International Child Abduction to India – One Case among Many

Jeremy D. Morley

                                           
I have repeatedly opined, and I have frequently testified, that India is a safe haven for international child abduction. India has elected not to sign the Hague Abduction Convention and Indian courts generally do not enforce foreign custody orders.

In one extremely exceptional case, Arathi Bandi vs Bandi Jagadrakshaka Rao, (Sup. Ct. of India, 2013), the Supreme Court of India did ultimately issue a conditional order for the potential return of an abducted child to the United States. However, the order was issued five years after the abduction. Moreover, the Court provided any abducting parent with a road map as to how to accomplish an abduction more effectively than the abducting mother in that case.

In Bandi the parties were married in Atlanta, Georgia and relocated to Seattle, Washington where their child was born. In a custody case in Washington State, the mother was given residential custody of the child but her petition for relocation to India was denied. In violation of orders of the Washington court the mother took the child (then age 3) to India in August 2008 and retained the child there. The Washington court then modified the parenting plan so as to give custody to the father and a warrant for the mother’s arrest for custodial interference in the first degree was ultimately issued in Washington State.

The father promptly filed a case in the Andhra Pradesh High Court in India seeking the return of the child. An array of procedural matters, court hearings, changes of attorney, police involvements, excuses, family deaths and other events then transpired. Among other things, the mother brought criminal charges in India against the father under the notorious Section 498A of India’s Penal Code. One of the purposes of such a filing in an international child abduction case is to deter the left-behind father from entering India to recover an abducted child. All of these devices delayed the case until July 16, 2013 when a decision was issued by the Supreme Court of India that conditionally ordered the mother to return the child – then age 8 – to the United States.

In ultimately ordering the child’s return the Supreme Court stressed that because the mother had herself not initiated her own custody case in India there was no reason not to order the child’s return. However, in my experience the abductor usually starts such a case. And the India courts usually retain the case. It was most unusual in this case that the mother did not initiate a custody case.

Nonetheless, it took five years for the Indian courts to complete the case. The child was three years old when he was abducted and eight years old when the return order was ultimately issued.

Even then, however, the Indian courts imposed conditions that the father was required to fulfill before any return order was effective. The various conditions included the following:

                                                                    i.   The father was required to obtain and pay for airline tickets for the return of both the mother and the child to Washington State;

                                                                  ii.    The father was required to deposit the sum of US$5,000 in the mother’s name to enable her to engage an advocate in the United States;

                                                                iii.    The father was required to provide “necessary arrangements” for the stay of the mother and child “in suitable accommodation in a locality according to her status prior to the dissolution of marriage for a period of three months on their landing in USA”;

                                                                iv.    Prior to making any travel arrangements the father was required to “move the Court of Competent Jurisdiction in USA for withdrawal of the bailable warrants issued against the [mother] to enable her to attend the custody proceedings in the US Courts”; and

                                                                  v.     Upon the bailable warrants having been withdrawn, the father was authorized to personally escort the mother and the child from India to the USA.

In fact the fourth condition was likely impossible for the father to accomplish since arrest warrants (apart from bench warrants) cannot be dismissed unless the United States Attorney or the District Attorney determines that it is in the public interest to do so. Accordingly, while the order invited further court proceedings in India because the conditions were not merely onerous but were unworkable.

Subsequently the father was required to move to hold the mother in contempt of court and on April 11, 2014 the Indian Supreme Court issued a further order which directed the wife to supply an attested copy of her and the child’s passports, since the mother’s failure to provide those documents had prevented the father from making any travel arrangements. The Supreme Court later listed the matter for yet another hearing “for directions” on July 15, 2014.

By that date about six years had elapsed since the child’s abduction.

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International Divorce and Child Custody Issues Relating to Thailand

by Jeremy Morley

Family relationships between expats or people of different nationalities or domiciles in Thailand may create special issues that often require an analysis of the "big picture" by an international family lawyer.

All too often clients and even their local lawyers do not understand or focus on the specific benefits or dangers that may arise from the connections that one or both parties have with foreign jurisdictions.

A key role of the international family lawyer is to review the "big picture" of an actual or proposed family law case that has an international component. In most such cases the international family lawyer will work with local lawyers in the various jurisdictions.

Prenuptial Agreements. Such agreements are permitted under Thai law and will normally be enforceable there. However, for international people that is the beginning, and certainly not the end, of the story. It is often absolutely essential to consider the effect of a Thai prenuptial agreement if a divorce is initiated outside Thailand. That is particularly so because, when relationships between international people break down, one party often relocates to his or country of origin or to another place in the world.

