Hong Kong: Asian Divorce Capital

Jeremy D. Morley

Forbes calls London the Top Destination for International Divorces. What they mean, of course, is that it’s often the best place for someone divorcing a wealthy spouse to bring their case. It can be the worst destination for the wealthy spouse.

What Forbes doesn’t say is that the second-place in the Divorce Tourism list for someone married to a rich spouse may well be Hong Kong.  It seems to be the best in Asia.

Hong Kong follows English law when it comes to the money side of divorce. Its courts have expressly followed the famous cases which changed English law in favor of “fairness”. These cases do not simply divide the pot” equally. Most jurisdictions do that. They decide what will go into the pot in a way that can be massively more favorable to the weaker party, and they police the matter effectively by requiring full disclosure of assets and transactions and by making it painful for spouses who don’t “fess up” to all their assets.

But these simplistic league tables can be very misleading. You can’t simply ask your travel agent to book a flight into – or out of – one of these jurisdictions.

The key question is whether the courts have jurisdiction to handle the case. In these matters parties need strategic international divorce advice.

Marital Property & Divorce in China: An Update

Jeremy D. Morley

Chapter Three of the Marriage Law of China, as amended in 2001, provides for spousal community property of post-marital wages, bonuses, income from production and business, income from intellectual property, property obtained from inheritance or gift and “other properties that shall be jointly owned.” (Art. 17). Article 18 specifies items that are excluded from community property, specifically a)  pre-marital property; b) payments relating to a spouse’s bodily injury; c) “articles of living specially used by either party”; and d) “other property that shall be used by either party.” The Marriage Law also expressly authorizes variation of such arrangements by prenuptial or postnuptial agreements. (Article 19).

The Supreme People’s Court of China has issued several “Judicial Interpretations” of the property provisions of the Marriage Law.

In 2001 the Court declared, in substance, that separate property should be not be transmuted into marital property in the absence of an express agreement.

In 2003 the Court declared, in substance, that in the absence of express proof of a contrary intention, funds provided before marriage to one spouse for the purchase of real property would be deemed separate property during the marriage, while similar funds provided during the marriage by the family of one spouse would be deemed to be a gift to both spouses and should therefore be treated as marital property.

In 2011 the Court changed (or clarified) its 2003 Judicial Interpretation by stating that if the parents of one spouse provided the funding during the marriage for the purchase of real property , the property would be the separate property of whichever spouse was named on the deed as the sole owner of the property. On the other hand, if the parents of both spouses provided such funding and if the title to the real property was placed in the name of only one spouse, the real property would be owned in proportion to the amount of funding supplied by the respective parents (absent a different agreement between the parties).

The 2011 Judicial Interpretation also declared that if one spouse enters into a contract before the marriage to buy real property, and makes a down payment from premarital funds subject to a mortgage, then if marital funds are subsequently used to pay the mortgage, the party under name title to the property is placed shall compensate the other party with regard to both the mortgage payments made during the marriage and the appreciation corresponding to such mortgage payments.

In addition the 2011 Interpretation provides that if one spouse sells real property that is the community property of both spouses, without the consent of the other spouse, to a bona third party purchaser who has paid a reasonable price, the other spouse will not be able to regain the property, and may only have the remedy of seeking compensation from the selling spouse upon divorce.

See Di, Yu, Latest Evolution of Marital Residence Regime in Contemporary China, 88 Chi.-Kent L. Rev. 1013 (2012-2013); Jason Tian, China Supreme Court issued the third judicial interpretation on application of Marriage Law, www.sinoblawg.com/?p=146

OUR STRATEGIC INTERNATIONAL DIVORCE PLANNING PROCESS

by

Jeremy D. Morley

People with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first consult us for Strategic International Divorce Planning advice. Here is what we do for a motivated client (always working with local counsel as appropriate):

1. Analyze the Family’s Entire Economic Picture.

This is exactly what any divorce lawyer does in a conventional divorce situation but the strategic international lawyer will pay particular attention to any connections that the family has with other countries, to assets that are located overseas and to the possibility of moving assets or family to other jurisdictions.

2. Consult with the Client as to His or Her Goals.

Divorce lawyers can easily make a bad situation very much worse. They must be extremely sensitive to a client’s real needs and desires. For example, there is no point in advising a client to move his assets into an offshore trust if that will destroy a relationship with his soon-to-be ex or drive an inappropriate wedge between him and other members of his family. Is the client prepared to move lock, stock and barrel to a new country for a few years? Does he believe that his wife will join him there? How about the children?

3. Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions.

The strategic international lawyer will prepare an initial analysis of the most obvious possible jurisdictions, including jurisdiction of the current residency, the other jurisdictions with which the client or his spouse have substantial connections and any other jurisdictions that the client is interested in, recognizing that if a particular jurisdiction is chosen the client may well need to move there for a substantial period of time and may also be well advised to take others in his family there, as well.

4. Focus on a few jurisdictions.

We will then usually consult with counsel in those jurisdictions that seem to hold the most promise.

