risk of serious emotional and psychological problems in their sudden isolation, often believing they have been abandoned by one of their parents.

Similarly, the parent who is left behind copes with feelings of betrayal, loss, anger and depression. When their child has been taken to a foreign country, the parent left behind is faced with unfamiliar legal, cultural and linguistic barriers that compound emotions of helplessness, loss and grief.

To protect the rights of parents and children throughout the world, nations came together in 1980 to sign The Hague Abduction Convention. This Convention created an agreed civil legal mechanism available to parents seeking legal remedies when their children have been taken to other countries without their consent.

The Abduction Convention does not address who should have custody of the child, or where the child should live.

It addresses the question of under which legal jurisdiction a parental child custody case should be decided. Under the Hague Abduction Convention, it is generally held that the country of the child’s habitual residence is determined to be the appropriate jurisdiction where the legal authorities in that country should make a parental custody decision in the best interests of the child.

The Hague Abduction Convention exists so that nations with diverse legal frameworks can work together to solve international legal disputes. Korea is a Hague member country and has already ratified several other Hague Conventions, including the Convention on Abolishing the Requirement of Legalization for Foreign Public Documents and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.

Utilizing the Hague convention process in International Parental Child Abduction cases assists in bringing a swift conclusion to the separation between a child and his parents and lessens the significant emotional and psychological damage caused by the unlawful international parental child abduction.

Korea recently naturalized its 100,000th foreign-born citizen. The vast majority of the naturalized citizens came to Korea within the last 10 years. The number of foreign citizens living and working in Korea surpassed the one million mark for the first time in 2010.

Korea’s increasingly multicultural and diverse society will soon encounter many more situations in which Korean citizens, both children and parents, will be negatively affected by the anguish caused by international parental child abduction.

Without a legal mechanism such as The Hague Abduction Convention to address this heartbreak, Korean parents could be separated from their own children with little possibility of resolution.

By showing the foresight and wisdom to address this issue, Korea demonstrates it is both a citizen of the international community and a trailblazer for progressive civil society in East Asia.

Prenuptial Agreements in Japan

2011-07-14T05:30:00.000-07:00

By
Jeremy D. Morley

We have represented many international clients who have entered into marriage contracts or prenuptial agreements with Japanese spouses. We always work in collaboration with Japanese counsel in such matters as appropriate and as instructed by our clients.
Prenuptial agreements are not common in Japan. They have never been a part of Japanese culture, even for the upper classes.
• A cynic would say that wealthier spouses do not demand a prenuptial agreement because they believe that if there is a divorce they will be able to avoid disclosure of their assets or divert their assets and that they will be able to pay a relatively modest amount to their spouse to settle the matter so as to avoid litigation, which is extremely uncommon and extremely unhelpful in family matters.
• Others might say that prenuptial agreements are inappropriate because they contemplate a divorce when a marriage implies a lifelong commitment.
There is a dearth of useful Japanese case law concerning the validity of specific clauses in a premarital contract or the effect of such a contract.
Nonetheless it is accepted that prenuptial agreements are generally enforceable in Japan, provided they are well drafted and in conformity with the provisions of the Civil Code and other provisions of Japanese law.

In Japan, Article 26 of the Act on the General Rules of Application of Laws (http://www.international-divorce.com/horei_law.htm) authorizes spouses who marry in Japan to choose which matrimonial law regime will govern their marriage, provided it is either the law of the country of either spouse’s nationality or habitual residence or, regarding immovables, the law of the location of the immovables. The same law also specifies that prenuptial agreements are valid when made under the provisions of a foreign law, and sets forth a provision for registration of foreign prenuptial agreements in Japan.

The Japanese Civil Code also contains important provisions that authorize prenuptial agreements. Article 755 provides that, “The property rights and duties of a husband and wife shall be prescribed by the following subsections, unless they entered into a contract setting forth otherwise, regarding their property before giving notification of the marriage.”

Article 756 provides in essence that registration is needed in order to bind third parties but not in order to bind the spouses themselves.

Forum selection clauses are widely upheld by Japanese courts. Their validity in prenuptial agreements that preclude the jurisdiction of Japanese courts will likely be upheld if the matter in question is not within the exclusive jurisdiction of the Japanese courts, and if the court designated by the agreement would have jurisdiction over the matter in question, independently, under the law applicable in that forum.

While a prenuptial agreement may determine the choice of the marital regime it is uncertain whether terms concerning other matters would be upheld in Japan. The issue often arises with regard to terms that purport to reduce or eliminate future alimony (spousal maintenance) obligations. Alimony per se cannot be awarded in Japan but clients often want a Japanese contract to handle the issue of alimony in the event that a divorce is sought in a court outside Japan. Similar questions arise as to terms designed to limit the inherent power of a court in Japan to make awards to protect the financial wellbeing of a spouse.

It seems to be well accepted in Japan that any prenuptial agreement will be subject to potential review for compliance with Japanese public policy.

Prenuptial agreements for international people residing in Japan, or for anyone marrying a Japanese national wherever in the world the couple currently reside, need to be drafted with great care and international savvy.

The initial decisions that must be made by qualified and experienced international counsel in such situations include:

• Should Japan be the “home” of the agreement or would it be preferable to draft the agreement under another law and then have local but experienced counsel in Japan review the agreement for compliance with local form and appropriateness?

• Should the agreement be in the typical long form of an American prenuptial agreement or should it be a pared-down version that will more likely be understood by a Japanese-speaking spouse, by a Japanese lawyer advising that client and a Japanese court that might be called upon to interpret the agreement?

