Tag: International Alimony

Divorce Rates in Italy

Posted by Ron Kauffman on

Divorce rates in Italy appear to be skyrocketing, along with the divorce rates in the rest of the world, fueled by the coronavirus, the quarantine, financial stress and many other factors. The news out of Italy is consistent with what is happening in Florida too, as more people begin filing for divorce.

Divorce Rates Italy

Arrivederci

According to Italy’s National Divorce Association (l’Associazione nazionale divorzisti italiani) the divorce rate increased by 60% in 2020. The requests for separation have increased a lot, mainly due to forced coexistence,” the association’s president, family lawyer Matteo Santini, told Sky TG24.

In 40 percent of cases, the divorces were due to the fact that lockdown made it more difficult to hide infidelity and “double lives”.

Another 30 percent of separations were due to domestic violence, and the remaining 30 percent were listed as being down to other causes.

“It’s one thing to share weekends and evenings but another to share the whole day, with all the problems related to the health emergency: health stress due to illness, lack of work, living with children with difficulties related to distance learning. This causes an emotional explosion that leads to the desire for separation and the request for separation.

Florida Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Divorce Law Change

As with many sets of statistics in Italy, there was a marked difference between the north and south of the country. There were more than twice as many separations recorded in the north in 2020, with 450 per thousand couples in the north, and 200 in southern Italy.

Italy, where more than 80 percent of people describe themselves as Catholic, has long had one of Europe’s lowest divorce rates, with only Ireland, Slovenia, and Malta reporting lower figures.

Divorce numbers in the country however surged in 2015 after the enactment of legislation making it easier and quicker to end failed marriages.

The 2015, “fast divorce law”, which the lower house approved with an overwhelming vote of 398 for and 28 against, cuts the time Italians have to wait for a divorce to six months in uncontested cases and a year in contested ones.

Several Italian studies have confirmed that the pandemic and subsequent economic crisis is having a major impact on families, with national statistics agency Istat finding that Italy’s already record-low birth rate was plunging even further due to “the climate of fear and uncertainty and the growing difficulties linked to employment and income generated by recent events.”

The Local Italian article is here.

Is No Fault Divorce Unconstitutional if You’re Religious?

Posted by Ron Kauffman on

An Orthodox Christian Husband, who is a dual citizen of the U.S. and Lebanon, is claiming that Maryland’s no-fault divorce law is unconstitutional. The Husband is deeply religious, and claims his constitutional rights will be violated if the court grants his Wife a civil divorce outside the Church.

Religious Divorce

The Cedars of Maryland

In 2009, Husband and Wife were married in Tripoli, Lebanon, at an Orthodox Christian church. Husband is an Orthodox Christian, and Wife is a Catholic. The couple had met a year earlier in Beirut, where Wife, a citizen of Lebanon, worked as an opera singer.

Husband, a dual citizen of Lebanon and the United States, has resided in the United States for over 30 years, but often travels to Lebanon to vacation and visit family members. Soon after their marriage, the parties moved to Montgomery County, Maryland where Husband operates a medical practice.

On August 4, 2016, Wife moved herself and her children out of the couple’s home in Montgomery County. On that same day, Wife filed for a limited divorce in the Circuit Court for Montgomery County

The Husband did not want a divorce. He regularly demonstrated combative and belligerent behavior, refused to comply with court orders imposing sanctions on him and did not consistently pay the legal fees awarded to Wife.

I will repeat it, I will say it now, and say it until I die: there will not be a divorce, [she] is married to me until I die. So, she has to kill me to get the divorce.

The court found that Husband was “not credible” and that he “used his resources to disrupt and delay the divorce trial, filing multiple appeals on dubious grounds, failing to cooperate with discovery, and hiring and then firing counsel.

The Husband asked for summary judgment, arguing that only Lebanese courts have jurisdiction over the divorce and that the court’s dissolution of the marriage would infringe on his free exercise of religion as an Orthodox Christian.

He also argued that Maryland’s no-fault divorce statute violated his constitutional right to marry; that the divorce would infringe on his children’s fundamental rights; and that the dissolution of his marriage would impair the obligations under his marriage contract, in violation of the Contracts Clause of the United States Constitution.

The trial court denied the Husband’s motion and he appealed.

Florida No Fault Divorce

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or unreasonable behavior.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

In addition, and what the Husband overlooked in the Maryland case, is the big requirement for divorce: to obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.