Mutual Consent Divorces. In Thailand divorce may be obtained by mutual consent without going to court. It is a purely administrative procedure. Civil and Commercial Code, Sec. 1514. However, not only does one need to determine whether such a "quickie" divorce is obtainable (for example, it requires that you previously registered your marriage at a local district office) but you need to consider whether it is advisable. Such a divorce requires that  there are no disagreements over child custody or property. But you also need to ascertain whether the divorce will be recognized in other jurisdictions, not only by courts but also by administrative agencies such as immigration authorities in other countries.

Judicial Divorces in Thailand. It may well be preferable or necessary to seek a divorce through the courts in Thailand, but there are many issues to consider in this regard.

At the outset you must ascertain whether there are any grounds for a divorce. Under Thai law (Civil and Commercial Code, Sec. 1516), a judicial divorce may be obtained on any of the following grounds:

    1. Adultery;

    2. Misconduct causing shame or hatred to the other party;

    3. Serious harm or torture to the body or mind of the other;

    4. Serious insult to the other or his or her ascendants;

    5. Desertion for one year;

    6. Imprisonment for one year;

    7. Separation for three years;

    8. Disappearance for three years;

    9. Failure to provide proper maintenance and support;

    10. Incurable insanity for three years;

    11. Breach of a bond of good behavior;

    12. A communicable and dangerous disease which is incurable and may cause injury to the other; or

    13. A physical disadvantage so as to be permanently unable to cohabit as husband and wife.

However, a judicial divorce is also permitted by mutual consent if it is permitted by the law of the parties' common nationality Conflict of Laws Act, Sec. 26.

Furthermore a divorce cannot be granted by a Thai court unless it is permitted by the law of the parties' common nationality. Conflict of Laws Act, Sec. 26.

Division of Assets. The Thai law concerning the division of financial assets upon a divorce is set forth in the Civil and Commercial Code

There is a critical distinction between personal property, known as “"Sin Suan Tua”" and conjugal property, known as “"Sin Somros.”"

Sin Suan Tua (Code, Sec. 1471) consists of:

    (1) Property belonging to either spouse before marriage;

    (2) Property for personal use;

    (3) Items necessary for the person's job or profession;

    (4) Property acquired by either spouse during the marriage through a will or gift; and

    (5) Engagement gifts.

 Sin Somros (Code, Sec. 1474) consists of:

    (1) Property acquired during the marriage;

    (2) Property acquired by either spouse during the marriage by means of a deed declaring the item to be Sin Somros; and

    (3) The fruits of Sin Suan Tua.

In case of doubt as to the category of a property, it shall be presumed to be Sin Somros. Code, Sec. 1474

If Thai law applies, Sin Somros property is divided into equal shares between the parties upon a divorce. Code, Sec. 1533. Sin Suan Tua property is not divided upon a divorce. Obviously a key issue in cases in which a party has a business is whether the business is in one category or the other. The statute reads as if a business run by one spouse will be that spouse's separate Sin Suan Tua. If one party has disposed of property that required the permission of both spouses, the guilty spouse is liable for the destruction of the property and its value is taken into account during the division of the Sin Somros. Code, Section 1534.

If divorce is based on the fault of one spouse, who has intended to make the other party's situation so intolerable that an action for divorce has to be entered, the other party is entitled to "c“ompensation," ”which might be payable in one lump sum or periodically. Code, Secs. 1524-1525.

However, international people need to be aware of the Thai Conflict of Laws Act. Section 22 of that Act provides that, in the absence of a prenuptial agreement, issues concerning the property of the spouses upon a divorce are governed by the law of their common nationality but if they have different nationalities these  issues are governed by the law of the husband's nationality.  However issues concerning immovable property are determined by the law of the place where the property is situated.

Notwithstanding the above, it is very often not only sensible but essential for international people to consider whether their case should be brought in Thailand or whether there is jurisdiction in another location for a divorce case and whether there are advantages - and disadvantages - of doing so.

Child Custody Law in Thailand. Courts in Thailand Family courts are required to make child custody determinations based on determining the best interest of the child. Generally the court-established Observation and Protection Center will make a report and recommendations based on a social worker's evaluation of the parents and child. Despite the obligation to focus on what is best for the child,

Strategic International Family Law. We have long recommended that 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.