• Should the agreement contain a choice of court clause as well as a choice of law clause?

• Should the agreement cover spousal maintenance as well as the division of assets?

• Should there be more than one agreement, so that if one fails the other might come into play? If so, which one should have priority and how should that be stated?

Israel’s Religious Divorce Requirement Discriminates Against Women

2011-07-05T10:18:00.000-07:00

Israel’s divorce law requires that Jews in Israel must be divorced only in the Jewish religious courts. Clearly this discriminates against women since only a husband has the right to grant his wife a divorce (a “get”) of his own free will. This religious requirement leads to a host of further discriminatory consequences.

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) has now issued a report concluding that Israeli law in this regard is discriminatory and should be changed.

The Israeli member of the panel, Ruth Halperin-Kadari, -- who is a well-recognized legal scholar and the head of Bar-Ilan University's Rackman Center for the Advancement of Women's Status – reportedly applauds the demand (see the Haaretz article below).

She states that that this is the first time that a UN committee has so clearly stated that Israel must allow civil marriage and should do all it can to end the discrimination against women in family law.

The UN report states that:

"Noting that all Jews in Israel can be married and divorced only in the rabbinical courts, which are male dominated and completely governed by religious law, the Committee is concerned about discrimination against women in the context of divorce in such courts, in that only the husband has the right to grant his wife divorce (the “get”) of his own free will. The Committee also expresses its concern at recent cases of retroactive invalidation of divorce, to the detriment of Jewish women. The Committee is further concerned about the continuing practices of polygamy and under-age marriage of girls that are legitimized under different religious laws governing personal status.

49. The Committee calls upon the State party to:

(a) Introduce an optional system of civil marriage and divorce available to all;

(b) Harmonize religious laws currently governing marriage and divorce with the Convention and eliminate provisions that are discriminatory against women, including by prohibiting the man’s unilateral power to grant the “get”, prohibiting the possibility of extorting concessions from women in return for the “get” as well as the practice of retroactive invalidation of divorces, and by further limiting the scope of rabbinical courts' jurisdiction to matters of marriage and divorce alone;

(c) Ensure that rabbinical court judges are provided with training on the Convention, with special emphasis on article 16 as well as domestic violence;

(d) Take active measures to enforce the prohibition of bigamy and current exceptions under which it is allowed and polygamous marriages, as called for in the Committee’s general recommendation No. 21; and

(e) Take effective measures to enforce adherence to the minimum age of marriage, and, in this respect, take measures to raise the minimum age of marriage to 18 years for both women and men."

The Haaretz article states that:

"UN committee: Israel must allow civil marriage

Haaretz, July 5, 2011

There is no meaningful equality in Israel between men and women when it comes to matters relating to marriage and family relationships, according to a new UN report.
The report was compiled by a panel of experts overseeing implementation of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women. The panel submitted its conclusions to Israeli authorities in February of this year.

The panel, which includes representatives from several countries, receives reports on gender issues every four years. These reports are based on each country's official statistics, as well as reports by non-governmental organizations, and interviews of state officials conducted by the panel members.

Prof. Ruth Halperin-Kadari, who heads Bar-Ilan University's Rackman Center for the Advancement of Women's Status, is a member of the panel. The Rackman Center is about to publish a guide to the international convention and the conclusions of the oversight committee that will include the recommendations made to the Israeli authorities.

"There's a huge gap between rights that are formally granted, and the lack of implementation and enforcement of the laws," said Halperin-Kadari.

Halperin-Kadari added that this was the first time that a UN committee had so clearly stated that Israel must allow civil marriage and do all it can to end the discrimination against women in family law.

The committee also stated that domestic violence and violence against women were still widespread in Israel. The panel also expressed concern over the scope of trafficking in women and the wide income gaps between men and women"

Filing Jointly Can Be Dangerous

2011-06-14T07:32:00.000-07:00

Here is a scary article in the current issue of Forbes concerning the potential dangers of filing a joint U.S. tax return.

Marriage Trap: Before you sign a joint tax return, consider the consequences--and these IRS horror stories.

Robert W. Wood, 06.27.11

www.forbes.com/forbes/2011/0627/money-guide-11-tax-joint-return-irs-wedding-marriage-trap.html

For better, for worse, for richer, for poorer," goes the classic wedding vow. Nothing in that vow requires you to file a joint tax return with your spouse. Yet 95% of married couples check the "married filing jointly" box on their 1040 each year. Even couples with prenuptial agreements and those who hold assets separately routinely file jointly.

Why some do so is a mystery--a mystery that, thanks to Internal Revenue Service policies, can turn into a horror flick worthy of Alfred Hitchcock. True, filing jointly often produces modest tax savings compared with electing "married filing separately" status. But it also means each spouse is 100% liable for all taxes and penalties owed.

So if you're an employee who has the tax owed on your salary withheld from your paycheck and your spouse is self-employed and gets behind on his or her estimated tax payments (a too common occurrence), you're both on the hook for the back taxes.

More egregiously, if one spouse has unreported income, gambles away the tax money, lies about offshore bank accounts or just disappears (even with a paramour), the other is on the hook. Plus, IRS collection agents may come after the wronged spouse first--if that spouse has income and assets that are easier to grab.

Wait a minute. Isn't there some special protection in the law that allows an "innocent spouse" to be relieved of joint tax liabilities? Yes, but the miserly way in which the IRS administers this congressionally created protection means that such a spouse may have to go to court for relief.

