Clear, fair rules needed for international divorces


February 11, 2014

Source: Asahi.com

Globalization does not always bring about happy endings.

When an internationally married couple is going through a contentious divorce, in which country’s court of law should the dispute be resolved?

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Currently, there is no clear rule on this matter. All the courts can do is to decide the jurisdiction depending on the case. This situation has long caused huge headaches for those involved.

Belatedly, Japan’s Justice Ministry has asked its advisory body, the Legislative Council, to come up with proposals on the issue. We hope the council will swiftly put together a set of easy-to-understand rules.

According to a survey by the Ministry of Health, Labor and Welfare, there were 16,000 divorces in Japan in 2012 involving a non-Japanese spouse. This is twice the figure of 20 years ago, and accounts for 7 percent of all divorces.

In the case of international divorces, the question of which country to seek legal recourse in is an important matter. Going through the legal process in a country with a foreign language and a foreign legal system is grueling work.

Even if the plaintiff is Japanese, there is no guarantee that the arbitration or trial can be held in Japan if the spouse resides in a foreign country. This is because consideration should be given to the spouse who would be the defendant in the case.

In Japan’s current legal system, the tentative basic rule is that court proceedings should be undertaken in the country of the defending spouse’s residence. There have been exceptions, however, when the defending foreign spouse is missing, for example. Japanese courts deal with such cases even if the defendant does not reside in Japan.

In some previous cases when the defendant was not in Japan, Japanese courts went ahead with legal proceedings on the grounds that the divorce approved by a court in the spouse’s country was invalid in Japan.

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The individual situations of each divorce are so varied that setting uniform standards is a difficult process. This has long been considered an international conundrum since countries and cultures have different acceptance levels when it comes to divorce.

Unlike in Japan, where many couples divorce by agreement, divorce by trial is the usual procedure in a number of countries. Some countries basically do not allow divorce.

Given these factors, it would be inappropriate to create a system based only on Japan’s situation. A broad international perspective is necessary.

In recent years, parts of the European Union have attempted to establish common rules about jurisdiction of divorce court proceedings. Under these proposals, initial jurisdiction would be in the hands of the couple’s current country of residence, second jurisdiction would be in the country where the couple most recently lived together, and so on.

We need deeper discourse to decide what rules are appropriate for Japan. We would also have to contemplate sharing those rules with some countries.

The important thing is to establish standards that are as comprehensible and fair as possible to lighten the load of the parties involved and smooth their paths toward restarting their lives after divorce.

This is a cumbersome business, but the number of cross-border marriages and divorces will continue to grow. The endeavors of the legal system must not be left behind by changes in the real world.

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Cabbie Eugene Pothy reunited with son stuck in international custody fight


Source: NY Daily News

Boy, 10, was living in Ivory Coast with relatives since 2003.

WHEN THE SON he had not seen for eight years stepped into the arrivals hall at Kennedy Airport, cabbie Eugene Pothy sobbed and gripped the railing.

He had waited so long for this moment — the end of a wrenching international custody battle — and when he finally hugged the boy, it seemed he might never let go.

As that first embrace ended, 10-year-old Philippe-Emmanuel looked up at a father he knew only from photographs, smiled shyly, and asked in French, “Why are you crying?“

“Just for you,“ Pothy said.

Pothy hadn’t seen Philippe-Emmanuel since the boy’s mother sent him to the Ivory Coast to visit her relatives in 2003. He never returned.

On Tuesday, the cabbie kept shaking his head in disbelief that the ordeal had a happy ending.

“Eight years. Eight years,” he said.

“This is all I have been hoping for for eight years. The day has come.”

Philippe-Emmanuel seemed taken aback by the outpouring.

With his dad translating for him, he said he felt “happy.”

“I recognize my dad from photos. From Facebook, I knew him,” he said.

Pothy, 46, who lives in East Orange, N.J., and works in the city, first told his story of losing his son to the Daily News last November.

After the boy did not return from Africa, Pothy failed for years to convince the child’s mother and her family that he should be raised in America.

Last spring, he contacted the State Department, which opened a case but told him it would be difficult for them to take action, because the Ivory Coast isn’t part of the Hague Convention on International Parental Child Abduction.

The agency also cautioned him against flying there to get the boy himself, if he could get a U.S. judge to sign a order, because foreign courts often do not recognize American custody rules.

The case took a promising turn when Pothy met with self-styled anti-abduction activist Peter Thomas Senese before a December hearing on the case in New Jersey Superior Court.

Pothy said Senese brokered an agreement with the boy’s mother, Judith Any-Grah, that stipulated his return.

Read: I Care Foundation helps create a miracle

The judge approved it and Any-Grah’s family overseas complied.

The boy will now live with Pothy, who already has residential custody of his 6-year-old sister, but his mom will have joint custody.

Any-Grah was also at the airport Tuesday, waiting to see the boy she had not seen in eight years, either.

She told The News that when she sent Philippe-Emmanuel to live with her sister in 2003, she was overwhelmed as a mom and college student.

“I asked her to raise him for me,” she said.

She claimed Pothy agreed it was best at the time. He says he expected his son to be gone only six months.

“Now, I can do my job,” he said. “I can be his dad.”

epearson@nydailynews.com

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