International matrimonial law
Encyclopedia
International matrimonial law is an area of private international law (or conflict of laws
in the United States). The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the States Members of the Hague Conference on Private International Law
have attempted to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas.
which has been defined in the United States as the “recognition that one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.”
. One of the current Contracting States, the Netherlands, recognizes same-sex marriage while none of the other Contracting States or signatories do. A simple fix to this solution would seem to be the Convention’s Article 14. This article states, “A Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy.” Nevertheless, there are those who feel that the Convention requires Contracting States to recognize same-sex marriages entered into in jurisdictions where such unions are valid. They argue that because the writers of the convention rejected limiting marriage to heterosexual marriage and because the writers called for recognition of marriage in its “broadest, international sense,” same-sex marriage is clearly included in the marriages that the Convention compels Contracting States to recognize. Those who argue that states need not recognize same-sex marriages invoke Article 14 and maintain that because only a small number of states and jurisdictions perform and recognize same-sex marriages, then these unions cannot be considered to conform to any “broad” or “international” view of marriage.
In 2004, the Australian Parliament passed the Marriage Amendment Act 2004. The effect of this legislation was to amend Australia’s Marriage Act 1961 and to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” In doing so, the references to marriage in the part of the Marriage Act which enshrined the Marriage Convention into Australian law were also defined, thus enabling Australia to refuse to recognize same-sex marriages performed legally abroad.
In France Senator Masson (question number 20257 page 2829 of the official journal) asked the French minister of justice a parliamentary queston on whether France would recognise a same sex marriage from Holland. The minister invoked the Hague convention 14 March 1978 stating that if the marriage was legal in the country of those nationals then it would produce effects in France. French nationals who performed a same sex marriage abroad would not have their marriage recgonised since their national law did not allow it.
There are 17 states that have ratified the Convention. Many states, including the United States, which is not a Contracting State to the Convention, recognize divorces obtained abroad through the above-mentioned legal principle of comity.
” at the time of selection, or the law of the first state in which one of the spouses establishes a new habitual residence after the marriage. If no such selection is made, the laws of the first state in which the couple had their habitual residence after marriage govern the property.
The convention has only been ratified by three states (France, Luxembourg, and the Netherlands) and signed by another two (Austria and Portugal). As such, international divorce cases that take place outside of the authority of the convention are not clear-cut. For instance, questions arise when assets are held in trust in a country that neither spouse has an actual connection to through residence or nationality and neither the state in which the trust is located nor the state in which suit is brought (the state of nationality or residence) is a member of the Convention. Some courts have found ways around the jurisdictional issue at hand (i.e. that they have no jurisdiction in another country) especially if the assets are marital and under the control of only one spouse. Such was the case in the New York
case of Riechers v. Riechers. In this case the husband had used marital assets to fund a Cook Islands trust; even though the New York court had no jurisdiction over the trust money, they ordered the wife’s share of that money paid from other assets.
has been moving towards a common divorce law. The European Commission
promulgated the so-called Brussels II regulation in March 2001 in an effort to settle the conflict of laws relating to divorce between the members of the European Union. The regulation, amended in 2005, determines which courts will have jurisdiction over what matters. But even with this regulation, which binds all member states save Denmark, the EU is a hodgepodge of divorce laws. As one legal scholar has noted: “The substantive law pertaining to legal separation continues to differ widely between the Member States: from Maltese law where there is a prohibition of divorce to Finnish of Swedish law where no actual grounds of divorce are required.” In addition, legal culture in these countries is different on issues of divorce and marital property. Observers note that the generosity of settlements and alimony differ from state to state. With Brussels II holding that the first valid court to process a filing for divorce is the court that will have jurisdiction, it can matter a great deal where in the EU a ruling is made. This is true even in divorces that take place between a European national and a citizen of another country. High-profile divorce cases such as the one between American pop-star Madonna
and her British husband Guy Ritchie
, must deal with such issues, especially if one party stands to gain by filing in a certain jurisdiction. (In this case, Ritchie, who is comparatively less well off, would benefit from filing in Britain where settlements tend to be larger and alimony more generous).
was concluded on 25 October 1980 and entered into force on 1 December 1983. Its goal is to provide that if a child is removed from his habitual residence and custodial status to another country, the child can be returned to the country of his habitual residence thus maintaining the custodial status quo prior to the removal.
