UK: Family Law


1.1 A divorce obtained in a court of civil jurisdiction in any part of the United Kingdom, the Channel Islands or the Isle of Man may be accepted, provided that the final certificate (decree absolute) is seen. If the document has been lost the person concerned should be asked to apply for a copy to the local issuing court or the Divorce Registry, First Avenue House, 42-49 High Holborn, London, WC1V 6NP (Tel: 0171- 936 7016).

1.2 Any evidence on the file should be taken into account. If documents have been seen and noted in the past there is no need to ask to see them again.

1.3 Before granting a decree of divorce or judicial separation, a United Kingdom divorce court needs to be satisfied that the marriage it is being asked to dissolve is in fact valid and subsisting. It is not therefore necessary, when considering the validity of a current marriage, to see documentary evidence of a previous marriage where such a marriage has been terminated by a divorce (or decree of nullity in respect of a voidable marriage) granted in the United Kingdom.

1.4 An extra judicial divorce (i.e. one that is granted by a religious body and not by a court of law) such as a Muslim Talaq or Greek Orthodox divorce, which was granted in this country before 1 January 1974, is acceptable only if the parties concerned were, at the date when the proceedings were instituted, domiciled in a country in which such a divorce would be accepted (see DOMICILE).

1.5 Extra-judicial divorces, which have been granted since 1 January 1974 in this country, are not valid.

1.6 A foreign embassy or consulate cannot be regarded as a part of a country outside the British Isles for the purposes of s.45 of the Family Law Act 1986. A divorce obtained at a foreign embassy or consulate in England cannot therefore be regarded as valid in English law. The court case of Radwan -v- Radwan, in which a Talaq divorce was obtained at the United Arab Republic Consulate-General in this country, led to this decision. However, where the hearing has taken place in another country and the embassy has merely acted as a Registry Office in issuing the divorce document, the divorce may be regarded as valid.

1.7 Decree nisi and decree absolute

1.7.1 The decree nisi is the court’s decision to grant a divorce provided that nothing comes to light which may alter the judgement. The certificate given as a result of this decision shows the period of time that is to be allowed for this purpose. If nothing comes to light, the decree absolute is issued at the end of the waiting period. The decree nisi is therefore a temporary document only and the decree absolute must always be seen.

Divorce Overseas

2.1 The law before 1988

2.1.1 The courts ruled in the case of Indyka v Indyka (1966) that a foreign divorce could be recognised by the English courts if one of the parties had a real and substantial connection with the country in which the decree was granted. The Judge held that when an alteration in English law widens the divorce jurisdiction of the English courts, the correspondingly widened recognition of decrees pronounced abroad applies only after, and not before, the change in English municipal law. Recognition of, in this case, a Czech divorce, pronounced in January 1949, had been sought on the basis that the Czech court’s jurisdiction would have been recognised if the Law Reform (Miscellaneous Provisions) Act 1949 had governed the question of jurisdiction. But since that Act had not taken effect until December 1949, and had no retrospective effect, the Czech decree could not be recognised by English law.

2.1.2 It has not been necessary to quote this ruling since the Recognition of Divorces and Legal Separations Act 1971 came into force on 1 January 1972. The 1971 Act provided the first statutory criteria for the recognition of overseas divorces in United Kingdom law. An overseas divorce would be recognised as valid under the 1971 Act if:

  • it was obtained by means of judicial or other proceedings in any country outside the United Kingdom; and
  • it was valid in that country; and
  • either spouse was habitually resident in, or was a national of, that country.

2.1.3 The effect of the first of these requirements was that:

  • there should have been some formal proceedings, either before a court or another formal body recognised by the state for that purpose (e.g. the Union Council, in Pakistan); and
  • the judicial or other body should be impartial as to the outcome of the proceedings (i.e. a meeting of family members to dissolve a customary marriage or hear the pronouncement of a talaq did not satisfy this requirement).

2.1.4 The 1971 Act was amended on 1 January 1974 by the Domicile and Matrimonial Proceedings Act 1973 which provided for:

  • recognition of other forms of overseas divorce (e.g. “bare” talaq in Kashmir), which would be recognised if both parties were domiciled in a country which permitted such a divorce; and
  • non-recognition of a divorce obtained other than by means of a proceeding in a court of law if both parties had, throughout the year immediately before the institution of the proceedings, been habitually resident in the United Kingdom.

2.2 The law since 1988

2.2.1 Part II of the Family Law Act 1986, which came into force on 4 April 1988, provides criteria for the recognition in the United Kingdom of foreign divorces. Under s.46(1) the validity of an overseas divorce obtained by means of proceedings shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and

b. at the date of the commencement of the proceedings either party to the marriage was:

i. habitually resident in the country in which the divorce was obtained; or

ii. domiciled in that country; or

iii. a national of that country.

2.2.2 Under s.46(2) the validity of an overseas divorce obtained otherwise than by means of proceedings (eg a bare Talaq divorce where the husband declares 3 times “I divorce thee”) shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and



b. at the date on which it was obtained:


i. each party to the marriage was domiciled in that country; or

ii. either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid; and

c. neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date; and

d. there is an official document certifying that the divorce is effective under the law of the country in which it is obtained (or where one of the parties was at the date of the divorce domiciled in another country, there shall be an official document certifying that the divorce is recognised as valid under the law of that country).