Believe it or not, the residency requirement can be a major impediment to divorcing for many people. Almost all states require you to be a resident before you can file for divorce. However, the amount of time you have to reside there can vary from state to state.

Divorce and the Constitution

The Husband argued that the family court lacked jurisdiction over the divorce because the parties were married in an Orthodox Christian ceremony in Lebanon and only Lebanese courts have jurisdiction to dissolve the marriage.

He contended that a Maryland court has no power to dissolve a marriage, celebrated in Lebanon, between two persons who are now residents of Maryland. The Maryland appellate court wasted no time in dismiss his argument as without merit, finding that, like Florida:

[A]n essential element of the judicial power to grant a divorce, or jurisdiction,’” is that one spouse be domiciled within the state at the time the complaint was filed.

The big question for the court then, as to jurisdiction, is not whether they were married in Lebanon but whether the Husband or Wife were a Maryland resident.

The Husband also argued granting a “no-fault” divorce was in violation of the United States Constitution. He claimed his marriage contract does not permit no-fault divorces and that the court impermissibly expanded the terms of the parties’ marriage contract by granting the divorce on the grounds of twelve-month separation,

The court found that, although marriage is a civil contract for some purposes “marriage is not a contract within the meaning of the Constitution’s prohibition and courts have regularly held that marriage is not a contract that is constitutionally protected from interference and can be modified by laws divorce laws.

The Husband also argued the divorce infringed on his First Amendment right to free exercise of religion. Because the Orthodox faith does not permit divorces absent fault, a no-fault divorce would unconstitutionally force him to commit a mortal sin according to his religion.

The Supreme Court has long held that legislatures may enact general laws that regulate marriage, even if the application of the law interferes with some religious practices.

Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces.

The opinion is here.

Coffee Grounds for Divorce

Posted by Ron Kauffman on

Coffee used to be grounds for divorce in Turkey after the end of the rule of Sultan Murad IV, who had banned coffee and threw coffee drinkers into the Bosporus. Although Florida is a no-fault state, many people wonder if you still need grounds for divorce.

Coffee Grounds for Divorce

Coffee Talk

Coffee is widely regarded as the second most legally traded commodity after oil in the world today, even though coffee is not technically a commodity since it is fresh produce and its value is directly affected by the length of time it is held.

Coffee, owes its origins as a social beverage to Sufis from Yemen in the 15th century, and then it quickly spread from there throughout the Ottoman Empire. Holding a place of uncertain legality under Islam since its inception, coffee has been alternately banned and blessed depending on the tastes of the ruling government.

During the Ottoman Empire, not even the threat of penalty of death could stop the coffee drinkers of Istanbul. Sultan Murad IV launched his own attack against coffee drinkers as well as tobacco smokers. He brought back the edict about throwing coffee drinkers into the Bosporus and even took it a step further; if he found any soldiers smoking or drinking coffee on the eve of battle, he would execute them or have their limbs.

Coffee was instantly reinstated, along with tobacco use, as soon as this man met his demise. Turkish coffee has been a mainstay of Istanbul ever since to the point where, up until the collapse of the Ottoman Empire, being unable to provide coffee for the household was considered sufficient grounds for a woman to divorce her husband.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s allegedly failure to bring home Starbucks, or preferably, Lavazza. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw hot coffee at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Another Cup of Joe

A cup of coffee can be more than a beverage–it’s a lifeline. Many people claim that they can’t wake up without their morning cup of coffee, others say that they can’t stop drinking it because caffeine is what keeps them creative.

It is not really known where the history of the coffee begins but there is the world-famous legend about Kaldi, a herdsman from Ethiopia who was the first to discover the effects of the coffee beans. According to the legend, around the year 850 AD Kaldi noticed that whenever his sheep ate the red berries that grew on a particular bush, they became excited and more energetic, to the point that they didn’t sleep at night.

Soon word of the energizing berries spread and caught the interest of the Galla tribe in Ethiopia. They invented a kind of a power bar that was prepared with clarified butter and the berry. It was the food of the warriors and it apparently made them invincible. Energizing bars based on coffee berries are still a common snack in Sidamo and Kaffa.