Example: In January the U.S. Tax Court overruled the IRS' refusal to grant relief to an impoverished high school dropout who had been physically and emotionally abused by her ex-husband (Stephenson v. Commissioner, T.C. Memo. 2011-16). In another stunning case (Sunleaf v. Commissioner, T.C. Memo. 2009-52) the Tax Court ordered the IRS to provide relief to a 70-year-old disabled and retired nurse who discovered financial chaos after the death of her husband of 38 years, a lawyer. He had hidden his debts from her by having bills sent to a post office box.

But innocent spouses can't always count on the courts, either. Last year an appeals court backed up the IRS' decision to deny relief to Cathy Lantz, a financially unsophisticated woman whose dentist husband was convicted of Medicaid fraud. There was no suggestion she was aware of the fraud or the unreported income from it. But the court said (Lantz v. Commissioner, 7th Cir. 2010) the IRS could deny her relief based on a rule requiring innocent spouse applications to be filed within two years of the start of an IRS collection action. Lantz's husband had said he'd apply for her but died in a prison halfway house before doing so, leaving her with a blown deadline and a $1.3 million tax debt.

Under pressure from Congress the IRS is now reconsidering the application of the two-year rule and might allow additional time in some cases. That's might, not will.

Besides, there's no suggestion the narrow standards the IRS uses to determine innocence will suddenly become more forgiving. So if you want to avoid a potential tax mess, file separate returns. At a minimum run the numbers both ways so you can evaluate whether any joint filing tax savings are worth the risk.

Philippines Divorce Law?

2011-06-02T06:35:00.000-07:00

The Philippines, one of a tiny number of countries to still outlaw divorce, is now engaged in a serious legislative debate as to whether to legalize divorce. The committee on revision of laws has just held its first hearing on House Bill 1799 (An Act Introducing Divorce in the Philippines). One Representative insisted that the divorce bill contravenes a provision in the Constitution concerning the “inviolability of marriage” and the state’s mandate to protect it, insisting that the Constitution would need to be amended prior to any bill purporting to legalize divorce. Another Representative asserted that if divorce is unconstitutional, then annulment and legal separation which are allowed under Philippine law, would also be unconstitutional. Another argument, citing American practices such as Elizabeth Taylor’s six divorces, was that having a divorce law would “open the floodgates for marriages and families to be broken . . . by mere irreconcilable differences.”

A lawyer and law professor, Evalyn Ursua, informed the committee that the country already has a de facto divorce law in the provision for annulment, but she explained that poor couples cannot avail themselves of this because it is expensive and time-consuming. She said that an absolute divorce bill would address the problems of Filipinos abroad. Many Filipinos who work overseas return to the Philippines and find out that their spouse already has another partner. Some obtain dual citizenship to be able to get a divorce abroad because it’s not available in the Philippines. This is pursuant to the statutory provision that where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.

International child abductions up sharply: US official

2011-05-26T13:53:00.000-07:00

By Karin Zeitvogel (AFP) – 22 hours ago

WASHINGTON — International child abductions are "sharply on the rise," the US State Department's official in charge of children's issues said Wednesday as Americans marked Missing Children's Day. Family members abduct more than 200,000 children every year in the United States, and last year nearly 2,000 children were kidnapped by one of their parents and illegally brought into or taken out of the United States, Susan Jacobs, the State Department special adviser on children's issues said. In US fiscal year 2006, 642 children were abducted from the United States by one of their parents, a report released two years ago by the State Department found.

That rose to 794 children for the same 12 months in 2007 and to 1,082 in 2008, according to the report. In 2008, 484 children were abducted to the United States, and only 361 children who were illegally taken out of the United States by a parent were returned, the report said. The rise in international child abductions by parents was "a disturbing trend," Jacobs said. Children who are kidnapped and taken out of their country of usual residence are "at risk of serious emotional and psychological problems," while left-behind parents have to deal with numerous obstacles as they battle to get their children back or even just for the right to see them again, she said. "They confront unfamiliar legal, cultural and linguistic barriers, suffer emotional trauma and face significant and long-term financial costs," said Jacobs, who was appointed last year to head the State Department's Office of Children's Issues (OCI).

The OCI is the central authority in the United States for the 1980 Hague Convention, an international agreement that requires kidnapped children to be returned promptly to their country of habitual residence.
It is also one of the fastest-growing offices in the State Department, "which sadly reflects the growth of international child abduction," Jacobs said. Jacobs was speaking a day after dozens of left-behind parents testified on Capitol Hill about the pain of having a child kidnapped by a spouse, and about parents' frustration in dealing with the OCI. Carlos Bermudez, who has been battling for three years to bring his son back from Mexico where he was taken at the age of one by his mother, said the OCI was unhelpful, mired in red tape, and more concerned with maintaining good international relations than bringing back kidnapped children. The OCI advised him badly, refused to give him legal advice and "essentially set me up for the failure of the Hague application for my son's return" to avoid a "potentially damaging international incident."
"They view American children's loss of their American families and heritage as acceptable collateral damage... We cannot continue to offer up our abducted American children as sacrificial lambs at the altar of pleasant bilateral relations," he said. Jacobs told AFP she was "deeply sorry that parents feel that we are not assisting them because I can assure you, that is our goal -- it's to help them resolve these horrible problems."

Copyright © 2011 AFP. All rights reserved

Link to Article

CNN Article: Japan takes a step closer to reforming its child custody laws

2011-05-23T08:46:00.000-07:00

By Tricia Escobedo, CNN

May 21, 2011 1:17 a.m. EDT

(CNN) -- Bowing to intense international pressure, Japan has taken a step closer to changing its international child custody policies.