NB. A party to a marriage shall be treated as domiciled in a country if domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.

2.2.3 Under s.49 of the 1986 Act, in relation to countries in which several different systems of law are in force (e.g. the USA), certain modifications are made to the conditions for recognition of foreign divorces under s.46:

In the case of a divorce whose validity depends upon satisfying 2.2.1 b. i. Or ii. Or 2.2.2 b. above each territory or jurisdiction should be treated as if it were a separate country.



In the case of a divorce whose validity depends upon satisfying 2.2.1 b. iii. Above the divorce must be effective throughout the country in which it was obtained.

2.2.4 Section 51 provides for the refusal of recognition where recognition would manifestly be contrary to public policy.

2.2.5 Section 52 applies the same criteria for recognition retrospectively to overseas divorces obtained before the date of commencement of Part II of the Family Law Act 1986 but does not affect the validity of any divorce obtained before its coming into force on 4 April 1988 and recognised as valid “by any competent court in the British Islands” under rules of law formerly applicable.

2.3 The fact that a person who has obtained a divorce overseas is later married in this country should not be taken as proof that the divorce is valid. When foreign divorce documents are produced to the Superintendent Registrar before a marriage licence or certificate is issued, their validity in English law is assumed unless they appear at first sight to be irregular (e.g. clearly invalid in the country of issue or granted only for religious purposes).

2.4 The General Register Office do not feel able to extend their enquiries, since the onus lies on the parties concerned to show that they have the personal capacity to contract the proposed marriage. They are warned that they may have to satisfy another authority of the validity of a previous divorce if at any time it becomes necessary to confirm the validity of the marriage.

2.5 Some guidance on divorce in accordance with other laws and religions is given below. Any difficult foreign divorce cases may be referred to INPD (EOP2) for information or advice.

2.6 Talaq divorce

2.6.1 In traditional Islamic law a bare talaq divorce is the pronouncement by the husband taking the form of a triple declaration: “I divorce thee”. This has the effect of dissolving the marriage instantly. However, the Muslim Family Laws Ordinance 1961 (MFLO) lays down formal requirements for the recognition of divorces in all parts of Bangladesh and Pakistan except Azad Kashmir. Under the MFLO, when a man pronounces talaq in any form, he must give the Chairman of the Union Council of the ward notice in writing of the pronouncement and he must also give a copy of the notice to his wife. After this, a period of 90 days (or the end of her pregnancy if his wife is then pregnant) must elapse before the divorce becomes effective. There is a process for reconciliation between the parties which may be attempted during this period.

2.6.2 The MFLO has not been formally extended to Azad Kashmir, and the only form of divorce that may be recognised in Azad Kashmir is the traditional bare form.

2.6.3 A talaq divorce performed in accordance with the requirements of s.7 of the MFLO is capable of recognition under s.46(1) of the 1986 Act (Quazi -v- Quazi [1979] 3 All ER 897, HL). A bare talaq, which has been held by the Court of Appeal in Chaudhary v Chaudhary [1985] Fam 19 not to constitute judicial or other proceedings, is capable of recognition under s.46(2) of the 1986 Act.

2.6.4 The scope for recognition of the 2 types of divorce is thus as follows:

Recognition of full Talaqs performed overseas

i. A full talaq under the MFLO performed wholly in Pakistan (excluding Azad Kashmir or Bangladesh) will be recognised if either spouse was:

-habitually resident, or domiciled in that country, or
-a national of that country

Recognition of bare talaqs pronounced overseas

ii. A bare talaq pronounced in Azad Kashmir will only be recognised if:

-both spouses were still domiciled in Azad Kashmir at the time of pronouncement (or one was, and the other spouse was domiciled in another foreign country that recognised bare talaq divorce), and
-neither spouse had been habitually resident in the United Kingdom throughout the year immediately preceding the pronouncement of divorce, and there is:

i. an official document certifying that the divorce is effective under the law of the country in which it is obtained, or

ii. (where one of the parties was at the date of the divorce domiciled in another country) an official document certifying that the divorce is recognised as valid under the law of that country.

2.6.5 Where the couple are from Azad Kashmir and the husband has become domiciled in this country while his wife is still domiciled in Azad Kashmir, the only way he can effect a divorce that would be recognised under United Kingdom law is through the courts in this country. It should be noted that, before 1 January 1974, the wife was regarded as being domiciled where her husband was domiciled (see DOMICILE).

2.6.6 For guidance on the validity of talaq divorces obtained in the UK, see paragraphs 1.4-1.6 above.

2.6.7 There are instances purporting to be full Talaq divorces where the proceedings are started in this country with the man pronouncing Talaq 3 times here, but then completed overseas (e.g. in Pakistan) by the man writing to notify the Union Council Chairman and his wife there. It was held by the House of Lords in Re Fatima [1986] 2 All ER 32 that such trans-national divorces were not capable of recognition under the Recognition of Divorces and Legal Separations Act 1971 and they would not be recognised under the Family Law Act 1986. To be capable of recognition under ss.45 and 46 of the 1986 Act an overseas divorce must be instituted and obtained in the same country outside the British Isles. This view was reinforced in the case of Berkovits v Grindberg [1995] 1 FLR 477 which involved a Jewish “Get” divorce where the proceedings took place partly in the UK (where the Get was written) and partly in Israel (where the Get was pronounced).