By the late 15th century coffee had become a common beverage in the Near East, but the Ottoman Turks had mastered the art of it. They prepared the coffee with cinnamon, anise, cardamon, and cloves. And this spicy version is still available in some places in Turkey. It is no wonder that they drink coffee after coffee when they prepare each cup with so much love and attention.

Information about coffee in the Ottoman Empire can be found here.

 

International Child Custody and a Washington Woman in Saudi Arabia

Posted by Ron Kauffman on

In an interesting case involving international child custody and a Washington woman in Saudi Arabia, the woman who previously lost custody of her daughter in Saudi Arabia for being “too western”, is back! She traveled home for Christmas and is trying to stay in Washington state with the child.

International Child Custody

Shifting Sands

I’ve written about the case of Bethany Vierra Alhaidari before. Bethany, a 32-year-old student and yoga teacher, moved to Saudi Arabia to teach at a university in 2011. She divorced her Saudi husband, and sought custody of their four-year-old daughter. But the Saudi court concluded that she would not be a good parent.

“The mother is new to Islam, is a foreigner in this country, and continues to definitively embrace the customs and traditions of her upbringing. We must avoid exposing (the child) to these customs and traditions, especially at this early age.”

She started sleeping with her ex-husband, Ghassan al-Haidari, in a bid to get him to allow her and their daughter to spend Christmas with her family, in Washington state. It worked, but she did not return from the Christmas vacation.

Bethany is now asking a family court in Washington to give her custody of her five-year-old daughter Zaina. She said the custody agreement with her Saudi ex-husband was signed under duress and that she was not given a fair hearing by Saudi courts.

In recent years Saudi Arabia has attempted to shake off its image as one of the most repressive countries in the world for women.

In 2018, the government lifted a long-standing ban on women driving and made changes to the male guardianship system last year, allowing women to apply for passports and travel independently without permission from a man.

However, women continue to face numerous restrictions on their lives, and several women’s rights activists who campaigned for the changes have been detained and put on trial. Some of them are alleged to have been tortured in prison.

Florida and the UCCJEA

I’ve spoken about international child custody cases under the Hague Convention and the UCCJEA before. The UCCJEA and the Hague Convention are similar. The Hague Convention seeks to deter abducting parents by depriving the abducting parent’s actions of any practical or juridical consequences.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The removal or the retention of a child is to be considered wrongful where:

it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, many countries, like Saudi Arabia, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when a country is not a signatory country, the UCCJEA may provide relief.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Washington. The ultimate determining factor in a Washington case then, is what is the “home state” of the child.

Alternatively, Washington could possibly hear the case if Washington was the Home State of the child within 6-months before filing or the children are in Washington and the court has emergency jurisdiction. In Bethany’s case, she is using a rarely used section of the UCCJEA.

A Washington Yogi in King Salman’s Court

Bethany appealed the Saudi ruling last August. But she said that it was ignored and that a Saudi judge forced her to reach a custody agreement. She went back to living with her ex-husband and at Christmas he allowed her to take Zaina to see her grandparents in Washington. They did not return.

She next filed a case with a court in Washington in January that cited a rarely-used clause in the Uniform Child Custody Jurisdiction and Enforcement Act.

Even though Saudi Arabia is not a signatory to the Hague Convention, the UCCJEA requires State courts to recognize and enforce custody determinations made by foreign courts as if they were State courts.

However, a court need not enforce a foreign court order or defer to a foreign court’s jurisdiction if the child-custody law of the foreign country violates fundamental principles of human rights.

The UCCJEA language comes from article 20 of the Hague Convention. The “human rights, or fundamental freedoms defense, is invoked on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.

Washington has some experience with this clause. In 2015, a court in Washington ruled that the state should not enforce custody decrees from Egypt because there was “clear and convincing evidence” that Egyptian child custody laws violated fundamental principles of human rights.

Bethany’s husband has asked a Washington family court to enforce the custody agreement registered in Saudi Arabia, saying that his ex-wife was seeking more favorable terms.

Parents don’t get to just move the child to a foreign state and then start a custody case if they don’t like the parenting plan they had in the child’s home state.

The Wall Street Journal article is here.

A Royal International Child Custody Case

Posted by Ron Kauffman on

Child custody cases impact everyone, including world leaders as one recent British case proves. But the stakes in an international child custody matter can change when a parent who holds the power of a state government behind him, gets tough.

Royal Child Custody

A Royal Scam?

