Queen officially enacts same-sex marriage law; churches & celebrants not forced to cooperate

SAME SEX MARRIAGE BILL RECEIVES ROYAL ASSENT

"... The first same sex wedding could take place by as early as summer 2014. The legislation will introduce civil marriage for same sex couples, and enable religious organisations to opt in to conduct same sex marriages if they wish to do so. The Act includes provisions intended to protect religious organisations and individuals from being forced to conduct same sex marriages.

"The Act will also enable civil partners to convert their partnership to a marriage and would enable married transsexual people to gain legal recognition in their acquired gender without having to end their marriage. However this will follow later than summer 2014 as it will take government departments longer to implement all the necessary processes. ..."


US rightly refuses Hague Convention case for child-stealing, but state court can return child

I've never heard of a nation's government refusing to process a request for return of a child under the Hague Convention on child abduction, and to let the petitioner then go to a court for a decision on whether to return the child. It must happen sometimes, but you don't tend to hear of it. But the U.S. State Department is absolutely right to do that in the case of Anyeli Hernandez, who was abducted from Guatemala over a year before the Convention went into effect there. "Hernandez, now seven, was abducted in November 2006 and wound up, illegally, with an adopting American couple. ... Guatemalan authorities have prosecuted three people for kidnapping and for placing Anyeli Hernandez up for adoption." ("U.S. will not return illegally adopted Guatemalan girl" - Agence France-Presse, Tuesday, May 15, 2012)

The Hague Convention very clearly says that it only applies to cases where the Convention was in effect between both countries at the time of the abduction. But as the State Department points out, the real mother in Guatemala can still go to the local courts where the child lives to enforce her custody order and undo the adoption. That is not just a theoretical cop-out by the State Dept. - it is something that we and other lawyers do all the time, using a uniform state law, the Uniform Child Custody Jurisdiction and Enforcement Act. It helps many parents in cases where the Hague Convention does not apply.


 


Aussie great-gram on the lam w/4 kids; gov't refuses to assist abduction

This sounds like a very straightforward child abduction case without any of the typical defenses or complications. The parents had joint legal and physical custody in Italy, the mother took the kids on vacation to Australia, and kept them there. The father won a Hague Convention suit for their return nearly a year ago, but the mother appealed and lost, and then her grandmother disappeared with the children. Her family has gotten local media and politicians involved on her side, but the government is defending the treaty and the independent judiciary that enforces it.


 


Yes, New York Times, there Is No-Fault Divorce in England

It seems like whenever anyone wants to do make any change in divorce laws, the only story the media cares to write about is "Fault" versus "No fault" divorce -- both of which are understood in terms of caricatures from generations ago, with little or no attention to what the new proposals, or current law, actually do. Now the New York Times (Lyall"Tuna Again? In Fault-Finding England, It’s a Cause for Divorce", 4/7/12) says England "does not have a no-fault divorce law. ... There was a push in 1996 for a no-fault divorce law, but the plan died amid worries that it would make divorce too easy."

England has actually had a no-fault divorce law since 1973 (below). It allows divorce based on living apart for two years if there's mutual consent or desertion; and five years even if there isn't. As for the 1996 reform, it was enacted into law under the John Major government, but by the time it was supposed to be implemented, Tony Blair had been elected and his government decided not to implement it. 

The 1996 no-fault law cut the waiting periods to one year, but it also did something unique and, I think, brilliant: it applied the waiting period to all divorces, eliminating "quickie" divorces on petty "fault" grounds (several of which the Times article describes in amusing if nauseating detail). The drafters realized that when you impose only a minor speed-bump on the way to divorce, you don't have to provide all the exceptions that would be needed in the case of a 5-year or longer waiting period. Although the 1996 law was never put into practice in England, it was copied in Fiji (where it also included extensive provisions for marriage counseling and education), and has inspired two similar multi-state reform proposals in the U.S.: The Parental Divorce Reduction Act and the Second Chances Act.