We must analyze, separately for each “target jurisdiction”:

a) The jurisdictional rules. Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What “facts on the ground” will need to be accomplished in order to satisfy the conditions?

b) The grounds for a divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?

c) The nature of the assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.

d) The method of asset division that is used by courts in the target jurisdiction.

e) The relevance of the conduct of the parties to the division of assets in the target jurisdiction.

f) The philosophy of the courts in the target jurisdiction.

g) Spousal maintenance. What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a “clean break” whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?

h) Enforceability issues. Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.

i) Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are:

- Pre-marital assets. Some jurisdictions allow and even encourage the courts to divide even a party’s premarital assets (England). Others do not (New York).

- Trust assets. Jurisdictions vary considerably in their treatment of assets that a spouse has placed in trust. Some jurisdictions will “pierce” the trust (Colorado). Others will not (Japan).

- Inherited assets. Many jurisdictions do not divide assets that a spouse has received as an inheritance. Others do (Netherlands).

- Gifted assets. Many jurisdictions do not divide assets that a spouse has received as a gift.

- A pre-nuptial agreement. Some jurisdictions do not recognize international prenuptial agreements as binding. Jurisdictions vary significantly in the bases upon which prenuptial agreements may be invalidated or restricted, in the nature of the burden of proof concerning validity and on other critical factors concerning their applicability.

- “Bad conduct.” Some jurisdictions punish adultery, criminally and by a financial award to the “innocent spouse” (Korea). Others allow a divorce for mere incompatibility (California).

5. Analyze the rules concerning children.

Jurisdictions around the world vary enormously in their treatment of children upon a divorce.

Issues include:

- Sole custody versus joint custody.

- Minimal visitation rights to a noncustodial parent versus liberal visitation rights.

- Male-dominated approaches versus female.

- National biases versus impartiality.

- Religious biases versus impartiality.

- Freedom to relocate versus limited relocation.

- Freedom to take children overseas versus inability to do so.

An analysis of these matters must consider not only the rules on paper but the rules in practice. Enforcement issues may be critical.

6. Select the jurisdiction.

Having provided the client with the necessary information concerning each such jurisdiction, the client decides on a strategy.

7. Advise as to the steps now to be taken.

Our advice is frequently required to assist with the implementation of the strategy so as to:

(a) Maximize the likelihood that the jurisdiction in question will indeed be the jurisdiction that actually handles the matter.

(b) Minimize the likelihood that the other spouse will succeed in bringing the case in a less attractive forum or in moving the case from the better forum to a less attractive forum

(c) Maximize the likelihood that the jurisdiction in question will view the facts of the case in as favorable a light as possible.

Caveat: Attorneys in our firm are admitted to practice law only in the States of New York and New Jersey. Any information that we provide concerning the law of another jurisdiction is subject to a client obtaining legal advice from counsel in that jurisdiction. When appropriate we will retain the services of local counsel to assist us in providing advice to a client; the client will be responsible for the payment of the fees of all such local counsel.

Hong Kong Divorce: Jurisdiction and Inconvenience

By

Jeremy D. Morley  

The courts of Hong Kong deal with large numbers of international divorce cases. Hong Kong has jurisdiction if certain specified conditions are fulfilled but it is important to understand that the courts may decline jurisdiction on the grounds of inconvenience in some cases.

Jurisdictional Requirements:  

Hong Kong courts have jurisdiction of divorce cases if –

          a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; or

          b) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or

          c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.

The meaning of the term “domicile” is significantly affected by a Domicile Ordinance “to consolidate and reform the law for determining the domicile of individuals” enacted as of 1 March 2009, which amends the common law of domicile in certain respects. The Ordinance provides that:

          -every person has a domicile but not more than one;

          -on becoming an adult, an individual retains the domicile that he had immediately beforehand;

          -an adult acquires a new domicile in a country or territory if he is present there and intends to make    a home there for an indefinite period;

          -a child is domiciled in the country or territory with which he is for the time being more closely connected;

          -where the child's parents are domiciled in the same country or territory and the child has his home with either or both of them; it shall be presumed, unless the contrary is proved; that the child is most closely connected with that country or territory; and

          -where the child's parents are not domiciled in the same country or territory and the child has his home with one of them, but not with the other, it shall be presumed, unless the contrary is proved, that the child is more closely connected with the country or territory in which the parent with whom he has his home is domiciled. 

The meaning of the term “substantial connection” has been discussed in several international divorce cases. Cases have held that a party’s connection with Hong Kong must be “of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that party’s marriage.” In this regard, a judge stated that:

“good sense dictates that there is a difference between residing in Hong Kong for a month or two to oversee a short-term project and being posted here together with one’s family for a period of several years.”    

Declining Jurisdiction in International Cases:  

Hong Kong courts may decline to accept jurisdiction by reason of the doctrine of forum non conveniens.