One of the primary issues with this convention is the vagueness of the term “habitually resident.” Because the term is open to interpretation by national courts, the Convention is not necessarily applied uniformly amongst the Contracting States. For example, although a plain-text reading of the convention seems to support the notion that a child is habitually resident in the state he or she lived in prior to abduction, some courts have disagreed. For example, in the 2001 case of Mozes v. Mozes where the wife and children had travelled to the United States from Israel for a period of fifteen months with the consent of the father, during which time the wife obtained a divorce and temporary custody of the children in Los Angeles, the Ninth Circuit Court of Appeals ruled that habitual residence can change. It found that the United States had supplanted Israel as the children’s habitual residence, rejecting the father’s petition for return of the children under the convention.
concluded on 23 November 2007. It has yet to enter into force. This Convention would complement the United Nations Convention on the Recovery Abroad of Maintenance of 1956. Child support was an area where comity was not always observed, even after the entry into force of the UN convention. There were few signatories of the convention and many people were able to avoid child support payments by moving overseas. The Hague Convention would attempt to solve this problem at least among the Contracting States. It would compel individuals who moved from one Contracting State to another to continue to remit payment by forcing the second Contracting State to enforce the child support agreement from the first. Currently the Convention has only one signatory, the United States. In the message he sent to the United States Senate
asking them to ratify the treaty, United States President George W. Bush
called on the body to act quickly citing the increasing number of 15 million US child support cases that involved “parties who live in different nations.”
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
in the United States). The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the States Members of the Hague Conference on Private International Law
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
have attempted to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas.
Hague Marriage Convention
The Hague Convention that harmonizes different marriage laws, the Convention on the Celebration and Recognition of the Validity of Marriages, was concluded at The Hague on 14 March 1978 and entered into force on 1 May 1991. Article 9 of the Convention holds that, “A marriage validly entered into under the law of the State of celebration or which subsequently becomes valid under that law shall be considered as such in all Contracting States, subject to the provisions of this Chapter.” In short, one Contracting State must recognize a marriage legally performed in another contracting state. Currently only three states (Australia, Luxembourg, and the Netherlands) have ratified the Convention. Another three (Egypt, Finland, and Portugal) have signed it. One of the reasons that the Convention may have so few Contracting States is that states have long observed the principle of comityComity
In law, comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations , particularly by recognizing the validity and effect of their executive, legislative, and judicial acts...
which has been defined in the United States as the “recognition that one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws.”
Implications for Same-Sex Marriage
The principle of comity and the Hague Marriage Convention itself may be put to the test on the issue of same-sex marriageSame-sex marriage
Same-sex marriage is marriage between two persons of the same biological sex or social gender. Supporters of legal recognition for same-sex marriage typically refer to such recognition as marriage equality....
. One of the current Contracting States, the Netherlands, recognizes same-sex marriage while none of the other Contracting States or signatories do. A simple fix to this solution would seem to be the Convention’s Article 14. This article states, “A Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy.” Nevertheless, there are those who feel that the Convention requires Contracting States to recognize same-sex marriages entered into in jurisdictions where such unions are valid. They argue that because the writers of the convention rejected limiting marriage to heterosexual marriage and because the writers called for recognition of marriage in its “broadest, international sense,” same-sex marriage is clearly included in the marriages that the Convention compels Contracting States to recognize. Those who argue that states need not recognize same-sex marriages invoke Article 14 and maintain that because only a small number of states and jurisdictions perform and recognize same-sex marriages, then these unions cannot be considered to conform to any “broad” or “international” view of marriage.
