International Academy of Matrimonial Lawyers Issue 15
April 2008
 

IAML Newsletter April 08
200x200_fitbox-sasser.jpegThe President's Message

While maintaining the quality of our membership, we have expanded to over 500 members worldwide.  We continue to seek qualified members in areas in which we have no representation, and those outside Europe and North America.

I am happy to report that our new website is in its final stages and should be up and running soon.  In the meantime, you can still log onto the current website to obtain the information you need.

I am pleased to report that our new Executive Director, Deborah Beck, is now on board and ready to assist you.  As many of you know, Anne Salter has resigned her position as Executive Director, and we thank her for all of her efforts on behalf of the Academy. 

Debby comes to us from the Florida Bar Association, where she has spent the last eight years managing and coordinating events and conferences for its over 4,500 members, including meals, educational programs, and entertainment.  We are pleased to bring her on board, and are also happy to report that Donna Goddard will continue in her position to assist the Executive Director.  Debby's contact information is:  Deborah Beck, Executive Director, International Academy of Matrimonial Lawyers, P. O. Box 709, Tallahassee, FL 32302   USA, Telephone: +1 850 681 2300, Facsimile: +1 850 681 0700, Email:  dbeck@iaml.org.

Last year's Annual General Meeting in St. Petersburg, Russia was one of the best attended meetings of the Academy, and I believe all who attended had a great time.  The next Annual General Meeting will be in Cape Town, South Africa, at the Mount Nelson Hotel, September 3-7, 2008.  To arrange for individual safaris before or after the meeting, you should contact Grosvenor Tours. Email: gail.theron@grosvenortours.co.za (with a copy to jac.jacobs@grosvenortours.co.za), tel: +27 21 462 2557 or fax: +27 21 461 1399.

If you have not already received a Hotel Reservation Form, you can get one by emailing Debby Beck at dbeck@iaml.org.

I'm happy to report that the educational program for the Annual General Meeting in Cape Town, South Africa, is being put together by a committee chaired by Mark Harper.  Ian Kennedy is on the committee, along with Frances Hughes, and we should have an educational program of tremendous import to all of us, and as soon as it is finalized we will be presenting that information to you.

We are looking forward to the upcoming European Chapter Meeting in Rome, Italy, to take place April 2-6, 2008.  In June, we all look forward to the United States Chapter and Canadian Chapter Meetings to take place in Boston, Massachusetts, June 4-7, 2008.  Thanks to the newsletter committee, we hope to have committee newsletters out on a regular basis, and we may be doing them electronically as soon as our new website is up and running.

The Certified List was finalized at the end of February and you should all have received your copies by now.

Donald J. Sasser, West Palm Beach, Florida, USA

 

An update from the President of the IAML's European Chapter

100x100_fitbox-salter.jpegMany of you will be amongst the 153 people (84 Fellows and 69 guests) who have so far registered for our meeting in Rome which runs from Wednesday 2 April to Sunday 6 April 2008.  Simon Bruce has written elsewhere in this issue about the intellectual stimulation which he has planned for us all. My thanks are due to him for his hard work in creating a new-style programme with three excellent external speakers.  However, it is not going to be all hard grind.  Andrea Russo and Robert Ceschini, our Fellows in Rome, have been wonderfully supportive in assisting me to make the arrangements for the meeting.  In fact, the firms of Roberta and Andrea have very generously sponsored our opening reception on Wednesday 2 April 2008. The social programme has something for everyone in it whether your penchant is for fine art or Roman antiquities on the one hand or the more hedonistic pastimes available on the Via Conditti (thanks to the arrangements made by Andrea's wife, Ilaria).  Andrea has also arranged a reception by the President of the Supreme Court at the end of our tour of Imperial Rome.  As well as an opportunity to visit the Vatican and Sistine Chapel on Thursday 3 April 2008, Saturday 5 April 2008 will offer the opportunity to leave Rome - albeit briefly - for lunch and a wine tasting on the estate of Count Raimondo Moncarda.  Finally, as something of a new departure I believe, Ilaria has arranged golf for those who wish to play on Sunday.  I look forward to welcoming you all to Rome.

The European Expansion Programme has continued apace.  Over the last two years, we have secured new Fellows in the Channel Islands, Finland, Malta, Northern Ireland, Turkey and Wales.  The Expansion Programme is necessarily "work in progress" and is something which I know my successor, Mia Reich-Sjögren, will pursue.