Divorces in Accordance with Different Laws

3.1 Brazilian divorce

3.1.1 Before 1977, Brazilians who married in Brazil could not obtain a divorce. The nearest thing was a provision for legal separation known as a “desquite”, which cannot be accepted as evidence of the termination of a marriage. It was common practice for a couple, one or both of whom had obtained a desquite, to go to Bolivia to marry because Bolivia was prepared to accept a desquite as a divorce, but the marriage would not be valid in Brazil.

3.1.2 Since 1977, it has been possible to convert a desquite into a divorce, which will only be given after 3 years’ legal separation.

3.1.3 Any case involving a desquite or a desquite converted into a divorce should be referred to INPD(L).

3.2 Cypriot divorce

3.2.1 Under the law of Cyprus, a marriage between 2 members of the Greek Orthodox Church, which is solemnised in accordance with the rites of that church, can only be dissolved by a competent tribunal of the Greek Orthodox Church, no matter where it is. Even so, such a divorce can only be recognised if the conditions at 2.2.1 a. and b. are met.

3.3 Ghanaian divorce

3.3.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the proper registration of divorces in Ghana, and was retroactive. All Ghanaians, whether living in or outside of Ghana, can now obtain certificates of divorce and they should be requested from applicants whenever marital status is important.

3.3.2 However, under the Customary Marriage and Divorce (Registration)(Amendment) Law 1991, registration is no longer mandatory. Where the relevant certificates are not available, we should expect to receive a statutory declaration by the heads of the families concerned (or two people representing the legal interests of the parties) confirming the date, place and type (e.g. tribal custom) of the marriage and/or divorce.

3.4 Philippines divorce

3.4.1 Divorce is not generally permitted in Philippines law. With the one exception in 3.4.2 below, the only circumstances where a divorce, where one of the parties is a Filipino citizen, will be recognised is where:

-the other spouse is a foreigner; and
-the couple are validly married; and
-a valid divorce was obtained abroad by the foreign spouse.

3.4.2 Separate arrangements are made for Muslims living the Philippines. The Code of Muslim Personal Laws 1977 provides that where both parties to a marriage are Muslims, a divorce can be obtained at the Sheria court.

3.4.3 In all other cases, a marriage can otherwise only be terminated if the marriage is declared void or is annulled (in either case a court order must be obtained), or if one of the parties dies.

3.5 Turkish divorce

3.5.1 Divorces in Turkey are governed by the Turkish Civil Code 1926. Divorces can only be obtained from a court, and no other form of divorce can be recognised as valid in Turkish law. In pronouncing the divorce, a judge may decree that the respondent cannot remarry for a period of 1-2 years. The divorcee may be prohibited from remarrying for up to 300 days (the same may also apply to a widow or a woman whose marriage has been annulled).

3.6 USA Divorce

3.6.1 Divorce is governed by State rather than by Federal law, and the provisions of s.49 of the Family Law Act 1986 therefore apply. See paragraph 2.2.3 above.
3.7 Zimbabwe divorce

3.7.1 The Southern Rhodesia (Marriages, Matrimonial Causes and Adoptions) Order 1972, which came into force on 12 December 1972, and was retroactive to the illegal declaration of independence (idi), provided that marriages, divorces and annulments performed or granted in Southern Rhodesia since idi should not be regarded as invalid merely because the officials or authorities concerned were appointed by, or were acting for, the illegal regime.

3.7.2 The Southern Rhodesia (Matrimonial Jurisdiction) Order 1970, which came into force on 16 November 1970, gave limited relief to people who had not been able to obtain a divorce in Southern Rhodesia that was valid in United Kingdom law. Its general effect was to give the same jurisdiction to the courts of each part of the United Kingdom to entertain proceedings for divorce or nullity of marriage of a person domiciled or resident in Southern Rhodesia as if that person had been domiciled or resident in that part of this country, whether England and Wales, or Scotland, or Northern Ireland.

3.7.3 The Order required that a person should have completed 6 months’ residence in the part of the United Kingdom concerned before proceedings could be instituted here. If the person was resident in Southern Rhodesia on or after 11 November 1965, and then lived in some other country before becoming resident in the United Kingdom, the residence in the other country would be disregarded in calculating any period of residence required under United Kingdom law. This took into account the fact that some of the people who left Southern Rhodesia after idi might well have spent some time in other countries before deciding to come here. Both these Orders were repealed by Schedule 3 to the Zimbabwe Act 1979.