When you are concerned in your child custody case about the unlimited resources of the other side, knowing the children’s father is His Highness Sheikh Mohammed bin Rashid Al Maktoum the ruler of the Emirate of Dubai and Vice President and Prime Minister of the United Arab Emirates does not help.

Luckily, the children’s mother is Her Royal Highness Princess Haya bint Al Hussein. She is a daughter of His Majesty the late King Hussein of Jordan and the half-sister of the present ruler of Jordan, King Abdullah II.

The mother is the second official wife of the father, who, in addition, has a number of “unofficial” wives. These two children are the two youngest of the father’s 25 children.

In April 2019 the mother travelled to England with Jalila and Zayed. Although it was normal for the children and the mother to visit England, she made it clear soon after arrival that she and the children would not be returning to Dubai.

The Princess claims she fled the Gulf emirate with her children, saying she had become terrified of her husband’s threats and intimidation. The threats continued after the princess moved to London adding that the Sheikh had used the apparatus of the state “to threaten, intimidate, mistreat and oppress with a total disregard for the rule of law.”

In May 2019 the father commenced proceedings to order the children to be returned to the Emirate of Dubai. The mother initially contested the court’s jurisdiction by asserting that she enjoyed diplomatic immunity, it being the case that shortly after her arrival in England the government of the Hashemite Kingdom of Jordan appointed the mother to the post of First Secretary at the Jordanian Embassy in London

The father, as the ruler of the State of Dubai and as the Head of the Government of the UAE, claims and acknowledges that his position attracts certain immunities, and cannot be required to attend this court to give oral evidence.

In October 2019 the father substantially revised his position by no longer pursuing his application for the children to be returned to Dubai. He agreed that the children would now continue to live with their mother and be based with her in England.

Within the same time period, the father published a poem entitled “Luck strikes once”:

“My spirit is cured of you, girl. When your face appears, no pleasure I feel. Don’t say troublemakers are the ones to blame. It’s your fault, though you’re fairer than the moon…They say luck strikes once in a lifetime and if you lose luck you have no excuse”.

The mother took the poem as a direct reference to herself.

Florida Child Custody

I’ve written about child custody and domestic violence before. Florida does not use the term “custody” anymore, we have the parenting plan concept. For purposes of establishing a parenting plan, the best interest of the child is the primary consideration.

The best interests of the child are determined by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including evidence of domestic violence, child abuse, child abandonment, or child neglect.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

When discussing family or household members, Florida law defines these to mean spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.

In Florida, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further abuse. Protection orders may include the victim’s children, other family members, roommates, or current romantic partner. This means the same no-contact and stay-away rules apply to the other listed individuals, even if the direct harm was to the victim.

This could include a parent leaving a series of anonymous notes in the other parent’s bedroom making threats such as “We will take your son – your daughter is ours – your life is over” or warning her to be careful; and leaving a gun on the bed with the muzzle pointing towards the door and the safety catch off.

Can’t Buy a Thrill

After listening to witnesses and the King’s poetry, a judge at the High Court in London found that the Father “acted in a manner from the end of 2018 which has been aimed at intimidating and frightening” his ex-wife Princess Haya, 45.

Judge Andrew McFarlane also said the Sheikh “ordered and orchestrated” the abductions and forced return to Dubai of two of his adult daughters from another marriage: Sheikha Shamsa in August 2000, and Sheikha Latifa in 2002 and again in 2018.

The judge made rulings after a battle between the estranged spouses over the welfare of their two children, but the Sheikh fought to prevent them from being made public. The U.K Supreme Court quashed that attempt.

The judge found that Haya’s allegations about the threats and abductions met the civil standard of proof on the balance of probabilities. Princess Haya also alleged that Sheikh Mohammed had made arrangements for Jalila — then aged 11 — to be married to the Crown Prince of Saudi Arabia, Mohammed bin Salman.

In 2002 the return was from the border of Dubai with Oman, and in 2018 it was by an armed commando assault at sea near the coast of India.” The judge said Shamsa, now 38, was abducted from the streets of Cambridge and “has been deprived f her liberty for much if not all of the past two decades.”

Sheikh Mohammed is also the founder of the successful Godolphin horse racing stable and last year received a trophy from Queen Elizabeth II after one of his horses won a race at Royal Ascot.