The Japanese Cabinet on Friday approved a plan that would bring the country's laws in line with the Hague convention on international child abduction, according to Prime Minister Naoto Kan's office. The plan basically requires an overhaul of Japan's family law system. It would put the Foreign Ministry in charge of the cases related to international child abduction, including finding abducted children, taking measures to prevent child abuse and advising parents on the voluntary return of children, according to a statement from Chief Cabinet Secretary Yukio Edano. The legislation would take into account child abuse, spousal abuse and a parent who faces criminal charges in his or her home country, the statement said. The plan approved by the Cabinet will be considered by Japan's legislature, where it is expected to face some resistance.

Even if it is approved, it could take years before Japan is ready to sign the Hague convention, which calls for the signatories to abide by the court rulings of each member country. Japan has been under intense international pressure to change how it deals with international child custody arrangements, particularly since the case of Christopher Savoie in 2009. Savoie, an American, triggered international news headlines after his arrest on child abduction charges in Japan. His two children had been taken to Japan by his ex-wife, despite a U.S. court order requiring Noriko Savoie to remain in the United States. Savoie traveled to Japan, where he has citizenship, and reclaimed the children, then headed for the nearest U.S. consulate, where he was arrested at the front gate. The charges were later dropped when Savoie agreed to return to the U.S. without his children.

Because Japan is not a party to the Hague convention on international child abduction, Tokyo did not recognize the U.S. court's ruling nor the subsequent arrest warrant for Noriko Savoie.
Savoie's case shone a light on hundreds of other similar situations in which Japanese ex-spouses have taken their children to Japan despite custody arrangements in the United States. Japan's current system does not recognize shared custody, even among the country's own citizens who reside in Japan.
"It's finders keepers -- possession is 99.9 percent of (Japan's) law," explains international family law attorney Jeremy Morley, who represented Savoie. That means it's extremely rare that a child of divorced parents in Japan will spend every other weekend at Mom or Dad's house -- a typical situation for children of divorced parents in the U.S. and other Western countries. "The other parent disappears completely," Morley said.

Morley, who has represented more than 100 parents, most of them fathers, called Friday's decision "a baby step in the right direction" for Japan. But he says that even if the country signs the Hague convention, it will have no effect on Savoie or any of his other clients. "It will certainly not help those people who have thus far lost children to Japan, because it will only take effect when it's put into force," Morley said. "It's definitely not going to be retroactive." However, if Japan truly overhauls its family law system -- instead of making "purely cosmetic" changes to please international critics -- that could bode well for his clients. "If they completely restructure their system so they can enforce court orders and ... have an environment where both parents have a right to participate in the life of their children after separating, that's going to take a long time," Morley said. "If they go through another charade, and the changes are purely cosmetic, that can happen much faster. So I hope, in a way it does take a long time."

The U.S. State Department acknowledges that "abductions to Japan represent one of the largest portfolios in the Office of Children's Issues and are among the most difficult to resolve." Since 1994, there have been 321 children abducted to or wrongfully retained in Japan, it said. None of those cases has been resolved. Morley credits Secretary of State Hillary Clinton with helping put pressure on Japan to change its system. However, he says there is tremendous opposition within Japan to the Hague convention. "There's a prevailing view that the Japanese mothers, who are the ones primarily removing children, are running back home to the safety of Japan because their American husbands are wife beaters," he said. He says he thinks Japan could address this concern by "watering down" any changes it makes to its family law system ahead of signing the Hague convention. Morley and Savoie have denied any physical abuse, and there have not been any charges. This month, a Tennessee court ordered Noriko Savoie to pay her ex-husband $1,000 each day she continues to "falsely imprison" the two children. The primary concern of Japan's government in deciding this matter will be "to ensure the welfare of children," Foreign Ministry spokesman Hidenobu Sobashima said Thursday. "Of course parental rights are important, too, and we should take into account the father's views and the mother's views," Sobashima said. Until then, Morley says, his clients -- even those lucky enough to see their children for an hour or two in a Japanese courtroom once a month -- will continue to be cut off as parents to their children.

CNN's Yoko Wakatsuki and Kyung Lah contributed to this report.

http://www.cnn.com/2011/WORLD/asiapcf/05/20/japan.child.custody.law/

U.S. State Dept. Issues Hague Abduction Convention Compliance Report

2011-05-12T08:15:00.000-07:00

The U.S. Department of State (“Department”), Office of Children’s Issues (CI), U.S. Central Authority has issued its report on compliance with the Hague Convention on the Civil Aspects of International Child Abduction, covering the period from October 1, 2009, through December 31, 2010.

Notable points:

1. St.Kitts and Nevis was determined to be not compliant with the Convention.

2. 2. Bermuda, Brazil, Bulgaria, Burkina Faso, Honduras, Mexico and the Bahamas showed “patterns of noncompliance with the Convention.”

3. 3. 15 countries were “Countries with Enforcement Concerns” in which left-behind parents in the United States have not been able to secure prompt enforcement of a final return or access order during the reporting period. This includes an order resulting from a Hague proceeding; a U.S. custody, access or visitation order; or an access or visitation order by authorities in the country concerned, where the lack of enforcement is because of the absence of prompt and effective enforcement mechanisms, the lack of recognition of comity, or other factors. These countries were Argentina, Australia, Austria, Costa Rica, France, Germany, Honduras, Hungary, Israel, Romania, South Africa, Spain, Switzerland and Turkey.

4. 4. The State Department reported on the appointment of Ambassador Susan Jacobs as the first Special Advisor for Children’s Issues and her efforts to encourage Armenia, Bangladesh, China, India, Japan, Laos, Nepal, the Philippines, Singapore, South Korea, Russia, Saudi Arabia, South Korea, Timor-Leste and Zambia to become parties to the Convention, as well as discussions with Fiji and Thailand, whose accession the United States has yet to accept under Convention.