2.      Analyze and understand the issues concerning children, especially custody and visitation in the international context.

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

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

5.      Focus on a few jurisdictions.

For each "target jurisdiction" we look at:

          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:

                    1)  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).

                    2)  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).

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

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

                    5)  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.

          6) "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).

j. The rules concerning children. Jurisdictions around the world vary enormously in their treatment of children upon a divorce. The 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; and freedom to take children overseas versus inability to do so.

__________________________________

The Law Office of Jeremy D. Morley, www.international-divorce.com, is extremely experienced in handling international family law matters concerning Thailand, always with local counsel in Thailand as appropriate. We have represented very many clients, both Thai and non-Thai, in international divorce and child custody cases that concern Thailand.

International Prenuptial Agreements: Necessary But Dangerous

 

Lawyers representing international clients who plan to marry and who want the protection of a prenuptial agreement should always consider the international ramifications of any proposed agreement. While conventional domestic prenuptial agreements raise grave malpractice concerns for family lawyers, the concerns become a hazardous minefield when the issues are multi-jurisdictional.

In many ways the world is rapidly shrinking and globalizing. “The World is Flat” is not only the catchy title of a bestselling book, but it also highlights the fact that international borders matter far less to most aspects of life than was the case a couple of decades ago. In sharp contrast, however, divorce laws remain local and parochial. Not only do divorce requirements and procedures vary from country to country, but so do the substantive laws concerning the division of assets and spousal and child support. Moreover, the laws about prenuptial agreements and marriage contracts vary considerably around the world and – just as important – the attitudes of courts to such contracts diverge considerably, significantly and in many different ways from country to country. Outside of the European Union there is generally no international law that governs the application of local law to international personal relationships.

Certainly it would be foolish to assume that a "prenup" that is currently valid in the place of the marriage or the place of current residency will be equally valid in other places which might have divorce jurisdiction in the future. 

International People

International issues concerning prenuptial agreements are obviously of critical importance for people of different countries of origin or for people from a country other than the place where they currently reside. But there are far more clients who may require international support concerning prenuptial agreement matters. Many clients have significant contacts with numerous countries or believe that they may in the future. Take the example of an international symphony conductor who may have ongoing appointments with many orchestras and festivals around the world, teaching positions with universities and conservatories in other parts of the world, and personal connections and assets in yet more parts of the world. What if his fiancée is an international business consultant? Or an international movie star? In such circumstances, where does the lawyer start? And where does the process end?

We recently represented an American business executive living in country A in Europe who was planning to marry a woman in the same city who was from country B. We knew that residency in country A created red flags as to the future enforceability of the proposed prenuptial agreement there. We elicited the fact that the parties might temporarily relocate to States C, D or E in the United States or to countries F or G in Europe.  We further ascertained that they could potentially move to any of a host of countries in the future but that countries H, I and J were more likely than the others. Accordingly, we drafted a prenuptial agreement and certain other documents in close collaboration with attorneys in jurisdictions A, B, C, D, E, F, G, H, I and J.

While such precautions are time-consuming and expensive, it would often be “penny wise and pound foolish” (as the old British saying goes) to skimp on the prenup and leave it all to courts to resolve if and when things go wrong.

The need for extreme care and self-preservation in such circumstances hardly needs emphasizing.

Potential Jurisdictions

Lawyers representing international clients are now more frequently recognizing that a prenuptial agreement must often be drafted with a view to its potential enforceability in an array of potential jurisdictions. These might include any of the following:

·         The state of current residence of the husband.

·         The state of current residence of the wife.

·         The state of domicile of either of them.

·         The state of the nationality of each of them.

·         The states to which they might relocate together in the future.

·         The states to which just one of them might relocate.

Selection of the Governing Law

A critical element of any international prenuptial agreement is the choice of the jurisdiction under whose law the agreement will be drafted. Obviously lawyers should not be wedded to their own jurisdiction as the “home” of the agreement. It must also be recognized that silence as to the choice of law is in many respects equivalent to the express selection of that jurisdiction.

The decision as to the best choice of law provision cannot be made without being adequately informed as to the applicable laws and practices of the various competing jurisdictions and as to the potential effect of the foreign law in any of the potential jurisdictions. The decision should also be made upon the advice of counsel who has substantial experience in such matters, who is independent in thinking, and who has consulted or will consult with appropriate local counsel in other relevant jurisdictions. It is likewise important to be aware that choice of law clauses may or may not be valid in other jurisdictions.