Mia has exciting venues in store for her term of office with her home capital city of Stockholm in May 2009 followed by Munich in May 2010.

David Salter - President, European Chapter

 

An update from the President of the IAML's USA Chapter

100x100_fitbox-thomas.jpegThe USA Chapter has now been in existence for 20 years, and we plan on having a great 20th Birthday Party in Boston between June 4, 2008, and June 7, 2008.  If you have not yet signed up for this extravaganza (i.e., USA Chapter Meeting), please do so immediately.  Because it is Harvard's graduation weekend, hotel space is limited, particularly at our negotiated rate, as are tickets for the world famous Boston Pops.  The hotel at which you need to make your reservations is the Ritz Carlton-Boston Commons (telephone 617/574-7100, fax 617/574-7200).

In Boston, in addition to a wonderful educational program put together by IAML Fellow Suzanne Harris on "Understanding The Muslim Family Law System," you will be able to visit one of the most beautiful, interesting, and historic cities in the United States.  If you have not already received a registration form, you should be able to obtain one from the IAML website.  Of course, you can always get one by e-mailing Judy Neal or me at edthomas@edthomas.com.

Since my last e-mail to everyone on the Boston program, IAML Fellow Anne Berger has pulled off a major coup.  Somehow, she convinced one of the most colorful, interesting, and influential members of the United States House of Representatives, Representative Barney Frank, to come and speak to us.  This will be a "do not miss" event.  If not before, I hope to see you all in Boston!

Edward J. Thomas - President, US Chapter

  
English Case Law UPDATE

[Updates for other jurisdictions to be reported in later editions of the Newsletter]

NA v MA [2006] EWHC 2900 (FAM) - Baron J

The Court held that a Pre-Nuptial Agreement was not binding on a Wife.  The court held that Post-Nuptial Agreements should only be overturned where there was evidence that one party exercised undue influence or pressure over the other.  In this case, that undue influence was adjudged to be present.  The Agreement was not premised on fairness because it represented what the Husband was prepared to offer and not what might be appropriate or needed in the circumstances.

Charman v Charman (No 4) [2007] EWCA Civ 503 - Sir Mark Potter P, Thorpe and Wilson LJJ

The Court of Appeal upheld an earlier award of £48m to the Wife.  In doing so, they gave general guidance regarding the principles of asset division on divorce following the House of Lords decision in Miller:- 

  • The "sharing principle" identified by the House of Lords in Miller means that property should be shared equally unless there is a good reason not to do so.
  • The court's starting point should be the financial position of the parties but the discretionary exercise undertaken by the court has two stages - computation and distribution.
  • The "sharing principle" applies to all types of property but where property is "non matrimonial", there is likely to be better reason for departure from it.
  • Where there is conflict between an outcome determined by reference to needs, compensation or sharing, whichever gives the greater outcome out of needs and sharing will prevail.
  • An outcome by reference to sharing can subsume a party's needs.
  • The doctrine of special contribution (one party or other's special talent or contribution justifying a departure from equality) had survived the decision in Miller.
  • A "special contribution" could be financial or non-financial and sometimes the mere amount of wealth generated could be sufficient to determine a special contribution was present on the facts.
  • The court declined to set a threshold in this regard but said that in a long marriage, the swing in favour of one party was extremely unlikely to extend beyond one third:two thirds.
  • The Trial Judge had rightly rejected the Husband's arguments that the trust of which he and the Wife were both beneficiaries was dynastic in nature and should not be considered a resource based on the evidence before the court.
  • The correct test in this regard was whether if the Husband had asked them to do so, the trustees would have advanced all the capital to the Husband.
  • The Trial Judge had properly considered this test and had rightly aggregated trust and personal assets while arriving at his conclusions.

H v H [2007] EWHC 459 (FAM) - Charles J

The Court held that the House of Lords decision in Miller should not be adhered to as if it were statute. 

The Wife was awarded £13.7m comprising half the assets at separation plus a declining percentage of the Husband's bonus for the three years post separation.  This represented a "run-off" to independent living for the Wife.  Although the Husband had a significant earning capacity, the Wife could not lay claim to it beyond this as a fruit of the marital partnership.  The extent of the parties respective contributions to the welfare of the family could be established by way of a "but for" test i.e. "But for the wife's domestic contribution, would the Husband have earned what he did?" This indicated that the Husband's income was down to his hard work and that the impact of the Wife's domestic contribution to the Husband's income was small in economic terms.