In order to warrant such an order the applicant must establish that there is another available forum that has competent jurisdiction and that is the appropriate forum for the trial of an action i.e. in which the action may be tried more suitably for the interests of all the parties and the ends of justice.

In order to answer this question, the applicant for the stay has to establish that:

          1.      That Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action); and

          2.      That there is another available forum which is clearly or distinctly more appropriate than Hong Kong. 

If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceeding has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer.  Deprivation of one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.

While the Hong Kong courts have granted applications to stay divorce cases in some international divorce cases the courts have often expressed pride in their experience in international matters and their ability to handle such matters. In one case the judge stated that:

“The family courts in Hong Kong have vast experiences in dealing with cases of an international dimension.  Many involved the large expatriate community in Hong Kong whose assets are located both in Hong Kong and overseas.  The Hong Kong courts regularly deal with the valuation of overseas properties and make orders thereto.  In terms of convenience and expense of hearing, Hong Kong has a purpose-built technology court room with video linkage to overseas countries.”

Jurisdiction to Make a Financial Award Even After a Foreign Divorce Has Been Obtained:

Pursuant to Part IIA of the Matrimonial Proceedings and Property Ordinance effective 2011, courts in Hong Kong may order financial relief to a former spouse whose marriage has been dissolved outside Hong Kong.  Before doing so, the court must consider the following matters:

a) the connection that the parties to the marriage have with Hong Kong;

b) the connection that those parties have with the place where the marriage was dissolved or annulled or where they were legally separated;

c) the connection that those parties have with any other place outside Hong Kong;

d) any financial benefit that the applicant or a child of the family has received, or likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a place outside Hong Kong;

e) if an order has been made by a contemporary authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family-

     (i) the financial relief given by the order; and

     (ii) the extent to which the order has been complied with or is likely to be complied with;

f) any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised that right, the reason for that;

g) the availabilty of any property in Hong Kong in respect of which an order for financial relief in favor of the applicant may be made;

h) the extent to which any order for financial relief is likely to be enforceable; and

i) the length of time that has elapsed sice the date of the divorce, annulment or legal separation.

IAML Essay Award for Young European Family Lawyers

Introduction

Three years ago the European Chapter of the International Academy of Matrimonial Lawyers ("IAML") established an essay writing award for young family lawyers to be awarded on an annual basis. The first years were a great success. The Award aims to promote research and excellence among young family lawyers and to increase awareness among other legal professionals of the work and objectives of the IAML.

Prize
The annual Award consists of a prize of €1,000 to the author of the winning essay and € 500 for the two best runners up. The main Award will be presented at the Annual Meeting of the European Chapter to be held in Bordeaux, France, from March 19th to March 23rd 2014. The winning essay will be announced approximately two months prior to that meeting. The winning author will also receive a travel bursary of up to €2,000 to allow him/her to attend the meeting to include travel expenses.

Selection
A selection panel of the European Chapter will be responsible for the selection of the winning essay. The winning essay will be selected according to originality, the importance and complexity of the legal issues involved, the relevance of the subject matter to the IAML, any research undertaken and the structure, writing style and presentation.

Subject Matter
The essay will address a topic of relevance to the IAML and European family lawyers, typically with an international dimension and/or an analysis of recent or planned developments. This year's topic will be

“Should applicable law rules about Division of Assets in Europe be replaced with lex fori? Discuss in general or with reference to the law and practical experience in your country”.

The essay should be not less than 2,000 words and should not exceed 3,000 words in length (excluding footnotes), preferably in English, although essays written in a language other than English will also be welcomed.

Eligibility
The author of the essay must be a qualified practising family lawyer of up to ten years qualification and/or experience and be residing in a European country.

Publication
The winning essay will be published on the IAML website and also in the IAML Newsletter. The entry should not have been published or be under consideration for publication elsewhere, although can subsequently be published elsewhere with appropriate reference to the IAML. The invitation to apply will be published on the IAML website and all Fellows of the European Chapter will receive a notice to circulate details and highlight awareness of the Award in their respective jurisdictions.

Time Deadlines
The essays for consideration in respect of the award should be submitted no later than 15th November 2013. Submissions should be sent electronically to Donna Goddard of the IAML at donna.goddard@iaml.org

Hague Abduction Convention in Force between Trinidad and U.S.

Jeremy D. Morley

The Hague Abduction Convention has now entered into effect, as of August 1, 2013, between the U.S. and Trinidad & Tobago, three months after the U.S. declared its acceptance of T&T’s accession to the Convention. 

Trinidad & Tobago became a party to the Hague Convention in 2000 but only in May did the State Department declare its acceptance of the process in place in that country to implement the Convention.

The Trinidad Central Authority, for purposes of the operation of the Convention, is the Civil Child Abduction Authority in the Ministry of the Attorney General.

