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

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.
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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

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

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

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.

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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

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

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

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

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

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.

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

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

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"