This site tracks developments in international family law from Richard Crouch and John Crouch of Crouch & Crouch in Arlington, Virginia. Our international practice has grown naturally from our location in our native Arlington, where our clients include many military, diplomatic and immigrant families, international organization employees, IT professionals, etc. This blog's purpose is to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. These postings do not provide a comprehensive description of the law. In fact, they will surely contain statements that were true at the time but have become less valid as the law continues to develop.
The Philippines has "acceded to" the Hague Child Abduction Convention - -which means ratification, for countries that were not members of the original "Hague Conference" that writes "Hague Convention" treaties on "private international law" -- i.e. international dealings, such as trade and litigation, between private parties, not governments. It will the the 94th nation in the treaty. Other members in the region are Japan, South Korea, Hong Kong, Macao, Singapore, Thailand, Sri Lanka, Australia and New Zealand.
As U.S. Ambassador Susan Jacobs has pointed out,
"With ten million Overseas Filipino Workers (OFWs) and the rise of bi-national marriages, the Convention’s importance for the Philippines and its citizens could not be more relevant or urgent. It is no longer unusual to know an aunt, neighbor, friend, colleague, uncle, sister, or cousin who has had a child abducted to a foreign country. If you do know someone, my next question may be difficult. Did that child ever return to the Philippines? The reality is that since the Philippines is not a party to the Convention, it is not uncommon for abduction cases to remain unresolved for years, resulting in an often prolonged and painful separation between children and their parents. Philippine citizen parents currently have limited remedies to seek the return of their children from abroad; this is why joining the Convention now is of the utmost importance."
Countries that "accede" to a Hague treaty instead of ratifying do not automatically enter a treaty relationship with other countries in the treaty. The other countries choose whether, and when, to "accept" that country's "accession" and have a treaty relationship with the newcomer. Without that bilateral relationship, the Hague Convention does not apply to a case between two countries. The United States has grown wary of accepting accessions from countries that do not seem equipped to implement the Hague Convention and actually comply with it, and State Department officials have reported that they thought some such countries actually acceded to it by mistake, getting it mixed up with another Hague treaty.
But the United States sounds eager to welcome the Philippines into this treaty. It has sent four delegations in recent years to work with various government agencies to advocate and prepare for the treaty to be put into practice there.
"A Saudi judge sided with a pregnant woman’s uncles and divorced the wife from her husband on the grounds she is of superior origin. Maha Al Tamimi, in her 8th month pregnancy ... said her uncles filed a law suit to divorce her from her husband, a soldier stationed in South Saudi Arabia near the border with Yemen, on the grounds she married him without her father’s approval.
"But Tamimi said she had her elder brother’s consent for marriage and that her father has a second wife and is not living with them. ... Tamimi said she had taken her father to court long time ago because he had rejected all her suitors and mistreated her.
If the U.S. were to complete ratification, it would strengthen other countries' enforcement of U.S. and other child custody orders and prevent competing claims to jurisdiction; but it would eliminate (in international cases between two member countries) two very important U.S. child custody rules that make our Uniform Child Custody Jurisdiction and Enforcement Acts and Parental Kidnapping Prevention Act work so well to prevent, and not reward, child abduction: (1) our clear rule that jurisdiction for the first determination of a child's custody usually does not shift to a new state until six months after moving; and (2) that once a state or country has jurisdiction, it keeps it until everyone involved has moved away.
Everything in this Wall Street Journal article, posted on LinkedIn by the consummate family lawyer, Betty Sandler (Vanity Plate: "SCOURGE"), matches what my father Richard Crouch and I have observed in our combined 60+ years of practicing international family law. Over half our cases are international in some substantial way.
Expat scholar Yvonne McNulty, an associate faculty member at SIM University in Singapore, found in her study, “Till Stress Do Us Part: The Causes and Consequences of Expatriate Divorce,” to be published in June in the Journal of Global Mobility, that expat life brings its own form of marriage stressors. Dr. McNulty studied 38 expat divorces in 27 countries and found a range of issues: trailing spouses who may find themselves with a loss of identity after a move; a lack of a longtime community that might bolster a struggling couple; and long work hours mixed in with extensive travel that pulls couples apart."... When couples do break up the results are far more serious, she says, with international battles over child custody, confusion over which country has jurisdiction over the divorce, and huge relocation costs for companies that have sent entire families overseas.
One element that can intensify problems, she says, is the expat community itself, which can “become almost like a toxic influence on a marriage.”
“It’s like a groupthink attitude. If one or two individuals are engaging in extramarital affairs the men tend to say, that gives me permission to do it.” Some common expat destinations, particularly Asia and the Middle East, are “notorious for changing a marriage,” Dr. McNulty says.
Another problem is social isolation. Most expat couples are far removed from any kind of setting – family, friends, communities – that might have bolstered a struggling marriage. Dr. McNulty says that in her research, “one of the strongest things that came out was the lack of role models or mentors” for troubled marriages. Many of the women she surveyed said to her, “If we had been home, my parents, his parents, his brother would have pulled him up by the scruff of his neck and said, ‘What are you doing?’”
In addition, the expat community is not always willing to get involved. “When you’ve got marital problems, the other expat wives think you have a disease, and they shun you,” Dr. McNulty says.
Once in a blue moon, law review articles, even those from law schools instead of lawyers' groups, are actually helpful to actual lawyers practicing law. That may just be a tragic accident. But seriously, sometimes, when an article actually is on point, it hits it out of the park.
