International Family Law News & Analysis

Abu Dhabi creates family laws and bilingual family courts for non-Muslims

The new laws allow joint custody, equitable financial orders in divorces, civil marriage, and Western-style wills. They only affect Abu Dhabi, not the rest of the United Arab Emirates.

Abu Dhabi emitió una ley de divorcio para los no musulmanes

State Dept. Reports on Child Abduction in Hague and Non-Hague Countries

The worst "countries demonstrating a pattern of noncompliance" in 2017:

• Argentina
• Bahamas
• Brazil
• China
• Dominican Republic
• Ecuador
• India
• Japan
• Jordan
• Morocco
• Peru
• United Arab Emirates 

-- Department of State, Annual Report on International Child Abduction, 2018

"The 2018 report said Japan has made “measurable progress” on international parental child abduction, noting that the average number of children reported abducted to the country each year has decreased by 44 percent since 2014.

While noting that “a strong and productive relationship” between the Japanese and U.S. governments has facilitated the resolution of abduction cases, the report said that “there were no effective means” to enforce court return orders.

As a result, 22 percent of requests for the return of abducted children under the treaty remained unresolved for more than one year, the report said, adding the enforcement process is “extremely long.”

A total of 12 countries, also including China, India, Brazil and Argentina, were on the 2018 list of countries showing a pattern of noncompliance.

.. Paul Toland, who hopes to reunite with his daughter in Japan, said, “Japan will need a complete reform of their family law system and will have to change the way they view the rights of a child to know and love both parents after a divorce if they ever want to be compliant with the Hague [treaty].”

"Japan on U.S. list of nations noncompliant with Hague Treaty" -- Japan Times

Saudi mothers' UNCONTESTED custody requests will be processed administratively, not as a a lawsuit; & other more substantive reforms

It's not a "right to custody" -- here's what the Saudi justice minister actually decreed

US courts have always looked at foreign law, even Sharia, in everyday cases

American civil and family courts have dealt with foreign law routinely and undramatically for centuries, including Sharia. People have always had lawsuits about actions and situations that happen in other countries or across several borders, and so the law has long-established rules for taking foreign laws into account. Including laws that are Sharia-based or even Sharia itself, as applied in some countries. There's even a US Supreme Court case about how to apply such principles to an incident in Antarctica.*[see below]

New Jersey lawyer Abed Awad makes this point, and illustrates it with several examples involving Islamic law, in "The True Story of Sharia in American Courts" (The Nation, 6/14/12). 

 "The true story of Sharia in American courts is not one of a plot for imminent takeover but rather another part of the tale of globalization. Marriages, divorces, corporations and commercial transactions are global, meaning that US courts must regularly interpret and apply foreign law. Islamic law has been considered by American courts in everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, and the awarding of damages in commercial disputes and negligence matters."

Abed's article, which came back into circulation this week because of an anti-Sharia protest, also gets into the politics and presumed motives of Americans who are proposing legislation to keep state courts from using foreign law. I don't know enough about them to endorse the ways he characterizes them. I actually sympathize with some of the possible motives for the legislation. In this century the Supreme Court has begun using allegedly widespread foreign views of human rights in order to determine what Americans' constitutional rights are, e.g. on capital punishment and gay rights. Many Americans look at that and have no confidence about where that process will end, or what authority will make the basic rules we're governed by. 

But Abed is absolutely right that these proposals would mostly screw up the ways the courts do justice for international families and international business. Not just when it comes to Islamic law, but all foreign law. 

* My poem about that Antarctica case is at Legal Studies Forum 2008, p 412.

Excerpts: 

REHNQUIST, C. J.:

The Federal Tort Claims Act, which lets one sue
the United States, as an exception to
its otherwise total sovereign immunity,
says “Use the local law of the community.”
‘Tis right we’re bound by Rome’s law when in Rome:
conditions differ from those we knew at home.

. . . 

STEVENS, J., DISSENTING: . . .

Anyhow, if Antarctica has no law,
we apply the laws of California.
For the Act says on the high seas, or in space,
the law to be applied is from the place
the plaintiff lives. . . .

To lawful men, there is no lawless place.
Migrants bear the laws of their own race.
Indeed, Americans in Antarctica
are under U.S. tax and criminal law.
So even where there is no sovereignty,
you wouldn’t have the right to murder me.
The international community embraces
all creation, even sovereignless places,
and even in unseen chasms that never thaw,
its spirit says there abides a rule of law.

Saudi Arabia's Five Silliest Divorces

Five top strange reasons for divorce in Saudi

Height, camel, WhatsApp messages… and more

 

Emirates 24/7 News

Saudi judge, wife's uncles force couple to divorce

"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.

 

Pregnant woman forced to divorce

Wife appeals Saudi King for help

Emirates 24/7 News, Thursday, April 07, 2016

Norway ratifies Hague Child Protection/Jurisdiction/Enforcement treaty, Turkey seeks to join

Norway has ratified the 1996 Hague Child Protection Convention as of March 1, 2016, and the Turkish government has asked its legislature to ratify it. (Not the Child Abduction Convention, which both nations already belong to.) The U.S. has not yet ratified the 1996 treaty, although it has begun the process.