In 2004, the Australian Parliament passed the Marriage Amendment Act 2004. The effect of this legislation was to amend Australia’s Marriage Act 1961 and to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” In doing so, the references to marriage in the part of the Marriage Act which enshrined the Marriage Convention into Australian law were also defined, thus enabling Australia to refuse to recognize same-sex marriages performed legally abroad.
In France Senator Masson (question number 20257 page 2829 of the official journal) asked the French minister of justice a parliamentary queston on whether France would recognise a same sex marriage from Holland. The minister invoked the Hague convention 14 March 1978 stating that if the marriage was legal in the country of those nationals then it would produce effects in France. French nationals who performed a same sex marriage abroad would not have their marriage recgonised since their national law did not allow it.
Hague Convention of 1970
The Hague Convention that compels Contracting States to recognize divorces and legal separations obtained legally in another contracting state is the Hague Convention on the Recognition of Divorces and Legal Separations concluded on 1 June 1970 and entered into force 24 August 1975. Article 1 of the Convention states, “ The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognized in that State and which are legally effective there.” The Convention makes clear that it does not apply to any determinations about property or child custody that may accompany a divorce. Only the state of being divorced or legally separated must be recognized. There are certain exceptions. According to the Convention a divorce need not be recognized if both parties were nationals of a state which did not provide for divorce at the time of the divorce (Article 7), if the respondent in a divorce proceeding was not given an adequate chance to present his or her case (Article 8), if to do so would be “incompatible” with a previous determination as to the status of the spouses in the State where they are seeking recognition (Article 9), or if to recognize such a divorce would be manifestly incompatible with the state’s public policy (Article 10). In addition, Article 20 of the Constitution allows a Contracting State to file a reservation stating that that state will not recognize a divorce if at the date of the divorce, “one of the spouses was a national of a state whose laws did not provide for divorce.”There are 17 states that have ratified the Convention. Many states, including the United States, which is not a Contracting State to the Convention, recognize divorces obtained abroad through the above-mentioned legal principle of comity.
Property Issues
As the Convention on the Recognition of Divorces and Legal Separations does not deal with matrimonial property in a divorce, the Hague Conference concluded a separate convention on 14 March 1978. The Convention on the Law Applicable to Matrimonial Property Regimes, which entered into force on 1 September 1992, allows spouses in a marriage to decide which jurisdiction’s laws will apply to their property. The Convention provides that they may select the laws of any State of which one of the spouses is a national of at the time of selection, the laws of any state in which one of the spouses has his or her “habitual residenceHabitual residence
In conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
” at the time of selection, or the law of the first state in which one of the spouses establishes a new habitual residence after the marriage. If no such selection is made, the laws of the first state in which the couple had their habitual residence after marriage govern the property.
The convention has only been ratified by three states (France, Luxembourg, and the Netherlands) and signed by another two (Austria and Portugal). As such, international divorce cases that take place outside of the authority of the convention are not clear-cut. For instance, questions arise when assets are held in trust in a country that neither spouse has an actual connection to through residence or nationality and neither the state in which the trust is located nor the state in which suit is brought (the state of nationality or residence) is a member of the Convention. Some courts have found ways around the jurisdictional issue at hand (i.e. that they have no jurisdiction in another country) especially if the assets are marital and under the control of only one spouse. Such was the case in the New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
case of Riechers v. Riechers. In this case the husband had used marital assets to fund a Cook Islands trust; even though the New York court had no jurisdiction over the trust money, they ordered the wife’s share of that money paid from other assets.