Our client: International custody case child returns to Sweden

 

In this March, 2013, photo provided by Stacey Warren, the Des Moines attorney representing Magnus Anderung, is Magnus Anderung with his daughter. The 3-year-old girl that was the center of an international custody dispute between her divorced father living in Sweden and her mother, Raina Anderung, who brought her to Iowa, is boarding a plane to return to Sweden as ordered by a federal judge. Riana Anderung said the her daughter boarded a flight departing Des Moines Wednesday, July 17, 2013, with her father. (AP Photo/Stacey Warren)

DES MOINES, Iowa (AP) — A 3-year-old girl at the center of an international custody dispute boarded a plane to Sweden on Wednesday after a federal judge ruled that her mother was violating a treaty by keeping her in Iowa.

Linnea Anderung left on a morning flight from Des Moines with her father, Magnus Anderung, said attorney Stacey Warren, who represented the father in the federal case. Anderung's ex-wife and Linnea's mother, Raina Anderung, did not leave with them.

Magnus Anderung filed a lawsuit in February in Iowa alleging that his ex-wife never returned after leaving Sweden in May 2012 on what was supposed to be a 90-day visit to see her mother in Pleasantville, a small town about 30 miles southeast of Des Moines.

A federal judge sided with him in May, ruling that Raina Anderung had wrongfully kept their daughter in the U.S. since last August in violation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The treaty, which outlines child custody rules between countries that sign the agreement, was signed by the U.S. in 1988 and by Sweden in 1989.

Warren said the parents met a couple of times in the past week, together with Linnea, to make the transition easier for her. She has not lived with her father in more than a year, although he had come to Iowa to see her and to await the outcome of the court fight.

"He has been in Des Moines for 118 days, waiting to board a plane with his child and go home," Warren said. "His life, which has been on hold for the entire time, can finally resume and Linnea will be able to celebrate her fourth birthday at her home in Sweden."

Raina Anderung said that her daughter was upset at having to leave her mother and clung to her. She said her ex-husband had agreed to allow her and their daughter to move to Iowa, but Magnus Anderung denies that claim. She said she's now in debt from paying for her attorney but that she will continue to try to get custody of her daughter. She said parting with her daughter was "terrible, traumatic and a travesty" for the girl.

U.S. District Court Judge James Gritzner issued a ruling last month ordering the mother for the second time to return her daughter to Sweden. The judge argued that Raina Anderung had taken her daughter from the only country where the girl had ever lived.

Gritzner allowed the mother to appeal but ultimately found that none of the new evidence she submitted was compelling enough to overturn his earlier ruling. He said allowing further delays wouldn't be fair to the girl's father, who has been staying in Iowa because of the custody fight. He said Raina Anderung had the option of returning with her daughter to Sweden, where her father now has sole custody.

The parents had joint custody in Sweden before Raina Anderung left the country. After the Iowa judge's May ruling that ordered the child be return to Sweden, Magnus Anderung filed for a modification of their custody agreement in a Swedish court.

Under the international treaty, custody is decided in the nation from which it originated.

http://bigstory.ap.org/article/international-custody-case-child-returns-sweden

Hong Kong Strengthening Commitment to Hague Abduction Convention

Hong Kong appears to be strengthening its commitment to the Hague Abduction Convention process. The focus on tougher exit controls to discourage international child abduction stands in sharp contrast to the U.S. “open borders / no exit controls” policy that greatly hinders U.S. efforts to deter international child abduction.

See the following announcement (July 11, 2013) from the Hong Kong Government:

The Child Abduction Legislation (Miscellaneous Amendments) Bill 2013 will be gazetted tomorrow (July 12). The Bill seeks to implement the recommendations of the Report on International Parental Child Abduction (the Report) published by the Law Reform Commission of Hong Kong (LRC) and to better support the operation of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

The Hague Convention, which has been given the force of law in Hong Kong since September 1997 by the Child Abduction and Custody Ordinance (Cap.512), provides that children abducted from one contracting state to another should be located and returned to their home jurisdictions as quickly as possible.

The Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, said, "The LRC's review aims at improving Hong Kong's current legal protection against international parental child abduction."

Noting that the Report aims to help prevent children from being abducted out of Hong Kong by one of the parents, Mr Cheung said, "The recommendations will help prevent parental child abduction which usually occurs when a relationship between two parents breaks down and one of them absconds with the child to another jurisdiction. As pointed out by the LRC, when a child is abducted, he or she suffers the trauma of being taken away from home, and from the custodial parent and other family members.

We are also concerned that such abduction will be a harrowing experience for the child's left-behind family.

"The legislative amendments will minimise the likelihood of such an occurrence. One of the key amendments in the Bill is to provide a specific power to the local law enforcement agencies to hold a child suspected of being abducted at any border control points so that the child can be returned to the custodial parent or taken to a place of safety."

The Bill will be introduced into the Legislative Council for first and second readings on July 17.

The LRC has reviewed the existing legislation in Hong Kong relating to child abduction as well as the relevant laws of England and Wales, Scotland, Ireland and Australia and made a total of six recommendations. The recommendations include the introduction of legislative restrictions on removing a child from Hong Kong without the required consent; a specific power to the court to order the disclosure of the whereabouts of a child and to order the recovery of a child; a specific power to the authorities to hold a child suspected of being abducted so that he can be returned to the custodial parent or taken to a place of safety, etc.