In a statement released after the rulings were published, the Sheikh said that “as a head of government, I was not able to participate in the court’s fact-finding process. This has resulted in the release of a ‘fact-finding’ judgment which inevitably only tells one side of the story.”

“I ask that the media respect the privacy of our children and to not intrude into their lives in the U.K.”

The Time article is here.

 

Home in Milan: International Child Custody and the Hague

Posted by Ron Kauffman on

Last week, the Supreme Court decided a big international child custody case. The decision involved a baby brought here from Milan by her American Mother after her marriage to her Italian husband ended. At issue, where the baby’s ‘habitual residence’ is under the Hague Convention on the Civil Aspects of International Child Abduction – Italy or here.

Hague Milan Child Custody

An Italian Drama

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that requires a child wrongfully removed from his or her country of “habitual residence” be returned to that country.

A removal is “wrongful” if it is done in violation of the custody laws of the country of the child’s habitual residence. The Convention requires that the countries signing the treaty “use the most expeditious proceedings available” to return the child to his or her habitual residence.

The mother, Michelle Monasky, a U.S. citizen, brought her infant daughter to Ohio from Milan, Italy after her Italian husband, Domenico Taglieri, allegedly became physically abusive. Taglieri asked a U.S. court to order the daughter’s returned under the Hague Convention.

The father argued that Italy was the daughter’s “habitual residence.” The district court agreed, finding that the parents had a “shared intention” to raise their daughter in Italy. An appellate panel affirmed, but in a divided opinion.

The Mother asked the Supreme Court to decide the matter, and it did.

International Child Custody and the Hague

I have written and spoken on international custody and child abduction cases under the Hague Convention.

The Convention’s mission is basic: to return children “to the State of their habitual residence” to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting a child.

The key inquiry in many Hague Convention cases, and the dispositive inquiry in the Taglieri case, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.

Many people don’t realize it, but the Hague Convention does not actually define the key term ‘habitual residence.’ There are a couple of ways to determine it. The primary way looks to the place where the child has become “acclimatized.” The back-up inquiry for young children too young to become acclimatized looks to where the parents intend their child to live.

Not abducted children

Under the Tuscan Sun

The Supreme Court affirmed the two lower courts and ordered the child returned to Italy, albeit five years later. The Court rejected the Mother’s argument that you need an “actual agreement” to determine habitual residence, and held that a child’s habitual residence depends on a totality-of-the-circumstances.

The Court noted that the Hague Convention does not define “habitual residence,” but relied on the Convention’s text, its negotiation and drafting history, and decisions from the courts.

The Hague Convention’s text alone does not definitively tell us what makes a child’s residence sufficiently enduring to be deemed “habitual.” It surely does not say that habitual residence depends on an actual agreement between a child’s parents.

No single fact, however, is dispositive across all cases. Common sense suggests that some cases will be straightforward: Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.

Relying on foreign law, the U.S. Supreme Court found that there was a “clear trend” among our treaty partners to treat the determination of habitual residence as a fact-driven inquiry into the particular circumstances of the case.

The U.S. Supreme Court also resolved a circuit split, and held that a trial court’s habitual-residence determination is primarily a question of fact, entitled to clear-error appellate review. The Court declined to remand for further fact finding, noting that the parties had not identified any additional facts that the district court did not already have an opportunity to consider during the four-day bench trial.

The U.S. Supreme Court decision is available here.

International Divorce on the Rise in Turkey

Posted by Ron Kauffman on

Fewer people in Turkey got married in 2019 while more filed for divorce as compared to the previous year, said the Turkish Statistical Institute recently. Because many foreign spouses are involved in Turkish divorces, these statistics raise international divorce issues.

Turkey international divorce

What’s Cooking in Turkey

Turkey is a predominantly Muslim country governed by secular laws. Women have equal rights to property and are eligible for alimony after divorce. But Turkey’s conservative Justice and Development Party has pushed a strong family values agenda.

Turkey provides incentives for married couples such as a tax break, and women who work part-time can get subsidized childcare. Despite such measures — and to the government’s dismay — the rate of marriage has declined by 27 percent.

Divorce — though originally sanctioned more than 1,400 years ago by Islamic law — is still widely viewed in Muslim societies as a subversive act that breaks up the family.

Women who seek divorce can often find themselves ostracized and treated as immoral. Despite such taboos and restrictions, however, divorce rates are rising across Islamic countries, even in ultra-conservative places like Afghanistan.