5. 5. The State Department reported on 18 countries where applications for return had remained open for more than 18 months after the date of filing. These are Argentina (three cases), Belgium, Brazil (6 cases), Canada (3 cases), Colombia (2 cases), Costa Rica, Ecuador, France (2 cases), Greece, Honduras (2 cases), Israel (2 cases), Mexico (82 cases), Netherlands, Peru (3 cases), Romania, Slovakia, Spain and Turkey (2 cases).

Parental Tug-of-War: Preventing International Child Abduction

2011-05-05T06:15:00.000-07:00

My hot-off-the-press article entitled Parental Tug-of-War: Preventing International Child Abduction, in the just-released issue of GPSOLO, an American Bar Association publication, is now available on my website:

Parental Tug-Of-War Article

The article contains a host of practical tips on how to represent clients who are worried that their child may be abducted overseas and discusses the legal context of these cases.

It also contains advice on how to represent a parent who wants to take a child for a visit overseas over the opposition of the other parent.

Opposing Enforcement of Islamic Marriage Contracts

2011-04-28T15:10:00.000-07:00

It is often stated that a husband’s promise to pay money, sometimes called a “mahr” or a “sadaq”, pursuant to an Islamic marriage contract, sometimes called a “nikkah nama”, is enforceable in a U.S. court under principles of regular contract law, even though such agreements are not enforceable as prenuptial agreements.

What arguments may be raised in opposition to such enforcement?

1. The financial promise is often expressly conditioned on “Islamic” law or conditions. Thus one might assert that the contract is an integral component of a religious matter and cannot be understood without the court delving into Islamic religious matters and applying Islamic religious law, all of which is inappropriate as a matter of public policy.

2. Since Islamic marriage contracts are invariably extremely succinct, one might argue that the contract is far too uncertain to be enforced. The uncertainty will typically be as to the time of payment, as to whether the deferred portion is to be paid from separate or marital funds, and as to the parties’ required compliance with “Islamic” law, especially because there are many different schools of Islamic law, which vary according to the community, the locale, the religious leaders, the teachers and the theological books. Sometimes this argument is phrased as a lack of any meeting of the minds.

3. One might argue that under Islamic law the payment and retention of the money is always contingent upon the wife not being the party whose fault leads to the termination of the marriage. This opens the door to proof of the wife’s fault and questions as to whether fault should be viewed from an Islamic perspective.

4. Similarly one might argue that a wife who initiates divorce proceedings has forfeited the right to her marriage payment.

5. Another argument, especially for Islamic marriage contracts entered into in Islamic countries, is that the financial terms of a nikah nama can be understood only in the context of the Shariah religious law under which they are made. Islamic law provides very little in the way of spousal maintenance so that a fundamental purpose of the mahr is as a substitute for maintenance. Asking the court to deal with the mahr in isolation and out of context, without applying the other rules of Sharia law concerning the parties’ financial relationship, can produce a grotesquely unfair result.

6. Although there is no fixed amount of mahr in the Shariah but there are verses that indicate that it should be reasonable according to the financial status of the husband and according to the time and place and not too expensive. One might argue that the mahr is invalid under Islamic law because it was too high given the husband’s financial circumstances.

7. Another argument might be that the wife has waived the mahr obligation.

8. Other contract defenses could be duress and mistake.

9. Finally, there is some authority for the proposition that it is a defense that the husband is simply unable to pay the money and that, under Islamic law, he therefore no longer has the obligation to do so.

Launch of International Prenuptials Website

2011-04-11T12:47:00.000-07:00

We are pleased to announce

the launch of www.internationalprenuptials.com, our website focused on international prenuptial agreements.

The explosion of international relationships creates a tremendous need for sophisticated international counsel to structure international prenuptial agreements.

We work collaboratively and collegially with lawyers around the world to structure prenuptial agreements for engaged couples with international connections.

The issues that such agreements raise are frequently far too complex for local counsel to handle them alone.

We have great experience in advising wealthy and entrepreneurial clients and their families concerning these issues, as well as international couples who require particular protection in light of their international residence or business interests.

It is always prudent for international couples who plan to marry to consider making an international prenuptial agreement, sometimes known as a premarital or antenuptial agreement or a marriage contract.

Russia - England High Profile Divorce Case

2011-03-31T14:51:00.000-07:00

The hot-off-the-press decision of the English Court of Appeal in a Russia-English divorce case is most interesting. Stay tuned for analysis. Meanwhile today’s Daily Mail article, below, must suffice.

£2.85m in London court after ex-husband loses his bid to have divorce settled in Russia

By Daily Mail Reporter 31st March 2011

A Russian wife accused of taking advantage of the English courts to secure a big money divorce has been handed a £2.85million payout after an 18-month marriage, amid claims the decision could 'open the floodgates' for so-called divorce tourists.

Fashion student Elena Golubovich, 27, and international financier Ilva Golubovich, 26, married in August 2007, and lived together at their £4m London home until they split in July 2009.

The couple, who are both the children of rich Russian families, spent money 'at a prodigious rate, providing themselves with an indulgent standard of living', according to a judge.

Some £2million went during the months of their whirlwind marriage, in which they had one daughter, now aged two, and the pair earned nothing in the UK at all.

In early 2009, the breakdown of the marriage saw Mr Golubovich head to the Russian Courts, while Mrs Golubovich attempted to bring proceedings in the UK, as differences in the law meant she stood to get a bigger payout here.