The Report is the second in a series of four reports published by the LRC on guardianship and custody of children.

The first report on Guardianship of Children was followed up by the Labour and Welfare Bureau (LWB), resulting in the enactment of the Guardianship of Minors (Amendment) Bill 2012. The third report on the Family Dispute Resolution Process is being followed up by the Home Affairs Bureau. For the fourth report on Child Custody and Access, the LWB has decided to take steps to work out the legislative proposals and other implementation arrangements.

 

 

India’s 498a Law – The Abuse Continues

Jeremy D. Morley

In a landmark decision in 2010, Preeti Gupta v. State of Jharkhand, the Supreme Court of India lambasted the prevalent abuse of the infamous Section 498a of the Indian Penal Code law demanded that the legislature should change the law and directed that a copy of its decision be sent to the Law Commission of Indian the hope that the legislation might be amended.

The Law Commission issued a report in August 2012, calling for quite modest changes in the law. However, even those changes have not yet been enacted.

In Gupta the Supreme Court demanded that lower courts intervene to prevent the rampant consequential abuse of process, which has “led to enormous social unrest affecting peace, harmony and happiness of the society”; ruled that “most” 498a cases are filed in the heat of the moment over trivial issues without proper deliberations; asserted that many such cases are not bona fide, that many are filed with an oblique motive, and that many are filled with exaggerated or false claims; explained that these cases “can lead to insurmountable harassment, agony and pain to the accused and to his close relations” and “immense sufferings for all concerned;” and stated further that an ultimate acquittal may “not be able to wipe out the deep scars of suffering of ignominy.”

Meanwhile the abusive conduct continues. The Law Commission reported that in 2010 there were at least 340,555 cases under Section 498-A that were pending trial in various courts towards the end of 2010 and that there were as many as 938,809 people who were implicated in these cases. The reason that there were almost three times as many people accused as there were cases is that the law expressly authorizes a wife (but not a husband) to ask the police to bring charges against all of the relatives of her husband who may have participated in the alleged acts of cruelty.

We have commented previously on this law, that was well-intentioned in its enactment but which is frequently misused in India as a means of blackmailing non-resident Indian husbands. http://www.international-divorce.com/Indias-Notorious-Section-498A.htm.

We have testified on several occasions as an expert witness on the 498a law in courts throughout the United States and Canada.

Japan’s Hague Abduction Convention “Guidelines”

If the article below is accurate one may ask why Japan is even bothering to pretend to comply with the Hague Abduction Convention.

The article states that if a Japanese court orders that an abducted child should be returned to the country of the child’s habitual residence the child will nonetheless not be removed from the abducting parent if that parent refuses.

I sincerely hope that the Mainichi article is inaccurate for otherwise it would mean that a Japanese return order would effectively be totally unenforceable.

June 13, 2013 (Mainichi Japan)

Top court to release guidelines after Japan paves way to join int'l child custody treaty

Japan signed a domestic procedural law on June 12 aimed at joining the Hague Abduction Convention, which establishes protocol regarding the care of children following failed international marriages.

As a result, the country's Supreme Court could release guidelines to regional courts around the country by the end of the month regarding how to approach the matter of removing children from the custody of one of their parents.

The guidelines clearly advocate that such removal pay close consideration to children's physical and emotional well-being. "Children will not be forcibly taken if it is against their will, or if their parent refuses to let them go," the procedures state.

Such ground rules will also go into effect for non-international cases, where parents are involved in disputes over child custody within Japan's borders.

The Hague Convention stipulates, as a rule, that children under age 16 who have been abducted by one parent and taken overseas must be returned to the country where they were living originally. According to the newly passed law, if the parent in Japan has not returned the children in two weeks following the issue of the court order, an enforcement officer is authorized to take the children away.

In order to avoid a negative impact upon children's physical and mental well-being, the high court orders are expected to specify that the parent must be present -- and permission received from the day care or school principal -- in cases where children are removed in a school setting; and that children may also be taken away while sleeping.

The number of domestic cases in Japan where parents do not comply with child custody court orders following divorce is on the increase, with a total of 131 such incidents last year. In such cases, the court enforcement officers have had to remove the children coercively.

While the new law paving the way toward the international Hague treaty makes it clear that the parent must be present when the child is taken away, this has not been the case with respect to disputes within Japan's borders. Here, court enforcement officers have sometimes taken children away while they were at school or traveling between school and home -- thereby causing conflict with parents.

The ground rules were compiled following meetings held in January and February of this year, where some 150 judges and court enforcement officers from around the country exchanged views on the matter. At this time, numerous participants expressed the opinion that children should, as a rule, be taken away within the home setting only. In response, the forthcoming Supreme Court guidelines are poised to include this stipulation.