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.

Text of treaty

Status table of all countries' ratifications and other actions

Expats' marriages more stressed, divorces harder

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.

Divorce, Global Style: For Expat Marriages, Breaking Up is Harder to Do

By DEBRA BRUNO in Wall Street Journal — World, Mar 18, 2015

India: Muslim women fight instant "triple talaq" -- 1 word thrice spoken, texted, skyped, etc.

After the article below came out, India's  All India Muslim Personal Law Board upheld triple talaqs, calling them part of the "Islamic ethos" according to the Sept. 3, 2015 Times of India. 

India's Muslim women fight to end triple talaq law that yields instant divorce

In India, Muslim women’s lives are being ruined because men can end marriages simply by saying ‘talaq’ three times – even on social media

By Amrit Dhillon in The Guardian, 8-10-15

via The Association of Family and Conciliation Courts

Related articles

Indian Muslim Law Board Upholds Triple Talaq

Triple Talaq System a Crime, But No Scope of Change: Muslim Law Board

MUSLIM WOMEN AGAINST "ORAL DIVORCE" AND POLYGAMY - Misna - Missionary International Service News Agency

Nearly all India's Muslim women reject 'triple talaq', polygamy, survey finds | Reuters

Virginia State Bar isn’t criticizing or boycotting Israel by canceling convention there

I spent Holy Week litigating instead of pontificating or politicking. So this weekend, when we commemorate the sectarian/religious killing of a pilgrim to Jerusalem, was my first chance to do the heavy blogging about the Virginia State Bar’s cancellation of its convention there, in response to protests that Israel makes it difficult to travel there for American citizens born in Muslim countries, and especially Palestinian-Americans. That would include dozens, at least, of the State Bar’s members. The Bar's decision was primarily based on information from a U.S. State Department web site. 

Usually, if an American says that someone or something else in America, is “discriminatory”, that connotes a violation of the Constitution or at least of American values. But when the State Bar used the word “discriminatory”, (1) it was briefly describing the assertions of those who protested the trip, not making its own assertions, and (2) even if Israel “discriminates” or “profiles”, that doesn’t mean there’s anything wrong with Israel doing what it thinks necessary to protect the people in the country and those traveling to and from it. It just means that the Virginia State Bar doesn’t want to subject its own members to that treatment unnecessarily, by having a convention in Israel. A follow-up message from State Bar President Kevin Martingayle and President-Elect Ed Weiner made that abundantly clear.

 The Bar is also especially concerned about security measures that give certain travelers no privacy in their electronic devices and their e-mail and social media accounts, because we’ve just recently debated and enacted changes to the ethics rules emphasizing the duty to protect attorney-client communications from hacking.

Some bar members in my district were disturbed that the Virginia State Bar was spending their mandatory dues to criticize Israel. But now that I’ve had time to look at all the statements from the State Bar officers on the subject, I honestly don’t see anything that does so, as I’ve explained above. If the bar officers’ letters are spreading information about Israel that is not entirely true, well, the jury is still out on that and it’s hard to blame the state bar for referring to information from a U.S. government web site, or for summing up in one sentence what the protestors were claiming, so as to give some context to their decision for those who had not already heard about the protest.

 As a member of the State Bar’s governing council, I had to learn a lot about this topic fast, although I still don’t know the whole picture. Arlington’s council members discussed the protests and I tried to verify and gather more information, but then the State Bar moved ahead of our small efforts by canceling the meeting quickly.

 Colleagues around the U.S. and the world, and news articles they sent me, confirmed that there are indeed restrictions on people who are originally from certain countries traveling to Israel, even if they are now citizens of the U.S. or other countries, or British subjects. Likewise, many Muslim countries don’t allow travel by Israelis, Israeli-Americans, or anyone whose passport shows that they have traveled to Israel. " At least 17 Muslim countries forbid travel to Israeli passport-holders altogether, with 8 of those countries not allowing travel to those whose passports reflect any prior travel to Israel (but lately Israel no longer stamps passports, but rather stores the data electronically, so this may be irrelevant if the Israel travel is more recent.)" Among others, "Algeria, Iran, Iraq, Lebanon, Libya, Pakistan, Saudi Arabia, Sudan, Syria and Yemen all either deny or delay entry to any traveler whose passport has an Israeli entry or exit stamp or any other indication that they've visited Israel." But apparently no countries bar Jews, as such.

 So my initial reaction was that in the future we should generally have a policy of not having our regular meetings in any countries that would make it hard for any of our members to visit, or which would keep them from protecting their clients’ confidential communications.  But I thought that whether to cancel this already-planned meeting was up to the bar leaders who knew and could consider all the variables.