She succeeded in having the Russian divorce invalidated by a High Court judge in the UK, only to have that decision overturned by the Appeal Court last July.

Despite that ruling, Mrs Golubovich still had a claim to a share of Mr Golubovich's UK assets under the Matrimonial and Family Proceedings Act.

And, in August last year, Mr Justice Moylan sitting in the Family Division of London's High Court, ordered Mr Golubovich to pay his ex-wife £2.835million, to meet a lump sum and her legal costs.

That decision was immediately challenged, with Justine Johnston, for the husband, arguing that the award was out of proportion to the length of the marriage.

She said almost all of his wealth came from his parents and could not be counted as assets of the marriage - and also that the case had no place being dealt with in the English courts.

Now Lord Justice Thorpe, Lord Justice Etherton and Mrs Justice Baron, sitting at London's Appeal Court, have upheld the Family Court award, despite warnings from Miss Johnston that doing so would 'open the floodgates' and 'inundate' the British courts with divorce tourists.

The court heard that the couple lived all their married life in the UK using the husband's mother's luxury flat in Kensington. Mrs Golubovich, 27, also owned a £600,000 flat in nearby Cornwall Gardens.

Their links to Russia were such that the Appeal Court found that the Russian divorce ought to be allowed to stand, but their life in London was enough to allow the wife to make a claim on her ex-husband's British assets in the family court, Lord Justice Thorpe ruled today.

Miss Johnston, whose client is currently 'exiled' from the UK by an order for his committal to prison made after he failed to pay out the sums ordered by the courts to his ex-wife, argued that the Family Court judge ought not to have given the wife a penny.

INDIA’S DOWRY / 498a LAW

2011-03-31T14:20:00.000-07:00

We have commented previously on the abusive “498a Law” that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands. Please see:

http://www.international-divorce.com/Indias-Notorious-Section-498A.htm

The Home Ministry of the Government of India has requested the Law Commission of India “to consider whether any amendments to s.498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.”

See the article below for a new discussion of this topic.

Dowry wars: The big issue that has India divided

The Independent

Andrew Buncombe, 2 March 2011

An intense lobbying battle is being fought as the Indian government prepares to amend landmark legislation introduced nearly three decades ago to protect women who were being attacked, harassed and even murdered for refusing to pay dowries.

Amid an increasingly vocal campaign by "men's rights" organisations, who claim the law has been misused in order to extort money from husbands, the government has asked its legal advisers to investigate and suggest options for reform.

Women's groups say the legislation is vital to protect countless numbers of brides against violent demands for dowries and must not be watered down. They claim that up to 25,000 Indian women are killed every year because of the inability or refusal of their families to make such payments to the family of grooms.

The payment of dowries was banned in India in 1961 but remains commonplace and may be on the rise. In 1983, Section 498a of the Indian penal code was introduced to offer additional protection to women, by ruling that any husband or member of his family convicted of "cruelty" or violence associated with attempting to force such payments should face up to three years in jail.

The culture war being fought in newspapers and between activists highlights subtle changes in Indian society and an increasing willingness among some women to report domestic abuse. Women's groups say the campaign by men to change the law is nothing more than a backlash from those opposed to female empowerment.

Mithun Kumar is typical of those who say the anti-dowry laws are being misused. The 30-year-old from Bangalore, employed in the IT industry, had an arranged marriage in 2007. He claims he discovered his wife was continuing to keep in touch with a previous boyfriend and wanted to maintain an affair with him. "She said if I didn't go along with it, I would go to jail," he said. Mr Kumar said his wife and her family then filed a case against him with the police, claiming he had demanded a dowry from them. He told the police he was innocent, but was arrested anyway. He is fighting the case in court.

Rajesh Vakharia, a self-employed 42-year-old from Nagpur, claimed his wife and her family made similar allegations five years after their arranged marriage in 1999. "I was held for six days in the police station," he said. "She wanted to extort money from me. I would not pay and fought the case. Eventually I won, but for fours years I was not able to see my son. What is happening in India is very sad. There is no protection for men."

The campaign to scrap Section 498a is being led by groups including the Save the Family Foundation. An official, Niladri Das, claimed men in India were increasingly resentful of "biased" laws. He said that more than 95 per cent of men charged under 498a were later acquitted and that was proof the law was being misused. "A woman can make any accusation she wants," he said. He said claims that 25,000 woman a year were killed was "a lie propagated by feminists in order to get money from international NGOs". He added: "We are not saying there are no cases, but these figures are highly inflated."

The government appears to agree with the men. Law minister M Veerappa Moily recently referred the legislation to the country's law commission, which advises the government on legal reform. The commission's chairman, PV Reddy, a former supreme court judge, said they would soon be publishing a consultative paper. "There is misuse, it's been referred to in court judgments," he said. "There is misuse in regard to any law, not just this one. But this is not an ordinary crime. It's about marital discord. It's a very sensitive issue."

Women's rights campaigners say any dilution of the act would be a big mistake. They argue that women face widespread sexual and physical abuse in India and say that if a law is being misused, then the police and courts need to act more efficiently rather than change it. They also argue that the continued practice of dowry payments in the country, and the attendant preference for male children, has helped contribute to the widespread abortion of female fetuses. The problem is so prevalent that in some parts of India there is a marked gender imbalance. A 2001 census found that in Punjab for every 1,000 boys there were only 793 girls.