Spain: Family Law

SPANISH CIVIL CODE: On Family Law (Excerpts)


Book I: Persons; Title IV: Marriage; Chapter VII: Separation

Article 81

Separation shall be judicially decreed, regardless of the form in which the marriage was contracted:

(1) At the petition of both spouses, or of one of them with the others consent, at the expiration of one year after the marriage was contracted. The petition for separation must be accompanied by a proposal for a regulatory agreement to govern the separation in accordance with Articles 90 and 103 of this Code.

(2) At the petition of one of the spouses, when the other has incurred a legal ground for separation.

Article 82

The following are grounds for separation:

(1) The unjustified abandonment of the family home, marital infidelity, abusive or offensive conduct and any other serious or reiterated infringement of conjugal obligations.
Marital infidelity cannot be alleged as a ground for separation when there exists a prior separation in fact of the spouses, by mutual consent freely given, or imposed by the spouse alleging it.

(2) Any serious or reiterated infringement of the obligations regarding the common children or regarding those of any of the spouses who reside in the family home.

(3) Sentence to imprisonment for longer than six years.


(4) Alcoholism, drug addiction, or mental abnormalities, provided that the interests of the other spouse, or of the family, require the spouses to discontinue living together.

(5) The effective cessation of marital life in common for a period of six months by free consent. Such consent shall be understood to be freely given where a spouse requests it from the other spouse in authentic form, giving him or her express notice of the consequences of doing so, and the other spouse fails to manifest his or her will against it by any legally permissible means, or petitions a separation or the provisional measures to which Article 103 refers, within six months of the required summons.


(6) The effective cessation of marital life in common for a period of three years.


(7) Any of the grounds for divorce in the terms provided by numbers 3, 4 and 5 of Article 86.

Article 83

A decree of separation suspends the spouses’ life in common, and terminates the possibility of binding the assets of the other spouse in the exercise of domestic prerogative (potestad doméstica).

Article 84

Reconciliation puts an end to the separation proceedings and leaves what may have been decided therein without further effect. The parties must, however, notify the court of the reconciliation before which the proceedings are or have been held.

The above notwithstanding, the measures taken in relation to the children shall be maintained or modified by judicial resolution whenever there exists just cause therefor.

Chapter VIII: Dissolution of Marriage

Article 85

Marriage is dissolved by the death or declaration of death of one of the spouses, and by divorce, regardless of the manner and time in which it was contracted.

Article 86

Grounds for divorce are:

(1) The effective cessation of marital life for, at least, one uninterrupted year from the time of the filing of the petition for separation, filed either by both spouses or at least by one of them with the consent of the other one when at least one year since the celebration of marriage has elapsed.

(2) The effective cessation of marital life for, at least, one uninterrupted year from the time of the filing of the petition for personal separation, at the request of the petitioner or of one who filed a reconventional claim pursuant to Article 82, once the judgment of separation becomes final, or where, the expressed term having expired, there should be no judgment at trial level.

(3) The effective cessation of marital life for, at least, two uninterrupted years:

(a) From the time the de facto separation is freely consented by both spouses, or the time the judicial decree becomes final, or from the time of the declaration of the legal absence of any of the spouses at the request of either of them.

(b) When the petitioner of divorce proves that when the de facto separation began the respondent had incurred a ground for legal separation.

(4) The effective cessation of marital life for at least five years at the petition of either of the spouses.
(5) A final judgment finding the other spouse guilty of attempting against the life of the petitioning spouse or of his or her ascendants or descendants.

When the divorce is petitioned by both spouses, or by one of them with the other’s consent, a proposal for a regulating agreement for the effects thereof, in accordance with Articles 90 and 103 of this Code, must be attached to the petition or to the first pleading filed in the proceedings.

Article 87

The effective cessation of marital life to which Articles 82 and 86 of this Code make reference is compatible with the continuation, or the temporary resumption of life in the same domicile, when this results, with regard to one or both of the spouses, from necessity, an intent to reconcile, or is in the interest of the children and is duly shown to be so in any legally admissible manner in the corresponding separation or divorce proceedings.

The interruption of life in common shall not imply the effective cessation of marital life if it is grounded on labor or professional reasons, or on whatever reasons of similar nature.

Article 88

The action for divorce is terminated by the death of any of the spouses and by their reconciliation. Reconciliation must be express when it takes place after the filing of the demand.

Reconciliation after divorce does not produce legal effects, although the divorced parties may contract a new marriage between each other.

Article 89

Dissolution of marriage by divorce can only take place by means of a decree of divorce so declaring and shall produce effects from the time this decree becomes final. It shall not prejudice third parties in good faith until it is recorded in the Civil Registry.

Chapter IX: Effects Common to Nullity, Separation, and Divorce

Article 90

The regulating agreement to which Articles 81 and 86 of this Code make reference must deal with, at least, the following subjects:

(1) The determination of the person in whose custody the children under parental authority of both spouses are to remain; the exercise of parental authority; and the regime of visitations, communications, and childrens periods of stay with the parent who does not live with them.

(2) The use of the family dwelling and furnishings.

(3) Contributions to the expenses of marriage and support obligations, as well as the basis for updating them and guarantees, when appropriate.

(4) The liquidation of the matrimonial property regime, when appropriate.

(5) Maintenance which, pursuant to Article 97, must eventually be discharged by one of the spouses.