Turkey, in particular, is seeing a record number of divorces, as both women and men are looking for a way out of unhappy and sometimes abusive marriages. Over the past 15 years, the divorce rate has risen from under 15 percent of marriages to nearly a quarter of them.

Domestic violence is almost always cited as a leading reason by Turkish women seeking a divorce. This is true even outside urban areas, which have also seen a slight growth in divorce cases; increasingly, women are willing to seek divorces in smaller, religious towns such as Konya, in central Anatolia, where Nebiye was raised. More of these girls and women also now have access to education and online information.

Florida International Divorce

International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case? The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Well Done Turkey

According to government statistics, the number of couples who got married was 554,389 in 2018, and 541,424 in 2019, decreasing 2.3 percent. The crude marriage rate – the number of marriages per thousand population – was 0.656 percent in 2019, down from 0.681 percent in 2018.

Age difference at first marriage between male and female was 3 years. The province having the highest mean age difference at first marriage was the northeastern province of Kars with 4.5 years.

TÜİK also gave data on the proportion of marriage with foreign partners of total marriages, saying the proportion of foreign brides rose, while it fell for grooms.

The number of foreign brides was 23,264 in 2019, 4.3 percent of total brides. Syrian women topped the foreign brides with 14.5 percent, followed by Azerbaijani brides with 11.7 percent and German brides with 10.5 percent.

On the other hand, the number of foreign grooms was 4,580 in 2019, 0.8 percent of total grooms,” it noted. When analyzed by citizenship, German grooms took first place, accounting for 34.1 percent of the overall figure. German grooms were followed by Syrian grooms with 13.1 percent and Austrian grooms with 7.8 percent.

The Hurriyet Daily News article is here.

 

A Bitter Yemen: International Child Custody and the UCCJEA

Posted by Ron Kauffman on

A new international child custody case under New York’s UCCJEA law involves a couple from Yemen who lived in New York with the children. They traveled back to Yemen to celebrate Ramadan and Eid. The mom was expecting to return with the children, but the father decided to stay in Yemen, marry another woman, and divorce the mother.

Yemen Child Custody

When Life Gives You Yemen . . .

Upon learning the Father married another woman, the mother traveled back to the United States to be with her parents in New York, but left the Children behind in Yemen. The children have resided in Yemen with the Father since 2016.

This year, the Mother filed a child custody case in New York to order the Father to bring the children to New York; surrender his and the children’s passport and other travel documents, and force the Father to remain in New York.

Why New York? The Mother claimed the Father worked at a deli in New York, frequently travels for business to New York, and has other business ventures in there.

The Mother’s choice to file under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and not the Hague Convention on the Civil Aspects of International Child Abduction is easy to explain: Yemen is not a signatory to the Hague Convention, so the Hague Convention doesn’t apply.

Florida International Child Custody

I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The removal or the retention of a child is to be considered wrongful where:

  1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, many countries, like Yemen, are not signatories or treaty partners with us in the Hague Convention. Fortunately, when the country holding the abducted children is not a signatory country, the UCCJEA may provide relief.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say New York. The ultimate determining factor in a New York case then, is what is the “home state” of the child.

Alternatively, New York could possibly hear the case if New York was the Home State of the child within 6-months before filing or the children are in New York and the court has emergency jurisdiction.

The home state seems to be one of the many obstacles for the Yemeni mother in New York.

. . . you may be stuck with Yemen-ade

The Mother – who appeared in court fully-covered in a burqa – also filed domestic violence petition against the Father seeking an order of protection on behalf of herself and the children, reporting that she had fled Yemen due to domestic violence and repeated acts of sexual and physical abuse committed against her by Father.

The Father moved to dismiss all of the Mother’s petitions on the basis that the New York court lacks subject matter jurisdiction under UCCJEA, because the children have undisputedly resided with him in Yemen for the last three years with the Mother’s consent.

They also were divorced in Yemen before the case was filed in New York. The Yemen divorce specifically refers to a settlement between the parties in which the Father got custody of the two older Children, the Mother got custody of the children.

In opposition to the Father’s Motions, the Mother argued that she and the children only stayed in Yemen out of fear of the Father’s retaliation and political connections with the Houthi government.

She also argued Yemen can’t be considered the children’s home state because Yemen is war-torn country, lawless and because of the human rights abuses in there.