The European Union
Not all efforts to deal with and harmonize the matrimonial aspects of private international law take place at the global level or amongst the members of the Hague Conference. The European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
has been moving towards a common divorce law. The European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
promulgated the so-called Brussels II regulation in March 2001 in an effort to settle the conflict of laws relating to divorce between the members of the European Union. The regulation, amended in 2005, determines which courts will have jurisdiction over what matters. But even with this regulation, which binds all member states save Denmark, the EU is a hodgepodge of divorce laws. As one legal scholar has noted: “The substantive law pertaining to legal separation continues to differ widely between the Member States: from Maltese law where there is a prohibition of divorce to Finnish of Swedish law where no actual grounds of divorce are required.” In addition, legal culture in these countries is different on issues of divorce and marital property. Observers note that the generosity of settlements and alimony differ from state to state. With Brussels II holding that the first valid court to process a filing for divorce is the court that will have jurisdiction, it can matter a great deal where in the EU a ruling is made. This is true even in divorces that take place between a European national and a citizen of another country. High-profile divorce cases such as the one between American pop-star Madonna
Madonna (entertainer)
Madonna is an American singer-songwriter, actress and entrepreneur. Born in Bay City, Michigan, she moved to New York City in 1977 to pursue a career in modern dance. After performing in the music groups Breakfast Club and Emmy, she released her debut album in 1983...
and her British husband Guy Ritchie
Guy Ritchie
Guy Stuart Ritchie is an English screenwriter and film maker who directed Lock, Stock and Two Smoking Barrels, Snatch, Revolver, RocknRolla and Sherlock Holmes.-Early life:...
, must deal with such issues, especially if one party stands to gain by filing in a certain jurisdiction. (In this case, Ritchie, who is comparatively less well off, would benefit from filing in Britain where settlements tend to be larger and alimony more generous).
Child Custody
While the Hague conference has not concluded any agreements specifically on the issue of child custody, it has dealt with two incidental issues: parental child abduction and child support (or maintenance) payments.Parental Child Abduction
The Hague Convention on the Civil Aspects of International Child AbductionHague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted from one member nation to...
was concluded on 25 October 1980 and entered into force on 1 December 1983. Its goal is to provide that if a child is removed from his habitual residence and custodial status to another country, the child can be returned to the country of his habitual residence thus maintaining the custodial status quo prior to the removal.
One of the primary issues with this convention is the vagueness of the term “habitually resident.” Because the term is open to interpretation by national courts, the Convention is not necessarily applied uniformly amongst the Contracting States. For example, although a plain-text reading of the convention seems to support the notion that a child is habitually resident in the state he or she lived in prior to abduction, some courts have disagreed. For example, in the 2001 case of Mozes v. Mozes where the wife and children had travelled to the United States from Israel for a period of fifteen months with the consent of the father, during which time the wife obtained a divorce and temporary custody of the children in Los Angeles, the Ninth Circuit Court of Appeals ruled that habitual residence can change. It found that the United States had supplanted Israel as the children’s habitual residence, rejecting the father’s petition for return of the children under the convention.
Child Support
Among the more recent Hague conventions is the Convention on the International Recovery of Child Support and Other Forms of Family MaintenanceHague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is a multilateral treaty governing the enforcement of judicial decisions regarding child support entered by one nation's legal authorities in other states parties...
concluded on 23 November 2007. It has yet to enter into force. This Convention would complement the United Nations Convention on the Recovery Abroad of Maintenance of 1956. Child support was an area where comity was not always observed, even after the entry into force of the UN convention. There were few signatories of the convention and many people were able to avoid child support payments by moving overseas. The Hague Convention would attempt to solve this problem at least among the Contracting States. It would compel individuals who moved from one Contracting State to another to continue to remit payment by forcing the second Contracting State to enforce the child support agreement from the first. Currently the Convention has only one signatory, the United States. In the message he sent to the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
asking them to ratify the treaty, United States President George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
called on the body to act quickly citing the increasing number of 15 million US child support cases that involved “parties who live in different nations.”
See also
- Conflict of lawsConflict of lawsConflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
- International LawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
- Family LawFamily lawFamily law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
- Hague Conference on Private International LawHague Conference on Private International LawThe Hague Conference on Private International Law is the preeminent organisation in the area of private international law....