Donna Fernandes, a veteran women's rights campaigner from Bangalore, said she knew of no empirical evidence that showed 95 per cent of men charged under Section 498a were acquitted. Furthermore, she insisted, an acquittal did not necessarily amount to a misuse of the law as women may withdraw an allegation because of pressure. She said: "Women are moving ahead. Today they are more economically independent. They don't need marriage. They say 'To hell with it if he can't respect me.'"

Ms Fernandes said her organisation, Vimochana, collected statistics from Bangalore that showed up to 100 married women were being murdered in the city every month, though not all were necessarily related to dowry payments. She added: "If this law is being misused, then why are so many women dying?"

Among those urging the authorities to retain the law is Girender Singh, from Delhi. His 24-year-old daughter Anshu was found dead in January last year, just 45 days after she was married. Mr Singh said Anshu's husband's family had repeatedly made demands for money and while he did not pay a formal dowry, he handed over around £6,000. His daughter's husband was arrested on a charge of murder and the case is before the courts.

Mr Singh declined to talk about Anshu's case but instead forwarded a copy of a letter he had sent to the authorities in which he expressed his "pain and agony" and asked they not dilute the legislation. "In truth, is there any law to save girls and married women in India except 498a?" he wrote. "A little fear of 498a might save the girls and women from heinous crimes which are on a rising trend in our great Indian society."

Singapore Ruling on Marital Agreements

2011-03-29T06:24:00.000-07:00

We have previously reported that Singapore Court of Appeal has held that it will normally enforce prenuptial agreements or other marital agreements, at least if they were entered into in a foreign jurisdiction under whose law they are valid. (Singapore Prenuptial Agreements)

The Court determined in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009) that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.
Now, in AFS v AFU, [2011] SGHC 52 (7 March 2011), the Singapore High Court has followed the ruling in TQ v TR but has refused to enforce a Deed of Separation entered into in Singapore on the ground that the husband had violated an obligation to make full disclosure of his assets and expectancies before the parties had signed the Deed.

One year after the Deed was executed the husband’s company granted him a stock option of great value. The Court determined that the husband had had an expectancy of receiving the stock option prior to the date of the deed and that he had failed to disclose it to his wife.

The Court explained that the decision in TQ v TR held that an agreement between parties “cannot be enforced in and of itself”. The terms of an agreement would only constitute one of the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets concerned are to be distributed. Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.

Applying those considerations the Court awarded the wife 25% of the value of the undisclosed assets.

Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women’s Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore.

It also seems most likely that the Singapore courts will be influenced significantly by cases to be handed down in England under the authority of the English Supreme Court case of Radmacher.

U.S. Prenuptial & Post-Nuptial Presentation

2011-03-27T19:11:00.000-07:00

Many people have requested access to my PowerPoint presentation on U.S. Prenuptial & Postnuptial Agreements. The presentation can be accessed at this link.

The presentation was at the Symposium on International Pre- and Post-Nuptial Agreements hosted by Family Law in association with the International Academy of Matrimonial Lawyers on March 8 2011 in London.

It was "an essential seminar for all ancillary relief lawyers advising high net worth individuals with international connections." It focused on the disparity in divorce laws in England and Wales, Australia, France and the USA, in particular New York. Speaking at the seminar were Charlotte Butruille-Cardew, Nicholas Francis QC, Jeremy Morley, Geoff Wilson and the event was chaired by David Salter.

Law-Shopping & Forum-Shopping in International Prenuptial Agreements

2011-03-15T14:36:00.000-07:00

Drafting prenuptial agreements is always challenging but the complexities are greatly magnified when the clients are international, whether in their citizenship, the location of assets, their employment or their residency, or because such international connections are anticipated or reasonably on the horizon.

In such situations lawyers have a responsibility to consider the impact of the different laws of the various jurisdictions with which the parties are connected or are likely to become connected. To do so they work with international counsel who have sophistication and experience in handling international prenuptial agreements and who can bring in appropriate local counsel in selected jurisdictions relevant to the issues that the clients has raised or should have raised.

It is often sensible for counsel to propose a "home" for the prenuptial agreement that is not the jurisdiction in which the lawyer practices. In some cases such advice to a client is absolutely essential.

"Choice of law" clauses are common in the United States and they are usually upheld there, provided the parties had a significant connection with the chosen jurisdiction and provided also that the outcome does not violate the public policy of the forum state.

"Choice of court" clauses are also a common feature of US prenuptial agreements. While they can usually not oust a court's jurisdiction they may be useful in persuading a court that it should accept a case that is brought in the jurisdiction selected by the parties or that it should decline a case brought in another jurisdiction.

"Shopping" for a suitable law and forum is not only appropriate but it may well be good practice - and some might argue that it is even an essential practice - whenever one represents an internationally-connected client with significant current or anticipated assets who wants to maximize the chances that such an agreement will enforced and/or who wants to include terms that might fall foul of a fairness test but which would more likely survive a test based on unconscionability.

Lawyers cannot guarantee the enforceability of pre- or post-nuptial agreements to clients, but they should steer clients to jurisdictions that are more likely to satisfy their goals.

For example, New York's public policy is to promote the resolution of issues between spouses by means of prenuptial and postnuptial agreements. That policy is reflected in a host of decisions from the New York courts upholding such agreements, including agreements that might well not be enforced in other jurisdictions.

For that reason counsel representing a client who has (or whose spouse-to-be has) a New York connection - whether based on current, prior or contemplated residency, current, prior or contemplated employment or other factors - should consider recommending that the parties make an express choice of New York law to govern their agreement.

Indeed, if such a choice is made, counsel might perhaps suggest that such a client should enhance the connections with New York by signing the agreement in that state and/or entering into the civil marriage there (even if the marriage festivity occurs elsewhere).