A choice of law clause should usually be drafted broadly. In one case a court in Oregon applied the law chosen by the prenuptial agreement -- California law -- only as to the construction of the agreement, but did not apply California property law because the choice of law clause was limited to construction issues. In re Marriage of Proctor, 203 Or. App. 499, 125 P.3d 801 (2005), opinion adhered to as modified on reconsideration, 204 Or. App. 250, 129 P.3d 186 (2006). Choice of law clauses should provide for both the application of both substantive and procedural law of the foreign jurisdiction to be effective.

Basic Principles

The following are some basic principles that the author has developed from handling many such agreements throughout the world over a number of years:

1. This is a very highly specialized area. There is much more risk for the family law practitioner who agrees to handle an international agreement than is the case with a conventional prenuptial agreement. These matters are tricky and they require great care. Do not handle international prenuptial agreements unless you have experience or are collaborating with an international family lawyer who handles international prenuptial agreements regularly.

2. Ensure that only one lawyer is in charge of the entire process, is the chief coordinator among the various lawyers in different jurisdictions that work on the prenuptial project and is the primary (or sometimes the sole) liaison with the client. If one lawyer is not clearly in charge there may well be great confusion, lawyers will be tempted to jostle for a larger role than might be appropriate, the client will receive conflicting advice and important issues might never be addressed.

3. Do not take on the process of drafting an international prenuptial agreement unless you are prepared to work with foreign counsel, to understand foreign law, to become familiar with different legal concepts that may apply to your client's circumstances and to work in an environment in which there are no clear-cut rules or procedures in which you may often feel compelled to consult your malpractice policy.

4. Make it clear to the client that you are admitted to practice only in Jurisdiction A (or perhaps A and B); that while you may have a little familiarity with Jurisdiction C, you are not admitted to practice there; that anything that you might say about the law of that jurisdiction is strictly subject to the client's confirmation with local counsel; that you have no familiarity with the laws of Jurisdictions D, E, and F; and that you will endeavor to find out what you can about the laws in those jurisdictions but you will need to rely on local counsel and that it is local counsel's advice upon whom the client will ultimately be relying. Back this up with a letter to the client and notes to your file.

5. Obtain clear authority from the client to engage the services of local family lawyers in other jurisdictions for the purposes of advising as to the laws and procedures of their own jurisdictions.

6. Be clear on client confidentiality when you hire a foreign lawyer. The rules vary considerably.

7. Obtain funding to cover all of the anticipated legal charges. It is critical to know that you may be responsible for the legal fees of lawyers you ask for help in foreign jurisdictions. See the International Bar Association's International Code of Ethics, Rule 19, which provides, in part, that, “Lawyers who engage a foreign colleague to advise on a case or to cooperate in handling it, are responsible for the payment of the latter's charges except express agreement to the contrary.” Find out what fees each lawyer charges and how the lawyer expects to be paid. In some countries, fees are fixed by local law. You should establish a workable billing schedule. Foreign lawyers may not be accustomed to including a description of work performed in connection with billing. Some foreign attorneys may expect to be paid in advance. Others may demand payment periodically and refuse to continue until they are paid. Request an estimate of the total hours and costs of doing the work. Be clear who will be involved in the work and the fees charged by each participant.

8. When reviewing foreign law, be careful to understand the terms that the foreign local lawyers use. For example, foreign terms might be translated into English as “marital property”, “custody”,  “ownership” and “commingled” but the terms might well have completely or even subtly different meanings in the foreign jurisdiction which could seriously impact the way that a contract is interpreted. Become familiar not only with the law as it is written in the foreign jurisdiction but the law as it is actually applied and as it might apply to your particular client if the prenuptial agreement were brought before the courts in that jurisdiction. In this regard, it is critical to determine how much discretion is afforded to a judge in the foreign jurisdiction to rewrite specific provisions or to take any action other than strictly applying the law concerning prenuptial agreements.

9. Check out the conflict of laws issues. Be alert to the fact that a contract executed in one jurisdiction might in any particular jurisdiction be governed by another jurisdiction's law. You may even need to consider renvoi rules (perhaps for the first time since cramming in law school for a Conflicts exam) insofar as another court that applies its own law to a prenuptial agreement might include its laws on the conflict of laws, which might require the court to apply the laws of another jurisdiction.

