International Family Law News & Analysis

All Process, No Service: Serious bid to replace justice-delaying / obstructing Hague int'l process-service treaty

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.

Everyone knows that multilateral treaties are wonderful, progressive, and modernizing, right? And if you know that there is a treaty on serving court documents on litigants internationally, then you believe, as I always did, that it greatly improves international unity and comity by offering a single, simple procedure in which every country provides a way to serve anyone with a lawsuit from anywhere. This is the "Hague Service Convention" (long title: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361.)  

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."

But how, then, to reshape it? Read more at:

Eric Porterfield, "TOO MUCH PROCESS, NOT ENOUGH SERVICE: INTERNATIONAL SERVICE OF PROCESS UNDER THE HAGUE SERVICE CONVENTION", Temple Law Review, Vol. 86 p. 331 (2014).

90% of Shari'a marriages invalid under Western law, leaving women doubly unprotected - new report

There is nothing in Western countries' laws that discriminates against Muslim marriages, but many immigrant wives -- 90%, says a new study -- are legally unmarried because there was no civil license or celebration, or because they are second, third or fourth wives. And that non-recognition is very convenient for the husbands, because as legal strangers the wives have no occupancy, property or maintenance rights under most Western countries' laws. Often, the women know nothing about this until it is too late. But does this mean that there should be less, or more, recognition of, and legal accomodation to, these marriages and Shari'a generally?

New report on UK sharia ‘marriages’ exposes “tip of the iceberg”

Aurat: Supporting Women, via the National Secular Society,  Wed, 10 Dec 2014

Based on "Equal and Free? 50 Muslim Women's Experiences of Marriage in Britain Today"

Va. bill bans foreign law in family law cases IF it'd violate fundamental rights.

House Bill 1322 in the Virginia legislature would ban any consideration of foreign law in a family law case, IF the result would violate a person's fundamental rights, except when required by a treaty. It is currently in the House Courts of Justice Committee, and can be tracked here.

The bill would add a new chapter to the Virginia Code, as follows:

§ 20-166. Definitions.

For the purposes of this chapter, unless the context requires a different meaning:

"Domestic relations" means any matter regarding the affirmance or annulment of a marriage, divorce, custody or visitation of a child, spousal or child support, control or disposition of a child, adoption under Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2, or any other domestic relations matter under Title 16.1 or Title 20.

"Foreign law" means any law, legal code, or system established and used or applied in a jurisdiction outside of the states or territories of the United States.

§ 20-167. Application of foreign law by courts, etc.

It shall be considered a violation of the public policy of the Commonwealth for a court, arbitrator, administrative agency, or other adjudicative or enforcement authority in any domestic relations matter to base its ruling or decision in any matter at issue, in whole or in part, on any foreign law, including any ruling or decision to grant comity to any judgment, if the ruling or decision would violate a person's fundamental rights guaranteed by the United States Constitution and the Constitution of Virginia. Any ruling or decision that violates this section shall be void and unenforceable.

§ 20-168. Application of foreign law; exceptions.

The provisions of this chapter shall not be construed to conflict with any federal treaty or other international agreement to which the United States is a signatory to the extent that such treaty or other agreement controls over the law of the Commonwealth.

 

Australia, NZ solve family-law jurisdiction/enforcement problems with new 2-way treaty

Their approach to these issues is instructive for other countries struggling with unilateral, bilateral, continental or worldwide solutions, as David Hodson writes.

DAVID HODSON ON INTERNATIONAL FAMILY LAW: A BRIDGE OVER TASMAN WATERS

 

Philippines: bill to allow annulments for adultery, desertion or violence

The Philippine Star reports that Filipino Rep. Neri Colmenares filed House Bill 3952, titled “An Act Recognizing Spousal Violence, Infidelity and Abandonment as Presumptive Psychological Incapacity Constituting a Ground for the Annulment of Marriage." He said the bill is “intended to make Article 36 of the Family Code, which allows the annulment of marriage on the ground of psychological incapacity, accessible to the poor.”

The bill essentially builds on the Catholic tradition of annulment law to provide the equivalent of fault-based divorce. But by including "abandonment" as a ground, it also essentially allows divorce in cases of mutual consent — if one person chooses to leave, the other has the choice to obtain an annulment.