Matrimonial agreements, entered into for the purpose of regulating the consequences of nullity, separation, or divorce, shall be approved by the court, unless they should be detrimental to the children or seriously damaging to one of the spouses. The rejection must be made by reasoned opinion, and, in such a case, the spouses must submit a new proposal to the consideration of the court for approval, where appropriate. From the moment it receives court approval, the agreement may be enforced by compulsory executory process (vía de apremio).

The measures adopted by the court in the absence of agreement, as well as those agreed upon by the spouses, may be modified judicially or by a new agreement when there is a substantial change in the circumstances.

The court may establish the real or personal guarantees that the performance of the agreement may require.

Article 97

The spouse to whom the separation or divorce produces an economic imbalance in relation to the position of the other, which involves a worsening of the situation he or she had during the marriage, has a right to maintenance which shall be fixed in the judicial decree, taking into account, among other, the following circumstances:

(1) The agreements that the spouses may have reached.

(2) Their age and state of health.

(3) Professional qualifications and the probabilities of gaining employment.


(4) Past and future dedication to the family.


(5) Collaboration, by his or her own labor, with the commercial, industrial, or professional activities of the other spouse.


(6) The duration of the marriage and their marital life.


(7) The eventual loss of a right to a pension.

(8) The wealth and economic means and necessities of both spouses.

The judicial decree shall establish the bases for updating the award of maintenance, and the guarantees for its effectiveness.

Article 98

The spouse in good faith whose marriage has been declared null shall have a right to an indemnification award, if there has been marital life, taking into account the circumstances provided by Article 97.

Article 99

The substitution of an annuity, the usufruct of certain property, or the delivery of capital in assets other than in money, instead of the judicially fixed award pursuant to Article 97, may be agreed upon at any time.

Article 100
After maintenance and the bases for updating it are fixed in the judgment on separation or divorce, the award may only be modified when there are substantial alterations in the economic capability of either spouse.

Article 101

The right to receive maintenance terminates on the cessation of the cause that gave raise to it, by the subsequent marriage of the spouse entitled to it or by his or her marital cohabitation with another person.

The right to receive maintenance does not end on the death of the person who is obliged to make this payment. Nevertheless, the debtors heirs may request the reduction or suppression of the award from the court if the hereditary assets were insufficient to discharge the debt or if their right to the legitimate portion would be affected.


Title II: Matrimonial property regimes; Chapter I: The separation matrimonial property regime and purchases with covenant of survival

Article 41. Economic compensation on the grounds of work

(1) In cases of judicial separation, divorce or marriage annulment, the spouse who has worked for the household or for the other spouse without receiving any payment in exchange or who has received insufficient payment, shall be entitled to receive economic compensation from the other spouse, in the event that this fact has produced a situation of inequality between the two patrimonies, which implies an unfair enrichment.

(2) The compensation shall be paid in money, unless otherwise agreed by the parties or if the judicial authority, on grounds of a justified cause, authorizes that the payment be made with assets belonging to the obliged spouse. The payment shall be made within a maximum period of three years, together with the accrued interests calculated at the legal rate, from the acknowledgement. In this case, the constitution of guarantees in favor of the creditor spouse may be judicially decreed.

(3) This right is compatible with any other economic rights to which the favored spouse may be entitled, but shall be taken into consideration for the assessment of these other rights.

Title III: The effects of the annulment of marriage, divorce and judicial separation

Article 76. Aspects that are the object of regulation

(1) In cases of nullity of marriage, divorce or judicial separation, if there are children under the parental authority, the following must be dealt with:


(A) The parent with whom the children shall have to live together and also, if this applies, the rights of access, the periods of stay and communication with the father or mother with whom such children do not live.

(B) The way in which the custody of the children has to be exercised, in the terms established in Article 139.

(C) The sum that has to be paid for childrens support, in accordance with Article 143, by the father or mother, and the periodicity and means of payment.

(D) The rules for the updating of the support payments and, eventually, of the guarantees to ensure them.

(2) If there are children of age or emancipated who live with one of the parents and have no earnings of their own, it shall be necessary to establish the support that corresponds to them under the terms established in Article 259.

(3) The remaining aspects that, according to the circumstances of the case, will need to be dealt with are the following:

(A) The attribution of the use of the family dwelling, with the appropriate household equipment and, eventually, the use of the other residences.

(B) Any maintenance allowance or support payment that, if any, shall be made by one of the spouses in favor of the other spouse.

(C) The manner, if any, in which the spouses continue to contribute to family expenses.

(D) The rules for updating support and maintenance payments and, if necessary, the guarantees to ensure their payment.


(E) The liquidation, if necessary, of the matrimonial property regime and the division of common assets and properties, in accordance with what is established in Article 43.

Article 77. Regulating agreement

Whenever marriage nullity, divorce or legal separation is petitioned by both spouses acting in common agreement, or by one of the spouses with the other spouse’s consent, a proposal for a regulating agreement shall be attached to the claim or initial writ.
In such a regulating agreement, the aspects indicated in Article 76 shall be dealt with.