Crossley v Crossley, Times, 3 January 2008

A recent decision of the Court of Appeal which obtained much press coverage in the UK involved a Husband and as he described her, his "career divorcee" Wife.

The parties had entered into a pre-nuptial agreement prior to their marriage which effectively provided that in the event of divorce each walk away from the marriage with whatever they brought in; both parties being independently wealthy in their own right. 

The marriage itself lasted 14 months (plus 3 months pre-marital cohabitation) when the Wife then petitioned for divorce and issued financial proceedings in England.  The Husband then issued a summons that sought an order that rather than following the usual Court procedure, the Wife should instead show why her claim for financial relief should not be dealt with in accordance with the pre-nuptial agreement.

Non English and Welsh practitioners should be aware that pre-nuptial agreements are not binding in the jurisdiction of England and Wales, although they are of persuasive value as a "circumstance" that the Court may take into account.  In this instance, the Court suggested that if ever there was a paradigm case in which a pre-nuptial agreement is seen not simply as one of the peripheral factors but a factor of magnetic importance, this is it and allowed the Husband's claim for a "shortened" procedure accordingly.

Ella v Ella [2007] EWCA Civ 99  

Another case involving a pre-nuptial agreement, this time with an international element.  The Husband and Wife had married in Israel and immediately before their marriage they had entered into a pre-nuptial agreement that the provisions of Israeli law should apply on any question affecting their property.  The Wife subsequently petitioned for dissolution of the marriage in London and the Husband then issued a competing petition in Israel and made a without notice application for a stay of the English proceedings, which was granted.  The Wife's appeal against this stay was rejected as, although it was clear that the family's principal base was in London which meant that at first sight this looked like an English case, it was also equally correct that the family's relationship with Israel was a profound one that extended far beyond just holiday periods, particularly in light of the pre-nuptial agreement, which was treated as a major factor in allowing the Court to find that Israel was the correct forum.

Bentinck v Bentinck [2007] EWCA Civ 175

Whilst on the topic of appropriate forums it is worth mentioning the case of Bentinck which involved a conflict of laws issue between Switzerland and England.  Following the break up of the marriage the Husband in this case had taken up permanent residency in Switzerland and the Wife had remained in the United Kingdom. 

The Husband then initiated conciliation and divorce proceedings in the Swiss court and the Wife subsequently petitioned for divorce in England and contested the jurisdiction of the Swiss court.  By the time the Wife's application got to the hearing stage in London, the Swiss court had already had a hearing to determine which country had jurisdiction, although judgment has not yet been handed down. 

Fellows will already be aware that between all EU member states a first in time procedure applies in respect of where a divorce and financial proceedings are to be heard, pursuant to the Brussels II Convention.  In simple terms, the first member state, excluding Denmark, seised, wins.  Such provision also extends to European Free Trade Association members, such as Switzerland, courtesy of the Lugano Convention on Jurisdiction and Judgments in Civil and Commercial Matters 1988.

At the hearing in England the Husband argued that the English court should stay its proceedings until the Swiss court had made its decision.  The Court of Appeal agreed.  The notion of having conflicting expert evidence from Swiss lawyers upon which a London judge had then to determine seisin according to Swiss law made no sense at all, particularly given the fact that a Swiss judge had already considered the matter and was due to hand down a judgment on the very issue in any event.

Moore v Moore [2007] EWCA Civ 361

Finally, in this round-up is a case involving two Member States, being Spain and England.  In this case, the Appellant Husband was appealing against a decision giving his former Wife leave to apply for orders for financial relief pursuant to the Part III of the Matrimonial and Family Proceedings Act 1984, which enables parties to a foreign divorce to apply to the English Courts for financial relief. The Husband and Wife in this case had separated after being married for the last five years of a relationship lasting over 15 years and had emigrated to Spain for tax reasons.  The Husband had filed for divorce in Spain and the Wife then filed for divorce in England.  The English proceedings were stayed pending determination by Spain as to whether it was first seised and the Husband then applied to the Spanish court to deal with the financial aspects of the divorce, but on the basis that English law applied.

The Spanish court declined to deal with the financial claims and the Husband appealed against that decision.  In the meantime, the Wife applied for financial relief in London, after an overseas divorce in Spain and this was granted on the basis that the Husband's application in Spain was not a claim for maintenance (if it had been Spain would have been first seised for financial matters, as a result of the Brussels II Convention rules governing EU Member States, save Denmark) and that there was a close connection with England, which made England the appropriate venue.