Successes in Hague Habitual Residence Cases

Yesterday’s decision by the Second Circuit Court of Appeals in Guzzo v. Cristofano cogently restated the rules concerning the definition of the term “habitual residence” in the Hague Abduction Convention. 

My client, Ms. Cristofano, had entered into a “bi-continental marriage” with Mr. Guzzo. Both are lawyers; he in Italy and she in New York.  Their child was born in New York and spent considerable time in both countries, always with his mother. The parties ultimately negotiated and signed a separation agreement, but his signature was not notarized. It stated that the parties would separate and that the mother and child would live primarily in New York, with visitation in Italy and New York. The mother then took the child to the father’s residence in Italy and they stayed in that area for much of the next two years. Indeed the child spent much of those two years in school in Italy. Ultimately the mother and child left Italy for New York and the father promptly initiated a Hague case.

The issue in the case was whether the child was habitually resident in Italy at the time he was brought back to New York. Judge Sullivan at first instance held “No” and he dismissed the petition. Indeed, he ruled in strong language that the father’s testimony concerning a purported reconciliation was not credible.

On appeal the Second Circuit affirmed that ruling and continued the line of cases starting with Gitter that sets forth the Second Circuit rule in that regard. It affirmed that the evidence of the parents’ last shared intention was clear and controlling absent any proof of acclimatization in Italy.

I should also note that the Court relied in part on another very recent case in which one of my clients won a Hague case on the issue of habitual residence, this being the case of Hofmann v. Sender. There, the Second Circuit accepted our argument that a consent to a child’s international relocation that is implicitly or inferentially conditioned on an event that does not occur – here, the establishment of a family home in the new country – does not constitute a sufficient consent for Hague Convention purposes.

Status of Korea’s Accession to the Hague Abduction Convention

As has been recently reported by the U.S. State Department:

·        The Republic of Korea is one of only a handful of East Asian countries that has acceded to the Hague Abduction Convention.

·        The Republic of Korea acceded to the Convention in December 2012, and the Convention went into force for the Republic of Korea on March 1, 2013.

·        The Convention will not enter into force between the Republic of Korea and the United States, however, unless the United States decides to accept the Republic of Korea as a partner.

·        The Department currently is conducting a review of the Republic of Korea’s implementation of the treaty, including its domestic legislation and institutions responsible for executing the country’s responsibilities under the Convention, in order to determine whether the United States should accept the Republic of Korea as a partner under the Convention.

Argentina Not Compliant with Hague Abduction Convention

Argentina has been declared “Not Compliant” with the Hague Abduction Convention in the U.S. State Department’s latest annual report on compliance with the Convention.

In the previous year it was merely listed as a country having “enforcement concerns.”  Indeed the State Department reports that, it “is not aware of any successfully enforced order for return from Argentina to the United States since 2006.”

See the article on our website at:

http://www.international-divorce.com/argentina_2012_state_department_report

This finding does not mean that children should not automatically be barred from traveling to Argentina over a parent’s objections but it does require a very careful evaluation of the risk that the taking parent might retain the child in Argentina versus the benefit of such travel for the child.

Compensation for International Child Abduction Victims

Our client, Moses Garcia, eventually succeeded in securing the return of his daughter to Wisconsin from Japan. He did so despite the rulings of Japanese courts that they would not implement the custody orders of the Wisconsin courts, where the child was living prior to her abduction. The child’s belated return, four years after the abduction, was solely a result of an arrest warrant that was issued in the case in Wisconsin and the mother’s mistake in stepping foot in Hawaii to renew her green card. She ultimately pleaded no contest to interfering with child custody, a felony, under an agreement that she would ultimately be convicted of only a misdemeanor if her daughter was returned to Garcia, who had legal custody.

A few weeks after his daughter's return, Dr. Garcia applied on her behalf to the Crime Victim Compensation Program. The Department of Justice denied payment, saying it wasn't intended for situations involving divorce. The DOJ argued that the program was never meant to compensate the kinds of emotional injuries inflicted all too often on children of divorce. But a state administrative law judge has disagreed. She found that the child’s mother had committed the compensable crime of "causing mental harm to a child," and that it was irrelevant that she was neither charged nor convicted of that specific offense. The judge found the girl's four-year stay in Japan completely cut off from her life in Wisconsin, which was not comparable to the emotional injuries suffered by children in more typical divorces.

Initially the Justice Department declared that it would appeal the ruling but the appeal has subsequently been withdrawn

British Columbia Law Changes: Marriage-Like Relationships & “Family Property”

Effective March 18, 2003, there has been a major change in the marriage laws of British Columbia, Canada. The new Family Law Act is now in full force and effect. It replaces the Family Relations Act.

Couples of the same or opposite gender who are in a “marriage-like” relationship for more than two years are treated as “spouses” for the purposes of the law and are subject to the same property-division rules as married people.