Article 78. Judicial approval

(1) The regulating agreement mentioned in Article 77 shall necessarily be judicially approved, except in those aspects that may be harmful to the children. In such cases, the judicial authority shall indicate the points that need to be modified and shall establish the period for carrying out these modifications.


(2) Should the spouses fail to execute the requested modifications, or if these cannot be approved on the same grounds as those mentioned in paragraph 1), the judge will decide as appropriate.

Article 79. Absence of regulating agreement

(1) In cases of marriage annulment, divorce or judicial separation requested by one of the spouses without the consent of the other spouse, the judicial authority shall resolve on the aspects mentioned in Article 76 directly.

(2) If, further to considering the circumstances of the case, the judicial authority deems that the aspects cited in Article 76 can still be resolved by common agreement, such judicial authority may refer the spouses to a mediator or to a mediation institution so that the spouses may resolve their differences, and so that the mediator or mediation institution then submits a proposal of regulating agreement to which, if necessary, the provisions contained in Article 78 shall apply.

Article 80. Modification

(1) The measures established by the courts decision may be modified when subsequent circumstances so require. Such a modification shall be made by means of a judicial decree.

(2) The regulating agreement or the sentence may foresee the relevant modifications in advance.

Article 81. Court order

The payments established by the sentence may be collected by means of a compulsory court order.

Article 84. Maintenance

(1) In cases where one of the spouses financial situation has been impaired as a result of the divorce or legal separation and, in the cases of nullity of marriage, the bona fide spouse only, shall be entitled to receive maintenance from the other spouse. Maintenance shall not exceed the standard of living that the couple led during the marriage, nor the standard of living the spouse obliged to make the payment can afford to maintain.

(2) In order to assess the maintenance awards, the judicial authority shall take the following into consideration:


(A) The resulting financial situation of the spouses as a consequence of the nullity of marriage, the divorce or the legal separation, and the economic prospects for both spouses.

(B) The duration of the marital life in common.

(C) The age and health of both spouses.

(D) In cases where it applies, the specific economic compensation governed by Article 41.


(E) Any other significant circumstance.

(3) Maintenance shall be reduced if the situation of the person who is entitled to receive such an award improves, or if the situation of the person obliged to pay it worsens.

(4) Upon request of one of the parties, the decision may establish the relevant measures in order to ensure the payment of the award and may also establish objective and automatic criteria for updating.

Article 85. Payment of maintenance

(1) Maintenance shall be paid in money and in advance monthly payments.

(2) At any time, by agreement of the spouses or, lacking this, by judicial decree, the spouse obliged to pay maintenance may substitute this by delivery of assets in ownership or usufruct.

Article 86. Termination of maintenance

(1) The entitlement to receive maintenance shall terminate in the following cases:

(A) When the financial situation of the creditor spouse improves in such way that maintenance is no longer justified, or when the financial situation of the spouse who is obliged to pay it worsens in such way that the payment is no longer justified.

(B) When the spouse entitled to maintenance remarries or cohabits matrimonially with another person.

(C) When the spouse entitled to maintenance dies or is declared dead.

(D) When the period for which the payment of maintenance was established has elapsed.

(2) Maintenance shall not terminate with the death of the debtor, although his or her heirs may claim a reduction or the exoneration thereof, if the profitability of the inherited assets is not sufficient to pay maintenance.

Scotland: Family Law




Divorce Jurisdiction


Sections 7 and 8 of the Domicile and Matrimonial Proceedings Act 1973 give the Court of Session in Scotland jurisdiction in actions of divorce or separation if (a) jurisdiction is conferred under Council Regulation (EC) No. 1347 (“Brussels II”) or (b) the action is an “excluded action” and either of the parties to the marriage is domiciled in Scotland on the date when the action begins.An “excluded action” is one in respect of which no court of a Contracting State has jurisdiction under the Council Regulation and the defender is neither a national of an EU state (other than the UK or Ireland) nor domiciled in Ireland.

The Sheriff Court has jurisdiction if (a) the conditions for the exercise of jurisdiction by the Court of Session are met and (b) either spouse (i) was resident in the Sheriffdom for forty days ending with the date on which the action for divorce is commenced or(ii) had been resident in the Sheriffdom for at least forty days ending not more than forty days before the said date and has no known residence in Scotland at that date.


Custody Jurisdiction

If a court in Scotland is exercising jurisdiction in a proceeding for divorce, legal separation or annulment, it will have jurisdiction as to matters of parental responsibility over the spouses’ child if the child is habitually resident in Scotland. If the child is not habitually resident in Scotland, the court may still exercise jurisdiction if the child is habitually resident in another EU Member State;at least one parent has parental responsibility for the child; jurisdiction has been accepted by the spouses; andit is in the best interests of the child.

In actions relating to parental responsibilities which are not subject to the EU’s Brussels II regulation, jurisdiction exists where the childis habitually resident in Scotland oris present in Scotland and is not habitually resident in any part of the UK (unless, in either case, matrimonial proceedings are continuing in a court in the UK concerning the marriage of the parents of the child (Family Law Act 1986), when that court would have jurisdiction).