Does Europe's Brussels II treaty affect divorce cases with the U.S.?

The case of  JKN v JCN [2010] EWHC 843 involves the doctrine of "forum non conveniens", with which an English court, just like state courts in the U.S. in interstate and international cases, can decide not to exercise its jurisdiction in a divorce case if it seems better overall for the case to be in another state, with the overall goal of having the couple divorced in only one state or country, not two. To lawyers in England, the issue in the case is whether Europe's Brussels II treaty requires England to exercise its divorce jurisdiction, or if it can still exercise its historical discretion to decline to exercise its jurisdiction. To me as an American, it seems more notable that the Brussels II treaty could even be discussed in a jurisdiction question between the U.K. and a U.S. state, since the U.S. is not a party to the treaty.

The decision by Deputy High Court Judge Miss Lucy Theis, Queen's Counsel, sensibly points out that the EU does not legislate for nonmember countries, and when dealing with non-member states, discarding "forum non conveniens" doctrine would create ugly jurisdiction conflicts, with conflicting court orders from different countries, and allow no means for resolving them.

Court in India issues injunction against U.S. divorce case

Divorce case: SC issues notice to US-based woman

Times of India 4/10/07

CHANDIGARH:
In a rare reiteration of its authority in a prayer for anti-suit injunction
matter concerning a foreign court, the Supreme Court has issued a notice to the
US-based wife of a Panchkula resident, who has filed a special leave petition
(SLP) against the decision of the Punjab and Haryana High Court in dismissing
his plea for restraining his wife from divorce proceeding initiated in New
Jersey court.

Roundup of current family law jurisdictional issues in the EU

Link: Family Law Week: Divorce & Foreign Affairs.

Foreign divorce recognition cases 1999-2000

    Maberry v. Maberry, Tennessee Court of Appeals No. N1999-01322-COA-R3-CB,     11/30/99.

    FOREIGN DIVORCE DECREE — COMITY — PROOF OF FOREIGN ORDER AND OF     DUE PROCESS IN FOREIGN COUNTRY — RES JUDICATA.

Neither party had adequately proven a Japanese divorce decree in a Tennessee post-divorce proceeding, and so comity could not be granted to the decree, it was not res judicata, and neither party should rely on it in the Tennessee case.

A Japanese court granted a divorce but refused to make any disposition of husband’s U.S. military pension.  The Japanese decree also did not deal with child support.  The wife petitioned a Tennessee court for a pension division and the husband cross-petitioned for child support. The trial court dismissed the parties' petitions based on res judicata, but the appeals court reverses.

The appeals court also pointed out that either party in the future could seek to have the decree recognized or enforced if they could properly submit it and prove what it said. The court noted that there is a split of authority in other states on whether the Uniform Enforcement of Foreign Judgments Act applies to a foreign-country decree. Without saying one way or another whether the Act applied, it pointed out that registration of the decree under that Act would have let the trial judge determine what exactly the decree had covered, and whether the principles of due process had been observed sufficiently. 

    In Re Goode, Oregon Ct. App. No. A102769, 2/9/00, http://pub.bna.com/fl/102769.htm

    DOMINICAN DIVORCES — EFFECT ON LATER MARRIAGE — PUBLIC POLICY —     PARTIES DOMICILED IN FOREIGN COUNTRY — ESTOPPEL. 

In this case, the wife had obtained a Dominican divorce from her first husband while both resided in their native Colombia.  Later the same year she married her present husband.  Six years later she got an Oregon divorce from the first husband and then married her current husband for a second time.  Before the second marriage ceremony, they executed a pre-marital agreement.  When they divorced six years after that, the husband attempted to enforce the pre-marital agreement.  Under Oregon law, however, a pre-marital agreement must be before the marriage; it cannot be a mid-marital agreement.  The wife argued that the parties were already married, husband argued that they were not because the Dominican divorce was invalid.