In addition, family property now includes all property owned by one or both spouses at the date of separation unless the asset is excluded, in which case only the increase in the value of the asset during the relationship is divisible. Whether an asset is used for a family purpose is no longer relevant in deciding if it is family property.

Japan’s Potential Ratification of the Hague Convention: An Update

Jeremy D. Morley

Japan has not yet ratified the Hague Abduction Convention. The Japanese Cabinet has today reportedly approved the ratification but the necessary legislation has not yet been passed by the Japanese Diet (Parliament).

The issue of Japan’s joining the Hague Convention is still controversial in Japan. Many members of the Diet are flatly opposed to the treaty on the ground that it will lead to the imposition of “Western thinking” on family relationships in Japan, i.e. that it might lead to the intervention of the courts into the private life of families, to the issuance of judicial orders concerning family matters that can be enforced by the power of the state, and to both parents having meaningful rights to their children after a divorce or separation.

Accordingly, newspaper editorials in Japan have demanded that, when Japanese wives “flee” foreign countries because of alleged domestic violence abroad, they must not be forced to return to the country where such abuse has occurred.

Such concerns have already led to inclusion of a provision in the draft legislation that is most likely to lead to an unnecessarily broad interpretation of the “grave risk” exception in Article 13(b) of the Convention.  Indeed, that is the intended result.

The result of such an exception would be to shield abductors who are able to claim domestic abuse even though:

(a) The legal system in the (American) habitual residence would provide an abuse victim and child with very substantial protection;

(b) No change is being made in Japan to the lack of any meaningful provisions in Japanese law for the other parent to have any access to the child or any decision-making role in the life of the child, so that in reality the foreign left-behind parent would still be without any meaningful rights to the child; and

(c) There is no meaningful system within Japan to effectively determine the merits of such claims of abuse.

In addition, there is a serious concern that petitioning parents will be forced into mediation before being allowed to proceed with or complete their judicial case. There are special provisions in the draft legislation promoting mediation. If the mediation process works similarly to the current Family Court mediation process it will lead to lengthy delays and extreme unfairness to petitioning parents.

Mediation is generally an extremely unhelpful forum for foreigners in family law cases in Japan, since (i) foreign parties must appear in person regardless of their place of residency, (ii) the sessions are usually short and are repeatedly adjourned for lengthy periods of time, necessitating multiple inconvenient and expensive visits to Japan, (iii) the foreigners’ views are generally misunderstood for language and cultural reasons,  and (iv) the foreigners are pressured to accept unfair terms since there is no enforcement of court decisions in family law matters in Japan and because they are told that their refusal to accept the mediators’ recommendations will be held against them in a trial.  

When most other countries have joined the Convention the United States could choose whether or not to accept the accession. If a country has not enacted satisfactory legislation designed to effectively enforce the terms of the Convention other countries need not accept the accession. Such is the case with Thailand, which acceded to the Convention in 2002 but has not yet enacted implementing legislation satisfactory to the United States or several other countries. By contrast, as an original member of the Hague Conference, Japan will not be acceding to the Convention, but will ratify it which will trigger its immediate entry into force without any place for international review.

Meanwhile, the Japanese public is being told that even if Japan signs the Convention, “The return of a child can be denied if the parent seeking it is believed to abuse the child or have difficulties raising him or her.” Daily Yomiuri, Mar. 16, 2013. If that is the gloss that Japan intends to put on the Hague Convention – even though the Convention is expressly designed to secure the expeditious return of all abducted children except in extremely unusual cases – there is little or no point in Japan’s purported ratification of the treaty.

The result of Japan’s ratification of the Convention will likely be to create the appearance of Japan’s compliance with international norms but without any of the substance.

Small World, Big Problem: Divorces Involving Dual Citizenship

By Jeffrey Landers

The world is getting smaller and smaller. We live in a global society fueled by a global economy. International travel has never been easier. And now, thanks to the internet, we’re all connected in new ways and with fewer barriers than ever before. These days, people meet and fall in love across international boundaries every day, and so it’s no surprise that marriages involving dual citizenship are increasingly common

But, as you might suspect, dual citizenship marriages aren’t somehow immune to divorce or its financial implications.

I’ve written plenty about how complicated divorce can be, and how these complications are compounded by different laws in different states (for example, those governing legal separation and those concerning the distinction between separate and marital property). Throw different countries into the mix, and the challenges quickly become even more complex . . . and if children are involved, the situation can become tremendously complicated and emotionally charged. (Case in point: A few months ago, actress Kelly Rutherford’s divorce made headlines when a judge ordered her two American children to move to France because their father – who is a German citizen — was expelled from the United States.)

Jeremy D. Morley, who is a New York lawyer and the author of International Family Law Practice and The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, as well as numerous articles on international family law, summed it up nicely.

“Simply put, money can be divided but children cannot,” he told me recently. “Divorcing parents who stay in the same town can often make sensible arrangements to share the parenting of their children or otherwise a local court can not only issue appropriate orders but can also enforce them as needed. But when the parents cannot even agree on which country to live in, all bets are off.”