 I must admit that there is a lot of information out there that calls the conclusions of the State Department, the State Bar, and the protestors into question:

• Some members in my district knew of Palestinian-Americans who travel to Israel frequently for youth-peacemaking programs, and of conferences there attended by people from Arab countries.
• Some commenters on news stories and blogs on the subject questioned the State Department’s spin and selectivity, on the grounds that the current State Department is relatively pro-Palestinian and anti-Israel.
• Several said that the Israeli government and private services will work with international event organizers to shepherd groups through security and avoid the worst of it. But others say that that is not a sure thing, and the bar officers said that “An embassy official expressed a desire to facilitate the trip but acknowledged that security protocols are strict and could lead to exclusion or restriction of some VSB members.”
• Many colleagues who had traveled to Israel said that their security procedures are incredibly harsh on everyone – “That’s why they’re so safe”, said one. But it’s certainly possible that Americans who go through that seemingly harsh process may not realize that for Arab-Americans,  the process is considerably worse, or practically prohibitive.

Other choice comments I received:

"I am Palestinian-American. I practice in the NJ/NY area. I still have family in Palestine. Every time I travel it takes me between 3 to 6 hours before I am allowed to leave the airport. The interrogation is ridiculous. They make you wait for hours. Then you get interrogated and told to wait. Then a new interrogator. Then they tell you to wait and so on. This applies to anyone Palestinian or Arab. It is demeaning and stressful. If you are Jewish, this does not happen. It would be worthwhile for the Bar Association to take the initiative to stop such discrimination and targeting of Americans of Arab background."

———

"Having traveled to Israel a number of times (one of my children lives there), there is no question that Israeli security differs from that in this country.  While we do not permit racial profiling, we live in a geographic area protected by two oceans and we do not have, larger, richer and well-armed neighbors who pledge to destroy us.   As a result of being a tiny nation with Hamas on one side, Hezbollah on another and ISIS quite nearby - not to mention Iran - Israel takes security quite seriously.   As a result, yes, a person traveling to Israel with Arab ethnicity may be treated differently by Israel security than I am as a dumb American tourist. Is this profiling?  Yes, of course it is.  And undoubtedly, there are times Israel goes too far.  But its history of suicide bombs, terrorist attacks and missiles lead it to err on the side of security. That being said, Israel is still - amazingly - a free democratic country with far more freedoms for its Arab citizens than enjoyed by Arab citizens anywhere else in the Mideast.  To single out Israel - while ignoring the substantially higher degree of repression in Arab countries (and elsewhere in the world) - is anti-semitism. That being said, should the meeting still occur there?  That is up to the organizers.  To me, an additional level of security to ensure safety would be well worth it.  But, if they choose to live in a perceived Utopia as opposed to the real world, they should probably just stay home."

———

"I believe it is unfortunately true that perfectly law-abiding Arab-American travelers may have a hard time entering Israel because of her very real existential security issues."

———

"In 2012, Israel denied entry to 0.023% of US Citizens who sought to enter Israel (the raw numbers were 142 denied out of about 626,000 total). For some perspective on those numbers, The United States refused Class "B" visas [entry for up to 120 days for tourism or business] to 5.4% of Israeli citizens who applied to enter the United States during the same period of time."

———

"Amazing how sometimes diplomacy (or the lack of it) hits our daily routines, isn't it? All I can say is that Swiss citizens who travel to Israel and Arab countries need two different Swiss passports (one of them to be deposited at the respective public office) because you are not able to enter countries like Lebanon, Egypt, Dubai or similar (or at least enter without hours of useless interrogation) if you have an Israeli stamp in your passport, and vice versa. Your State Bar didn't apply the pragmatic part of daily diplomacy used by the Israelis themselves. When they want to avoid all the hassle or meet their Arab friends the fly over to Cyprus (and vice versa). I'm sure the persons organizing the event didn't act in bad faith, but perhaps underlined their lack of international savoir faire. I understand the persons protesting very much, and it all calls for a compromise: Hold your meeting in Switzerland!"

———

"Sadly, racial  profiling at Ben Gurion Airport is a well chronicled and very embarrassing fact. I have sent you several articles attesting to this practice and more importantly, two articles referring to a very long winded recently adjudicated Israeli Supreme Court Case on the subject.   Sadly, the highest Court in Israel, copped out as you will see, offering little more than sympathy but nevertheless sending a signal of mild disgust to the security authorities.   It seems that some of the really abhorrent behaviour by airport security has been "tamed" but the general policy remains in place."

———

 "My advice to the State Bar Association would be to advise their counterparts/organizers in Israel of the sensibilities.   Forewarned is forearmed in this case. There are several VIP and Protocol Services available at a cost, at Ben Gurion serving both in and out bound passengers.   They operate very smoothly and conduct passengers through the security maze.  This would assist.   Remember, Security Profiling operates both ways.   I once sat on a Business Class seat next to a blond Danish Businessman out of Tel Aviv.    He had been through the mill and they had even scanned his computer files."

———

"I would suggest waiting and listening to more of the arguments before reaching that conclusion.  If Israel had a policy that individuals with American passports would be searched less vigorously, what do you think would be the result?  What would a terrorist do?  Boycotting Israel because it is allergic to its citizens being blown up is itself discrimination.  Serious discrimination."