The Court of Appeals held that the Dominican divorce should be granted comity.  There is a public policy in Oregon in favor of discouraging forum shopping by recognizing divorces only if at least one party was domiciled in the forum.  However, this divorce did not violate public policy because neither party lived in the U.S. at the time.  Husband also argued for judicial estoppel, since the Oregon courts, and the wife in asking for a second divorce from the first husband, both had relied on the fact that she was still married to the first husband in order to have the second divorce granted.  However, the Court of Appeals said that the purpose of judicial estoppel would not be furthered by applying it in this way, because the wife was not seeking to defraud a court or "pervert justice," but only to avoid being a bigamist.  Besides, since estoppel is an equitable doctrine, it would be inequitable to let the current husband denigrate the Dominican divorce when he had in fact "promoted and encouraged" it at the time. (Even though the main thing that was going on here was that the wife was trying to disavow a premarital agreement that she had signed on to and which the husband had relied on.)

As to the Dominican judgment's validity under Dominican law, the court noted that under that law one party at least has to be at the divorce hearing.  The wife, who had been the plaintiff in that divorce, said that she had never been to the Dominican Republic, and that she did not believe that her then husband had been there on the date of the divorce or at any other time. However, the court noted that the divorce judgment said the husband "was temporarily in this city" and so decided that it could be inferred that he had been present at the hearing.  It also noted that the judgment says, "all the formalities prescribed by law have been fulfilled."  Without any testimony proving that the first husband had not been at the hearing and in spite of the proponent's own testimony to that effect, the court decided that the divorce was valid in the country where it was granted and thus eligible for comity.

Adoteye  v. Adoteye, 527 SE2d 453, 32 Va. App. 221, 14 VLW 1350 (4/18/00)

    DIVORCE — RESIDENCE AND DOMICILE — INTERNATIONAL-ORGANIZATION EMPLOYEES. 

A foreign employee of an international organization who lives in Virginia on a G-4 non-immigration visa, a special kind of visa only for international organization employees, is not a bona fide resident of Virginia and thus cannot seek a divorce there, the Virginia Court of Appeals says. With the G-4 visa, her right to remain in the U.S. is completely conditional upon her employment by the organization. (There are many such employees in Northern Virginia, Maryland and D.C.)

The complainant said she kept her G-4 visa because it was tied to certain financial benefits her employer provided. She also was allowed to claim a total exemption from paying any state or federal taxes, and did so. In both cases, the court commented, “we respect her right to make this election.” But it “is inconsistent with intent to become a permanent, bona fide resident and domiciliary.”

The Complainant pointed out that  “she has resided in Virginia since 1983, that she owns a home in Fairfax County, that her children were born in and live in Virginia and speak only English, that she has never returned to Ghana for longer than six weeks at a time, referring to these trips as ‘vacations,’ that she holds a Virginia driver's license, has bank accounts in Virginia, has registered automobiles in Virginia, submitted to the jurisdiction of the Fairfax County Juvenile and Domestic Relations District Court, owns no real property in Ghana, has never paid taxes in Ghana, and has stated her intention to remain indefinitely in Virginia.” But the court held that “these circumstances … are also consistent with a transitory sojourn in Virginia.”

Phillips v. Saratoga Harness Racing, Inc., No. 96-LV-1587, 26 FLR 1277 (NDNY 3/31/00)

HEALTH INSURANCE -- INVALID DOMINICAN DIVORCE -- COBRA --LIABILITY FOR GAP IN HEALTH INSURANCE COVERAGE THAT WAS NOT DISCLOSED TO INSURED SPOUSE OF EMPLOYEE. 

A wife has no cause of action under COBRA or any other federal law against her husband's employer, which dropped her from his health insurance after he got a Dominican divorce, which a state court later declared void.  The federal court agreed with the employer's argument that an invalid divorce decree is not a "qualifying event" under COBRA which obliged the company to give the wife notice of COBRA eligibility.  She was still married to him, after all.  The federal court commented that without a COBRA-triggering event, it did not even have subject matter jurisdiction to do anything. 

The employer was not exactly a mere bystander in this case.  The husband got a Dominican divorce and married his secretary, and told his employer about both of these things.  The employer then gave him forms to give his first wife so that she could get a COBRA extension of her coverage.  But wife never got those forms via her husband, and she incurred substantial medical bills, which she had assumed the insurance would cover.  The court noted that there was a state court order for the husband to maintain the wife's health insurance, and so her remedy was against him, in state court.