Here's a law review article that not only does that, but shows the value of academics' unique viewpoints in pointing out the bird's-eye view of problems that we working stiffs work with every day, but don't recognize. I think of myself as an outside-the-box, big-picture, go-upstream-to-stop-the-bodies-falling-in-the-river kind of guy, not blinkered by conventional wisdom. Yet I was caught totally unawares by this one, but had to agree with it as soon as I read the title.
Yes, after the first couple times I used it I have always tried hard not to, but I was always proud of it, of my knowledge of it, of my ability to use it as efficiently as possible, with less pompous fuss than those lawyers who love to make everything more ornate and difficult and thus make themselves more indispensable to clients. But the emperor has no clothes, University of North Texas — Dallas law professor Eric Porterfield points out in "TOO MUCH PROCESS, NOT ENOUGH SERVICE: INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE SERVICE CONVENTION", in the Temple Law Review, Vol. 86 p. 331 (2014). Yes, the treaty offers an intergovernmental service for delivering documents in other countries, but it takes two months at best, many more at worst, and in many cases the person never gets served. And although it has language saying that it doesn't interfere with other kinds of process-service, such as mail or private in-person delivery, those provisions have given many countries an opportunity to say they will not let their residents be notified of legal proceedings by those methods, only by the slow, official Hague method. Even though they allow mail and other less formal notification methods for their own non-international cases!
I had a case with India where we tried and failed to get Hague Service. The divorce and property-division was granted anyway, as the defendant filed an Answer in the case, which gave the Virginia court all the jurisdiction it needed. Besides, like many American courts nowadays, this one had "rocket-docket" rules that require cases to have initial status hearings quickly and proceed to final trials in a few months. About a year later, I got a shabby but colorful envelope with the papers I had prepared, along with a bundle of detailed handwritten letters from the process-server describing very frequent but unsuccessful visits to the defendant's last known address, and his conversations with small boys and old ladies there who always had a different story about where the defendant had moved to, or gone for an extended and indefinite vacation.
I had another case with Japan where I argued very hard to convince the judge to delay a hearing for months so that we could achieve proper Hague-Convention service, and finally a little more than two months before the hearing, the father was about to get served, but then the Justice Ministry sent everything back to me with a form which explained that the papers could not be served because the hearing was coming up too quickly for the defendant to prepare for it. Fortunately, this too was sent by such slow mail process that it, too, arrived after the hearing.
In yet another, sadly common, case, I had to have a Hungarian translator in Cleveland translate routine uncontested divorce documents into Hungarian, to be served on an American.
So in this day and age, when we and many other countries in the treaty have communication and even process-service by e-mail, and people are accessible almost anywhere and you can deal with them by e-mail, phone, etc. without even knowing what country they're in, the international cases are stuck in 1965. This treaty is probably worse than no treaty at all. It has become an anti-notification, forum-shopping, justice-obstructing, justice-delaying, justice-denying treaty, in a process Shakespeare had in mind when he wrote:
We must not make a scarecrow of the law, Setting it up to fear the birds of prey, And let it keep one shape, till custom make it. Their perch and not their terror.
-- "Measure for Measure". Using "fear" to mean "affright" or "terrorize."
Last month an appeals court in Seoul reversed a lower court ruling and gave a divorce to a petitioner who had lived apart from his wife for 25 years, with no contact or communication, after having an affair and a child with another woman.
The court said the general rule is still not to grant a divorce requested by an at-fault spouse, but there should be exceptions:
"'While being separated for the 25 years, their marriage has effectively ended,' presiding Judge Min Yu-suk said in a ruling last month. 'The plaintiff has also financially supported his children with the wife, and she now is financially stable.'
"It is the first ruling after the Supreme Court allowed more exceptions in September while maintaining the country's "fault divorce" system, in which the spouse responsible for the breakdown of the marriage is not allowed to file a divorce lawsuit.
"In a 7-6 ruling, the top court said it is too premature to change the law in consideration of the country's social and economic conditions. But it expanded the scope of grounds for exceptive cases: when the spouse at fault is taking care of his/her partner and children enough to make up for the fault and when enough time has passed to make it meaningless to place the blame. (Yonhap)"
The 7-to-6 decision implemented Korea's 1965 divorce law, which allows divorce on grounds of irreconcilable differences, irretrievable breakdown of a marriage, or others reasons that undermine a union, according to the Korea Times article. The law, as interpreted by the courts, does not allow a husband to file for a divorce on those grounds when the real reason for the breakdown is actually his adultery and desertion. He left his wife, with whom he had three children, in 2000 and began living with another woman, having one child with her.
The court was concerned that current law provides no way for the wife and children to get any support if a divorce is granted.
In most cases in South Korea, as in most divorces before U.S. states allowed unilateral divorce, the parties make a mutual agreement which gives both of them a livable financial arrangement and allows the divorce to happen regardless of fault.
"More than 77 percent of the couples here divorce after assuming some portion of blame, which is in effect no different from no-fault divorce recognized in other countries," the court's majority said.
The case has caused great controversy in Korea. Those wishing to allow unilateral no-fault divorce cite a "right to freedom of choice and to the pursuit of happiness" and say marriage is a private, personal relationship. Supporters of current divorce law cite the financial distress divorce imposes on women and children. They say changing the law would erode personal responsibility and mutual trust in society. They also say that under the country's civil law system, marriage is a legal contract requiring effort, good faith and contribution from both parties, just like other contracts.