The Husband appealed this decision, but his appeal was dismissed.  The Husband's application was not related to maintenance, but was an application for the division of the wealth or assets to which the couple had a claim.  The Spanish Court had declared that it was without jurisdiction and the English Courts were therefore entitled to hear the matter.

 

Obituary: Claës Renström

Claës Renström was a founding fellow of IAML and previously served on the Board of Governors of the Academy from 1986 to 1992. He was Chair of the International Bar Association, Family Law Division, from 1976 to 1981. He will be greatly missed.

  
A Note from the Newsletter Committee

The Newsletter Committee is very grateful to Cheryl Lynn Hepfer for kindly supplying some of the photos for this edition of the newsletter. Should you wish to contribute an article to the next edition of the IAML newsletter, please contact Marcus Dearle: email to marcus.dearle@withersworldwide.com  or Tel: +44 (0)20 7597 6046

 
The European Chapter meeting in Krakow and the ‘world' meeting in St. Petersburg

The sun shone with great cheer on IAML activities in Europe and Euro-Russia this year.  The European Chapter meeting took place in Krakow, Poland from 25-28 April 2007.  Here we stayed in the modern Sheraton Hotel on the banks of the ancient Vistula river and we enjoyed culture and education in equal measure and excellence.

For many of us the difference between Krakow in 2007 and 20+ years before was both marked and poignant.  In 2007 everything seemed to be colourful, even the weather; and the city was literally abuzz with tables and tourists.  Our stay started with orientation at the Royal Castle ("the Wawel"), with its folkore guardian dragon.  The welcome reception was in the austere but fascinating and ancient Jagiellonian University.  Our Thursday afternoon cultural excursion was to the harrowing site of Auschwitz.  Time, distance and even repetition cannot dull the profound impression.  As our (non-Jewish) Polish guide reminded us: "three million of our people was a high price to pay".  By (great) contrast the Friday afternoon was spent either on the surprisingly interesting (local) Pope John Paul II excursion or - for some at least - in the surprisingly pointless Salt Mines, refurbished to provide a new tourist industry for otherwise redundant people and space!

The cultural programme was complemented by a high quality educational programme guided and chaired by Eleanor Hamilton QC.  This was a tour de force and a particularly brave undertaking for one on her very first IAML conference-outing!  We enjoyed an introduction to post-communist Polish family law from Professor Fryderyck Zoll.  Not to be outdone by our Polish hosts, our English guest Professor Mary Hayes of the University of Sheffield gave a lively paper called  "Leaving the Loved", challenging the wisdom/legal correctness of the line of child relocation cases which stem from the English Court of Appeal's decision in Payne v Payne [2001] 1FLR 1052. This was followed by an excellent comparative trip through six different jurisdictions' approach to the same question: England, Israel, Finland, Netherlands, Sweden, Spain.  But for most however, the pièce de résistance - quite genuinely - was Mark Harper's magisterial and mesmerizing exposition of "Rome III and all that Jazz", turning dry and convoluted Euro-convention-speak into crystal clarity.

Thanks, and admiration, to David and Anne Salter for a very smooth machine, apparently effortlessly oiled and delivering great enjoyment, even including in the President's Dinner a piano recital of works by that most quintessentially Polish of composers, Fryderyk (Franciszek) Szopen, also known as Chopin.

The trip to St. Petersburg (and Moscow), 4-12 September 2007, was both a marvellous continuation and a marvellous contrast from Krakow.

For any who do not already know, St. Petersburg (the pre-revolutionary capital of Russia) is a sumptuous feast of architecture, water, colour in general and gold in particular.  Again we enjoyed beautiful weather (especially in St. Petersburg, with uninterrupted blue skies accounting for one seventh of the total average number of sunny days per year).

The educational programme was well attended but, appropriately, the undoubted highlight was the Third Audrey Ducroux Memorial Lecture delivered on Saturday 8 September by The Rt. Hon Sir Alan Ward, Lord Justice of Appeal in London. 

His subject, "Civil Liberties in the Age of Terror", was as challenging as it was absolutely riveting.  Despite the early start - and for some after very little sleep! -  it was literally standing room only (with many family members present, not just Fellows).  Equally appropriately the lecture closed to an enthusiastic standing ovation.