The formal validity of a marriage is governed by the law of the place where the marriage is celebrated. This law governs the validity of the ceremony and its elements e.g. whether any particular form of words must be used, whether the marriage must take place in a particular location, whether a marriage can be conducted by proxy.

The capacity of one person to marry another is governed by the domicile of the former immediately before the marriage. This law regulates issues such as whether there was consent, age requirements and which relatives one may not marry. In the case of age, no person domiciled in Scotland has capacity to marry abroad if under 16.

The issue of parental consent is slightly more complex. If under the law of the domicile absence of parental consent will render the marriage void no matter where in the world it is celebrated, then it is a matter of capacity. On the other hand, if it is a procedural requirement then it is a matter of formal validity. Marriages of young people aged between 16 and 18 without parental consent where those young people are from England but marry in Scotland have long been regarded as valid in Scotland, on the basis that the English requirement for parental consent is a formal one.


Divorce Law

In respect of a divorce, a Scottish court having jurisdiction and hearing the case will apply Scots law to the divorce proceedings. In proceedings for a decree of nullity, the law of the place of celebration or law of the domicile prior to the marriage will probably apply, depending on whether the alleged ground of nullity relates to formal or material validity.

In respect of maintenance obligations, a Scottish court will apply Scots law where it has jurisdiction and is hearing the case.


Matrimonial property regimes

In the absence of a marriage contract, the rights of the husband and wife in each other’s movable property (whether acquired before or during the marriage) is determined by the law of the matrimonial domicile at the time of the marriage. Where the domiciles of husband and wife are the same at this time, this will be the matrimonial domicile. It is not entirely clear what would happen if they were not the same. It is possible that a test of closest connection would apply, or that the court would look to the intended matrimonial home. The same rule probably applies to immovable property, though this is not totally clear and the law of the place where the property is located may also have a role to play.

If there is a marriage contract, the law applicable to the contract will govern. In the absence of choice, this is likely to be the law of the matrimonial domicile.


Personal status

At birth, a child’s domicile (the domicile of origin) is the same of the child’s father at the time of the child’s birth, if the child is legitimate. If the child is not legitimate, or if the father has died before the child is born, the domicile of origin is that of the child’s mother at the time of the child’s birth. This rule continues to apply until the child is 16, i.e. the domicile changes to follow changes in the domicile of the father or mother respectively. However, if the parents separate and the child has its home with the mother only, it can then take and follow the domicile of the mother, even though the domicile of origin was based on that of the father.

For persons over 16, their previous domicile continues to apply unless they take a domicile of choice. To adopt a domicile of choice, the person must live in the relevant country and intend to continue doing so indefinitely or permanently. If a domicile of choice is abandoned, the domicile of origin will revive to fill any gap until a new domicile of choice may be acquired.

The domicile of married persons is assessed independently of that of the other spouse, although clearly they are likely to have the same domicile if they are living together.

The issue of whether a person is domiciled in a particular country will generally be decided by Scots law, in the absence of any provision to the contrary in e.g. an international instrument to which the UK is party.

The right to name a child is part of parental rights and responsibilities, and if disputed the court would probably make a decision according to Scots law, which would require the welfare of the child to be treated as paramount. Adults are generally entitled to call themselves by what name they like in Scotland, so long as there is no fraudulent intent.

Capacity to enter into contracts, commit delicts, make wills etc is governed by different laws depending on the issue in relation to which the question of capacity arises.


Parent-child Relationship

The rights and responsibilities of parents in relation to their children would be determined according to Scots law whenever the Scottish courts have jurisdiction and are considering the case. Scotland applies the law of the forum in these matters. The same is true of adoption and guardianship. The overriding Scottish test in all these situations is the welfare principle.

So far as legitimacy of the child is concerned, this now has very few consequences in Scotland apart from domicile (see above). However, in an international case the child will probably be regarded as legitimate at birth if that is the case under the law of the domicile of either parent. In cases of legitimation by subsequent marriage of the parents, provided the marriage itself is valid under the appropriate choice of law rule, the effect of the marriage on the child’s status is probably dependent on the law of the child’s domicile immediately before it.

It is not clear what the Scottish applicable law rule is in relation to the issue whether a particular person is or is not a parent of a child.

Romania: Family Law

ROMANIA AND CHILD ABDUCTION: US Department of State 2005 Report on Compliance with the Hague


The Department of State has noted some improvements in the performance of the Romanian Central Authority over the past year, especially with respect to the level of responsiveness to requests for status updates and case information.  Hague cases continue to face lengthy court delays, although there have been some improvements in recent months.

Many of the problems cited in the last report continued in 2004, especially the use of psychological evaluations, an apparent lack of familiarity with the Hague Convention that results in judges and attorneys treating cases as custody determinations, and judicial determinations of resettlement that result because of cases languishing in the Romanian court system.  Delays in case processing on the part of a foreign government should not penalize children or left-behind parents.  The burden of proof lies on the taking parent to prove that the child is in fact re-habituated, and the child should still be ordered returned if the taking parent cannot demonstrate that the child is now integrated into that culture in such a way that his/her habitual residence has changed.