The appellate court had to grant the Father’s motion to dismiss because Yemen is definitely not the children’s home state. It was undisputed that the children had been living in Yemen with Father for several years before she filed her UCCJEA case in New York.

Even if the court conceded that Yemen is in a civil war, and that Yemeni laws regarding domestic violence, child custody, and basic human rights do not conform to American law, home state jurisdiction is paramount under the UCCJEA.

The New York appellate decision is here.

 

International Academy of Family Lawyers

Posted by Ron Kauffman on

I am honored to announce my admission as a Fellow in the International Academy of Family Lawyers. The International Academy of Family Lawyers is a worldwide association of practicing lawyers who are recognized by their peers as the most experienced and expert family law specialists in their respective countries.

IAFL

International family law has become predominant in our work as our firm increasingly focuses on complex divorce and jurisdictional issues, interstate and international family law, child relocation, and Hague international child abduction cases.

The primary objective of the IAFL is to improve international family law practice throughout the world. It pursues that objective in a number of ways: creating a network of expertise in international family law around the world providing its fellows with information about both international and national developments in the law; offering advice and assistance to the wider public; promoting law reform and, where possible, harmonization of law.

Fellowship into the IAFL is by invitation only. The process is a rigorous one, designed to ensure that the high level of expertise within IAFL is maintained. Membership has grown steadily, and the number of countries now represented is 60 and IAFL has over 860 Fellows.

More information about the IAFL is available from their website here.

 

International Divorce and Jurisdiction

Posted by Ron Kauffman on

If Britain has the biggest pay-outs for divorcing spouses, can anyone file for divorce there? The ex-wife of a Russian oligarch, who was denied permission to pursue her international divorce claims against her husband’s $19 billion fortune, just found out about jurisdiction the hard way.

International Divorce and Jurisdiction

To Russia With Love

Natalia Potanina, 58 was attempting to secure an increased pay out through English courts from her former husband, Vladimir Potanin – Russia’s second richest man, claiming that the initial amount she received left her facing ‘hardship’ and did not meet her ‘reasonable needs.’

Ms Potanina claimed that she was only given $41.5 million when the couple divorced in 2014 but deserved considerably more because of the role she played in helping to build her husband’s extensive business empire.

She was attempting to launch a case in the English courts, where divorce pay outs are notoriously high, protesting that when she tried in Russia she got considerably less because of her husband’s ‘wealth, power and influence,’ which denied her a fair settlement.

She also alleged that he had secreted his vast wealth out of her reach in a complex web of offshore companies while pleading to judges in Moscow that he had virtually no assets.

International Divorce Issues

International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case. The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved. The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Back in the USSR

Lawyers acting for her husband took the matter to the High Court in London, asking for her English legal bid to be thrown out during a three-day hearing which took place last month. Delivering his judgment, Mr. Justice Cohen said that the claim that Mrs. Potanina received $41.5 million was ‘untrue and that the real figure was actually over $84 million. In addition to this, she also received $7.3 million in child maintenance. She also purchased a home in Long Island, New York, soon after the divorce, which is worth $6.5 million.

To most people it would seem inconceivable that someone who has received an award of $40-80 million could argue that reasonable needs have not been met, but each case is fact-specific and I accept that the wife could argue that her reasonable needs have not been met. However, the other 16 factors mitigate strongly against her claim proceeding.

If this claim is allowed to proceed then there is effectively no limit to divorce tourism”

Potanina is “very disappointed” and plans to appeal, the judge said. Lawyers for both sides declined to comment. Potanin, Russia’s richest tycoon with $27 billion fortune, is considered to be one of the few “oligarchs,” who became rich under first Russian President Boris Yeltsin. He also plays hockey at the so-called Night Hockey league, sometimes against President Vladimir Putin.

The judge dismissed arguments from Potanina that she couldn’t obtain justice in Russia, saying the local courts properly applied the law. Potanina said that her husband was “too powerful.”

“I do not believe that there is anything more I could have done to obtain justice in Russia. It was an impossible task,” she said in a written submission cited by the judge.

The couple lived in Russia for the length of their marriage, before Potanina moved to England in 2014, the judge said. Her first contact after her arrival appears to have been to obtain advice from London divorce lawyers, the judge said in his ruling.

The Bloomberg article is here.