10. Inform the client that you do not know where the client and his or her spouse might reside in the future, where their children, if any, might be located and where either or both of them may in the future have assets or do business. All of these factors may have an enormously significant bearing on the enforceability of their prenuptial agreement.

11. Some jurisdictions still do not enforce prenuptial agreements. Other jurisdictions have rules that make it easy for a court to invalidate a prenuptial agreement. In some such situations, it is also good practice to consider whether the parties should sign so-called “mirror agreements” that contain essentially the same terms as the primary agreement but are executed in accordance with the local law and are to come into effect only if the primary agreement is not recognized by a local court. It is sometimes good practice to have the parties execute a simple regime selection document at the time of their marriage in a civil law country such as France or Italy while at the same time having a far more complete agreement entered into in a common law jurisdiction such as New York or California that cross-references the civil law selection.  If there is to be more than one agreement it is important to decide how to prioritize between them and to avoid unnecessary confusion by having multiple agreements that cover the same topic.

12. It may well be prudent to insist that there be compliance with both the procedural and substantive requirements of the toughest potential jurisdiction, or even that each and every hurdle to overcome for enforceability in any of a list of jurisdictions should be fully complied with.  This may mean that counsel should ensure compliance with all of the execution requirements of every potential jurisdiction.

13. One must be alert to the fact that the way that the courts of a particular country apply foreign law may vary considerably. Thus, in a totally different context, the author worked on a custody case in Japan in which a Japanese court ruled that the provisions of California law requiring that both parents be permitted to be substantially involved in the lives of their children meant that a (good) foreign father could visit his child once a month for a few hours under supervision!

14. One must also be alert to varying rules in other jurisdictions as to validity of execution; requirements for independent representation; disclosure of assets; fairness; and unconscionability. One example is that of disclosure. It may suffice in one jurisdiction to attach an appendix that lists in summary form a party's assets and liabilities. However, in California it is the practice for the attorneys for each party to deliver a “disclosure packet” to the other party containing the last three years' personal tax returns as a well as a schedule of assets and liabilities and if the party owns a business to also deliver three years of business tax returns and a profit and loss statement.

15. Make it clear to the client that you are not an oracle and that you cannot predict the future. Therefore you do not know what the law will be in any particular jurisdiction, even including your own, in the future and how it might be applied by the courts in any such jurisdiction. Consequently, you are unable to guarantee that the prenuptial agreement will be enforceable at the time in the future when a court in your own jurisdiction or in a foreign jurisdiction might look at it.

Conclusion

International prenuptial agreements are traps for the unwary or unknowing. They are extremely important to clients but must be handled with great care by family law counsel.
 

French Marriage Contract Unenforceable in England

Jeremy D. Morley[1]

A newly-reported ruling of the English High Court on prenuptial agreements demonstrates (a) the sharp division between the law in France concerning marriage contracts and the law in England; (b) the need to appropriately forum shop when strategizing a potential divorce; and (c) the continuing strong paternalism of the English judiciary in family law cases. Y v Y (Financial Remedy - Marriage Contract) [2014] EWHC 2920 (Fam).

The parties were French nationals who lived together in France at the time of their marriage. They entered into a French marriage contract pursuant to which they selected the standard-form regime of separation de biens, whereby each spouse keeps his or her own assets, whether in existence at the time or subsequently acquired, separate and free from any claim by the other unless jointly acquired and specifically held in joint (or common) ownership.

The marriage contract itself did not contain any specific reference to the dissolution of the marriage (other than by death), but under French law its terms would certainly govern a divorce.

The parties met with a notaire in Paris shortly before they signed the contract but, as is usual in France, they did not have separate counsel. However, it is the duty of a notaire in such circumstances to act for both parties equally, to read the marriage contract and to explain its effect to both parties.

Shortly after the marriage the parties relocated to England, where they lived and had a family throughout a long marriage, but they retained strong connections to France and remained domiciled there. The husband worked as a banker while the worked in business.

The parties and the Court agreed that if the case had been heard in France the marriage contract would be absolutely binding and would govern the divorce.

However, in England the governing law is that which was set forth by the U.K. Supreme Court in the seminal case of Radmacher v. Granatino, 2010] UKSC 42. There, the majority stated that, “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” (emphasis added). In considering whether each party had a “full appreciation” of the implications of such an agreement, the majority stated that, “'What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.”