If you are a woman who’s part of a dual citizenship marriage and you’re contemplating divorce, or if you’re planning to move overseas with your husband or fiancé –even if just “to try it out” –please proceed with caution. Before you leave, make sure you are familiar with the answers to some common questions about divorce involving dual citizenship and/or regulations from another country:

What exactly is dual citizenship?

The U.S. Department of State acknowledges that a person can be a citizen of two countries at the same time. Sometimes, dual citizenship (or “dual nationality,” as it’s also called) happens automatically. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

In other cases, it’s a matter of choice. From the U.S. Department of State website:

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship. There are laws in some other countries that may confer citizenship there automatically. For example, this can happen if a child is born to American citizens in another country, or through marriage, or if a person does not lose the citizenship of the country of her birth on becoming a naturalized US citizen.

Dual nationals owe allegiance to two countries and are required to obey the laws of both.

My husband has dual nationality, and we’re living abroad. Where do we get divorced?

Even if you’re a U.S. citizen, the court with jurisdiction over your divorce will most likely be the one in the country where you live. If this is a country that doesn’t afford women the same rights as men, it could be very, very difficult to get a divorce, let alone a fair settlement.

If you own home(s) abroad and have flexibility as to the location and timing of your divorce, it is well worth the effort to research what the most favorable venue might be. Countries vary in their legal views of women’s rights, acceptable grounds for divorce, alimony, property distribution, child custody and child support, among other things. You may find wide disparities in how you’ll be treated in different jurisdictions, and as Jeremy points out, the financial consequences of being divorced in one jurisdiction rather than another might be highly significant.

“The difference between getting divorced in London instead of in New York can be staggering,” he explained.

Likewise, the disparity between the practices of divorce courts in Tokyo as compared to those in Sydney, and of the divorce courts in Hong Kong as compared to those in Frankfurt, may be equally vast–or possibly even more so.

As you might expect, international family lawyers are often called upon to advise whether or not a foreign divorce will be fully recognized. Surprisingly, though, providing such advice is often difficult and sometimes fraught with risk.

“It would be reasonable to expect that legislatures and courts would have developed clear ‘cut and dried’ answers to as basic a question as ‘Are we divorced?’” Jeremy said. “However, when that question is asked in the context of a foreign divorce the answer all too often is, ‘It depends.’”

I got divorced over there. Is it legal back here in the U.S.?

If you and your husband lived “there” at the time of your divorce, then probably yes.

Be aware that there is no treaty between the U.S. and any other country ensuring recognition of foreign divorces. However, the State Department notes that divorces obtained in foreign countries are generally legally recognized here, if both parties were living in the country in question when it was issued.

Several states, including California, will not recognize a divorce decree obtained abroad when both spouses were living in their home state. If you’re unsure about the validity of a foreign divorce, you should contact the Attorney General’s office in your state. You will need copies of all the documentation of your marriage and divorce and applicable foreign laws.

How do I begin the divorce process?

I regularly advise women to hire a team of qualified divorce professionals as soon as they know a divorce is in their future. In cases of dual citizenship, this is even more critical. You will need someone on your side who is expert in the divorce and family laws of the other country, as well as an expert divorce financial strategist to help you navigate the financial details of your case.

If you have children, you may want to add an expert in international custody issues to your team. These issues are notoriously complicated, the laws are hard to enforce, and the stakes could not be higher. We’ve all heard horrifying news items about parental kidnapping, in which one parent takes the child(ren) to another country, and the other parent fights for years, at tremendous expense, in hopes of bringing them back to the U.S. – sometimes without success. (For an excellent discussion related to this topic, see the article “The Plight of the Expatriate Spouse” here.)

Being well-prepared, well-informed and well-advised about the divorce process is critical for any divorcing woman, but especially so for those with an international component to their marriage. Unfortunately, a hostile divorce from a spouse with dual citizenship can be a scenario where there’s potentially very little to be optimistic about, and potentially a lot to be concerned –and even alarmed –about.

Still, as our world continues to get smaller and smaller, international and/or dual citizenship divorces are going to become increasingly common. The good news is that as these cases become more routine, more help will become available for women facing the challenges of dual citizenship divorce. Remember: If your relationship spans international borders, make sure your divorce team has the qualifications and experience you require.

“As people travel, set up residences in different countries, and become involved in international business (and personal) affairs, they necessarily expose their personal lives to an array of different legal structures,” concludes Jeremy. “In some quarters, forum-shopping is a dirty term, but in international family law it is often an essential process. In fact, it could even be considered gross negligence if a divorce lawyer were to select the appropriate jurisdiction based on the location of the lawyer’s office rather than on the best interests of the client. If the client has the option of bringing suit in more than one jurisdiction it is absurd to suggest that the lawyer does not have a serious obligation to consider which jurisdiction would likely yield the preferable result.”

http://www.forbes.com/sites/jefflanders/2013/01/10/small-world-big-problem-divorces-involving-dual-citizenship/