200x200_fitbox-iaml_photos_195.jpeg

The Rt. Hon Sir Alan Ward pictured with President-Elect, Ian Kennedy, AM and President, Don Sasser

This was a truly memorable meeting for many reasons - including the complimentary season tickets to the Hermitage kindly arranged by Kalman Samuels.  But the finest laurels must go to our President and First Lady, Don and Diane Sasser, for a stunning social programme: city-orientation by boat, followed by private tour of the Hermitage, followed by the tour of the Russian Museum (Art), the tour of the cathedrals (both de-sanctified and now re-sanctified), the sonorous sounds of the St. Petersburg male voice choir, the excursions beyond the City to Peter the Great's summer palace at Peterhof (arriving by hydrofoil), and to Catherine the Great's summer palace at Pushkin; and then, just when you thought it couldn't get any better, the Gala evening and President's Dinner at the Yusupov Palace with musicians and minstrels at every turn and our own private ballet theatre and performance before going into Dinner.  Magical!

200x200_fitbox-iaml_photos_303.jpeg

From left to right: Tom Sasser, Don & Diane Sasser and Jorge Cestero enjoying the party in St. Petersburg 

It is a tribute to the organisers that, for the intrepid few who braved the night-train and the rainy welcome in Russia's modern-day capital, the final two days in Moscow were not an anti-climax.  We marvelled at the metro (Stalin's "Palaces of the People"); and the tours of Red Square and, separately, the Kremlin were truly impressive.  It was therefore a very happy band of gastros who quaffed their last vodkas together in the atmospheric Godunov restaurant just off Red Square and wished each other Dos Vedanya until Rome in April 2008.          

Tim Amos, London, UK

 

Conference on International Child Abduction, Prague, Czech Republic 15-16 October 2007

The Ministry of Justice of the Czech Republic assembled judges and legal personalities for a conference on the subject entitled ‘When a parent abducts his own child - the problem of international child abduction'. The host of the conference was the Czech Minister of Justice, Jiri Pospisil, and the aim was to provide a platform for discussion and international cooperation. By gathering lawyers, judges, scholars, relevant political representatives, Central Authorities and NGOs, the intentions were to contribute to an improvement and present possible solutions to some of these often very complex problems.   

The discussions focused on the interpretational difficulties of the provisions of the Hague Convention and the Brussels II Regulation and how to adjust and change the Czech procedural law in relation to these regulations. Another aim during the conference was to network and to establish working communication channels between judges in various states. These liaison judges can facilitate the progress in a case between two different states and also contribute to better conditions and higher security for the child in question. 

I had the opportunity to attend this conference as a representative of the IAML. With a complete programme over two days, my fellow participants and I attended various interesting speeches and valuable workshops. Meeting and interacting with others handling the various aspects of cases of this nature was very motivating and informative. Particularly during the discussions and workshops, there was an exchange of experiences that for me was the real benefit of the conference. As ever, it was a pleasure to meet the people with whom one normally only has contact as a name on a letter or a decision.

Johan Sarvik, Malmo, Sweden

  
A Snapshot of the Educational Programme of the IAML European Chapter Meeting,  2 - 6 April 2008

The word "kaleidoscope" is defined in the Cambridge dictionary as "a changing and enjoyable mixture of pattern".

That is an apt summary of the Educational Programme taking place at our Rome meeting between 2 and 6 April 2008.

  • Enjoyable - of course.

  • Changing - law moves with society, and family law changes and develops more quickly than most other disciplines. Any self-respecting legal grouping will have its finger on the pulse of those developments.

And, with an eye on how the law makers develop agendas and policy in this area, we have speakers from Parliament and the Council of the European Union to guide/inspire our thinking.

  • Mixture - we deal at our meeting with a spread of family law topics from the financial aspects of cohabitation, marriage and divorce to the lesser known topics of incapacity and surrogacy.

And we have a melting pot of nationalities, ages and perspectives reflected in our speakers -  no "anglo-centric" bias here!  And a variety of presentations too, to include a keenly anticipated debate about the plusses and minuses of a collaborative approach to family law.

  • Pattern - there is of course a coherent whole. We have a keynote speech from one of the brightest and most hard working Judges in England, dealing with autonomy - the ability to be independent and to make your own decisions.

This paper will bring together some of the individual themes highlighted in our Programme. And all our speakers have been given the autonomy to draw in contributions from other colleagues and nationalities.  We fully expect that the Programme will produce seriously worthwhile debate and thoughts, which will be published to generate further debate and discussion.

Simon J Bruce, London, UK

© 2008 International Academy of Matrimonial Lawyers