Since an English court might not enforce such an agreement, although very many jurisdictions around the world would do so, one might recommend that the parties should enter into two separate prenuptial agreements. One would be drafted with a view to English law and would apply only if the "stronger" foreign-oriented agreement were invalidated, either in whole or in significant part. Alternatively the agreements could provide that the "weaker" agreement would apply only if the financial issues were resolved in England while the "stronger" agreement would have priority if the financial issues were resolved elsewhere.

It is all too easy to refuse to look beyond one's own borders in these matters but international clients now expect us to do so.

http://www.familylaw.co.uk/articles/JeremyDMorley21022011

Jeremy D. Morley is a New York lawyer of English origin who concentrates on international family law. His law firm in New York handles many international prenuptial and postnuptial agreements, working with local counsel throughout the world. Jeremy is the author of International Family Law Practice, the leading treatise on the topic in the US and is a Fellow of the International Academy of Matrimonial Lawyers. He has taught in law schools in England, Canada and the United States. He maintains the www.international-divorce.com website and may be reached at jmorley@international-divorce.com.

How Did Japan Become a Haven for Child Abductions?

2011-03-11T14:09:00.000-08:00

Time Magazine, March 7, 2011

Like any loving father, Christopher Savoie just wanted to do the best thing for his two kids. In August 2009, his Japanese ex-wife broke U.S. law and abducted their children from his home in Tennessee, moving them to Japan. But when Savoie went to get them weeks later, he was arrested. It didn't matter that he had legal custody in both countries, that his ex-wife had violated a U.S. court order or that there was a U.S. warrant issued for her arrest. Nor did the fact that Savoie was a naturalized Japanese citizen and fluent in Japanese make a difference. After 18 days in jail, Savoie returned to the U.S. empty-handed and brokenhearted. A year and a half has passed since then, and he is still unable to see his son and daughter, now 10 and 8.

Despite all this, Savoie's ex-wife is beyond the reach of international law. Japan has not signed the Hague Convention on the Prevention of Child Abduction, an international accord adopted by 84 nations that is aimed at returning abducted children to the country from which they were taken. Along with an increasing number of international marriages and divorces, child abductions to Japan — the only G-7 nation that has not signed the treaty — have been on the rise. In 2009, the U.S. State Department ranked Japan at the top of its list in reported abductions from the U.S. among non-signatory nations. "It is our understanding that no U.S. citizen child abducted to Japan has been returned to the United States," says Paul Fitzgerald, a U.S. embassy official in Tokyo. The issue could tarnish U.S.-Japan relations; as U.S. Assistant Secretary of State Kurt Campbell told reporters during a trip to Tokyo in February, "The situation has to be resolved in order to ensure that U.S.-Japan relations continue on such a positive course."

Japan's antiquated family law complicates matters. In a Japanese divorce, child custody is awarded to only one parent — typically the mother. Visitation can be negotiated, but there is no legal enforcement, and agreements are often broken. In Japan, it's not unusual for the non-custodial parent to lose contact with his or her child, and domestic abductions, when they do occur, are often ignored by the police as a family matter. It's a devastating scenario for a growing number of fathers residing in Japan — both Japanese and foreign — who have few legal rights to see their children. "Clearly, the best legal scenario is for the children to be here in the U.S. where each parent would be guaranteed visitation," writes Savoie by e-mail.

International pressure for Japan to make a change has been mounting. Over the past year, several ambassadors from embassies in Tokyo have met with high-level government officials to urge Japan to sign the treaty. A Japanese government panel was set up in January to study the pros and cons, but opposition remains firm at most levels. Japanese lawmakers are worried the Hague Convention does not properly take into account past cases of domestic abuse or a child's own right to choose where he or she lives.

On Feb. 22, a Bar Association issued recommendations to the Japanese government, including a guarantee in domestic law that children not be returned to their country of residence if they were subjected to abuse or violence. Left-behind parents, including Savoie, say the recommendations are draconian and anti–joint custody, in part because abuse is both difficult to prove and commonly cited as one of the main reasons for abduction.

A Japanese woman, who uses the alias Keiko, says she left the U.S. with her child because she discovered her husband was abusing their son. "There were no obvious physical marks, so it would have been impossible to prove in court," Keiko explains tearfully. After consulting a therapist and an attorney in the U.S., she feared that getting sole custody as a Japanese citizen would be nearly impossible. "When we were in Japan, my son told me he feels safe, far away from his father ... I didn't really want to leave the U.S. I had a good job and many friends. But I wanted to do what was best for my son." Keiko is now one of about 50 members of the Safety Network for Guardians and Children, a support group for women who abducted their children to Japan from various countries.

Finding a internationally recognized legal resolution to cases like Keiko's will not be easy. But in the meantime, Japanese mothers living abroad who have no intention of removing their children from their families are beginning to be affected by the problem. Jeremy Morley, a U.S. attorney specializing in Japanese child abductions, says foreign courts are "increasingly ordering Japanese mothers living overseas not to take their children to Japan even for a family visit because of Japan's status as a renowned haven for international child abduction."

A winning diplomatic strategy will need teeth to make a difference for everyone involved. "The mantra now is 'Japan sign the Hague,' but that's not enough," U.S. Representative Chris Smith said during a recent trip to Tokyo. The New Jersey Republican, who chairs a subcommittee overseeing human-rights issues, is pushing for a bill that would establish an Office of International Child Abductions within the U.S. State Department to handle cases and discuss sanctions against uncooperative nations. "I don't know what the answer is," says Keiko. "But we need to find a solution that's in the best interest of the child."