In Y v. Y, Mrs. Justice Roberts applying the Radmacher test and determined that, although the wife conceded that she understood from the outset that the marriage contract provided that she and her husband would have separate ownership of their assets during the marriage, she did not understand that this would apply if they were to divorce and she did not have all of the information which was likely to have been material to her decision. Consequently, all of the assets that each of the parties had accumulated during the marriage, mostly by the husband, comprising many millions of pounds, should be divided equally.

The judge’s decision on the facts concerning the inferred intentions of the wife, and the extent of her understanding at the time the contract was signed, were made despite the existence of substantial evidence to the contrary, including expert evidence from French counsel that, when a French notaire conducts the meeting that must be held before any such agreement is signed, the notaire explains and reads out the draft marriage contract, answers questions the parties may have, and normally explains how the provisions of the marriage contract will apply, notably in the event of dissolution of the marriage (in the event of death or divorce). In addition, this was not a case in which the wife was unsophisticated; indeed, she had worked throughout most of the marriage “at a senior management level” and had earned a substantial income.

The U.K. Law Commission has proposed that prenuptial agreements should be enforceable in England and Wales, but subject to an exception if an agreement does not satisfy the “financial needs” of the parties. I have previously opined that the exception is far too broad and indefinite, especially given the insistence of the English judiciary to oversee such agreements and to ignore them when a judge deems it appropriate to do so. The decision in Y v. Y. demonstrates exactly the kind of judicial intervention that the Law Commission should anticipate if it recommends a broad “needs” or “fairness” exception to any legislation that purports to authorize prenuptial agreements. The French parties living in France chose to enter into a French agreement that would be fully enforceable in France, but the English court undermined that certainty and party autonomy and substituted its own determination of what was fair in the circumstances.

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[1] Jeremy Morley works with counsel in England and France in handling complex international divorce issues. He strategizes with clients and lawyers in handling such issues. 

Japan and the Hague Abduction Convention: An Update

Jeremy D. Morley[1]

A few cases have been initiated in Japan under the Hague Abduction Convention. Unfortunately decisions in Hague cases in Japan are not being officially reported, are private and are not accessible.

There have been newspapers reports about two cases of voluntary returns from Japan -- one to Germany and one to Canada -- and about a case in Osaka in which a court issued a return order but the return has been stayed pending an appeal.

From discussions with colleagues and consular officials in Japan it appears that no case there has yet determined or analyzed concerning the critical issue of the “grave risk” exception. 
 
The serious concern in this regard is that Article 28 of Japan’s Act for Implementation of the Convention on the Civil Aspects of International Child Abduction expands the scope of the Article 13(b) exception in several significant respects.

Thus, although the Convention provides that “grave risk” is not an absolute defense, but merely provides a court with a right, in the exercise of the court’s discretion, to choose not to return the child to its habitual residence, the Japanese law eliminates that discretion.

The Japanese law also adds three “circumstances” that a court “shall consider” whenever the grave risk defense is asserted. These are:

          i.            The first such circumstance is that courts are directed to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence, and defines violence to include “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language.

 

        ii.            The second circumstance is if there is “a risk” that the taking parent “would be subject to violence etc. by the petitioner” in the state of habitual residence. However, the language of the Convention limits the scope of the grave risk exception to a risk to the child, not to a parent of the child.

 

      iii.            The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” However, this “circumstance” is entirely beyond the scope of the Convention..

Likewise, there seems to have been no case in which the new provisions concerning enforcement in the implementing legislation have been tested. Custody orders in Japan are unenforceable. The drafters of the legislation implementing the Hague Convention were required to create enforcement processes for the first time in Japan, which explains in part the fact that the statute is unusually long. The provisions concerning enforcement have apparently not been implemented in any specific case.

I also understand that all access cases are being submitted to the regular Family Courts pursuant to the regular procedures for custody cases and that the mediation that is required to be conducted in such cases is the regular mediation process rather than the expedited mediation that has been set up for Hague return cases.  Unfortunately, mediation in family cases in Japan is generally, in my experience, extremely unhelpful, time-consuming and onerous for non-Japanese litigants. Accordingly, parents with access claims are generally extremely disappointed that their plight has not been improved.

All in all, it is too soon to determine the extent to which Japan is in compliance with its obligations under the Hague Abduction Convention.

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[1] Jeremy D. Morley is an international family lawyer in New York who works with family lawyers throughout the United States and globally. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of countries around the world, including India, Japan, China and Western Europe. He may be reached at jmorley@international-divorce.com.