The caricatures of divorce law that the media has been using since at least the 1960s are (1) "Fault Divorce", in which even two spouses who both want a divorce cannot get one unless they convince a judge that one of them has committed adultery or domestic violence, often with faked evidence, and (2) pure "No-Fault", in which anyone can demand and get a divorce any time, with no wait, regardless of what the other spouse wants or needs, and nobody's behavior gets considered in court. But in reality, nearly everywhere has something in between these two extremes, and the real issue is not whether to have no-fault, but how.

++++++++++++++++++++++++++++++++++++++ 

Matrimonial Causes Act 1973

Section 1. Divorce on breakdown of marriage.

(1)Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2)The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a)that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b)that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c)that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d)that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e)that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3)On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

(4)If the court is satisfied on the evidence of any such fact as is mentioned in subsection (2) above, then, unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to section 5 below, grant a decree of divorce.

(5)Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of six months from its grant unless the High Court by general order from time to time fixes a shorter period, or unless in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.

 


Gov't services & residency for immigrant domestic violence victims made permanent

Migrant domestic violence support scheme extended - BBC 3/30/12

A scheme to help migrants forced to leave relationships as a result of domestic violence is being made permanent, the Home Office has said. The move follows a pilot project that has provided support for 1,522 people, including 738 women with children. The initiative assists victims who would otherwise be destitute or have no access to public funds. ... The government said that in many cases victims were afraid to seek help because they lacked financial support and feared they would be removed from the UK if their relationship failed. ... Those eligible for the scheme will be granted a limited period of exceptional leave to remain by the UK Border Agency. Victims would be able to access financial and support services, such as a refuge, and be allowed to apply for UK residency.

 


New Calif. law for gay divorce also fixes interstate problem, honoring marriage as contract

A new law signed by Governor Jerry Brown not only allows gay divorce; it allows it for couples married in California who have moved to states where gay divorce is unavailable. Until now, jurisdiction for divorce has been based only on the spouses' residences at the time of the divorce, regardless of where they got married, which meant that same-sex couples could be left with no state that is willing and able to divorce them. 

This new California rule is actually more compatible with the contractual nature of marriage. As a specialist in interstate and international family law working in a cosmopolitan area, I already get calls and e-mails from people who assume that they need to get divorced in the same place where they married even though they no longer live here (including expats and diplomats who cannot get divorced anywhere else, because many countries are reluctant to divorce foreigners, and displaced Lousianans who had no idea that their Covenant Marriages mean nothing across state lines). After all, contracts generally -- even prenups -- are governed by the law of the place they were made. The rule, unique to family law, that your case is governed by the law of the state where one party goes and files, does not sit well with a lot of people. Nor should it. That rule is actually at the root of the centuries-old American problem of "migratory divorce" -- people getting out of a marriage by running to a state with easier divorce laws -- which made it mostly futile for states to restrict divorce, which in turn led to practically universal quickie no-fault divorce laws. Likewise, it inspired and facilitated interstate and international child abductions -- taking a child to another state or country to obtain a favorable custody ruling -- which it has taken my entire lifetime to bring under control with several Uniform Laws and treaties, beginning with the Uniform Child Custody Jurisdiction Act in 1968.

I hope this new California law rings in a new openness towards treating marriages as contracts when deciding when, where and how they can be dissolved.


Are some Chinese adoptees actually abducted, trafficked? - NYT

"For Adoptive Parents, Questions Without Answers" - New York Times 9-16-11 reports on the effect on international adoption families of an earlier Times story from China:

Chilling news for many adoptive parents: government officials in Hunan Province, in southern China, had seized babies from their parents and sold them into what the article called “a lucrative black market in children.”

... the latest in a slow trickle of reports describing child abduction and trafficking in China. ... Child abduction and trafficking have plagued other international adoption programs, notably in Vietnam and Romania, and some have shut down to stop the black market trade.