Romania passed Hague Convention implementing legislation in September 2004.  This legislation should improve Hague case processing, particularly because it centralizes the hearing of Hague cases in family courts, allowing the development of judicial expertise.  Under the provisions of this new law, Hague abduction cases are to be tried in the Child and Family Department of the Bucharest Court by family law judges who are trained in the provisions of the Convention.  The law became effective on December 27, 2004.  Pending cases have been or are in the process of being transferred to the new court.  The Ministry of Justice is in the process of drafting internal regulations for the processing of Hague Convention cases according to the new law.  The Department does have some concerns about the consistency of specific articles of the implementing law with the Hague Convention.  For example, the mandated involvement of psychologists in all cases raises concerns, as psychological reports can delay decisions and inevitably go to the merits of custody.  Since the implementing legislation was passed at the end of this reporting period, we will be alert to the effects the new legislation might have on pending and future U.S. Hague cases.

Portugal: Family Law


The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Portugal on September 29, 1983, effective December 1, 1983.

Domestic Laws and Regulations Implementing the Hague Convention

The Central Authority for the Convention in Portugal is the Instituto de Reinserção Social- Unidade Funcional de Convenções Internacionais (IRS) of the Ministry of Justice. The Organic Law on the IRS5 provides for its competence and powers.

Return Requested from Abroad

The Central Authority has only administrative and informational competence, as established by Organic Law.  Courts decide the cases of parental kidnapping and the return and visitation schedules for abducted children. The application for the return of an abducted minor to Portugal must be directed to the Portuguese Central Authority, which will, upon receipt of the return application, analyze and verify all the information and decide whether it complies with the requirements provided for under the Convention.

In order to apply for a child’s return or parental visitation, the requesting parent must authorize the Central Authority to take action, as it cannot act without prior approval of the requesting parent. Because the activities of the Central Authority are informational and administrative, a lawyer will be necessary for the judicial request, although the Central Authority may continue to provide its administrative assistance during the court proceedings. Those who cannot afford to hire a private lawyer and who qualify to obtain public funded assistance may obtain such legal aid.

At the national level, the Judiciary Police (Polícia Judiciária – PJ) is responsible for locating an abducted minor. When a child’s domicile has not been located, the Central Authority will inform Interpol, the agency internationally charged with locating the abducted minor.

Return Requested from Portugal

The requester must fill out an application for the child’s return or parental visitation, which will contain all the essential information for the location of the taken minor, including the name of the child and the child’s date of birth. The requester must submit the application to the Central Authority, which will analyze and decide whether the case meets all the requirements established under the Convention, so that it may take action.

If the Central Authority finds that an application meets all the requirements under the Convention, it will send the return or visitation petition to the Central Authority of the requested country, which will act under its own procedural norms.

Additional Multinational Efforts

Portugal is also a Member of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, adopted in Luxembourg, on May 20, 1980, and ratified by Portugal13on March 18, 1983, effective September 1, 1983. The European Convention protects custody and access rights in international situations and provides prompt, non-bureaucratic assistance from Central Authorities designed by each Member State in discovering the whereabouts and returning custody of a child improperly removed. Applications for the return of custody of a child may be made directly either to a court or to the Central Authorities of any Member State concerned.

In addition, the Hague Convention concerning the Powers of Authorities and the Law Applicable in Respect to the Protection of Minors, of October 5, 1961, was ratified by Portugal on December 6, 1968, effective February 4, 1969.

Domestic Laws Regarding Child Abduction and Parental Visitation

Article 122 of the Portuguese Civil Code19 defines a minor, as the one who has not yet reached 18 years of age. In article 124, the Code states that paternal power or guardianship concludes the minority incapacity. Additionally, article 85 of the same Code states that the minor’s residence is the same as his parents, guardian, or the institution responsible for him.

Article 1887 of the Portuguese Civil Code establishes that a minor can neither abandon his parents’ residence (or the one that his parents designate), nor can he be taken away from it. If one of these situations occurs, either one of the parents, or the person in charge of the minor, may appeal to the tribunal or to the competent authority for the child’s return.

Article 249 of the Criminal Code of Portugal20 punishes child abduction with imprisonment for up to 2 years, or a fine of up to 240 days, when the child is abducted by violent or coercive means. The same punishment is applied when the abductor refuses to return the minor to the custody of his parents, guardian, or other person with custody of the minor. The criminal procedure in these cases depends upon a complaint.

Article 179 of the Criminal Code establishes that if the parent or guardian of a minor is convicted of the crimes under articles 163 to 176 (which include sexual exploitation and trafficking of children), he may lose parental power or guardianship for a period of 2 to 15 years. The paternal control over children is established under the Civil Code, articles 1885 to 1887.

Portuguese domestic family law understands paternal control as an advantage for children’s protection, not an advantage for the parents. The legislation, doctrine, and jurisprudence aim for both parents to always exercise equal paternal control, and to focus on the welfare of the minor. In fact, in the event of conflict between the parents, the decision of who will exercise the paternal control must be driven by the necessities of the minor, as well as his well being and harmonious development, as emphasized by the collected jurisprudences. Yet, paternal power is irrevocable, as stated in article 1882 of the Civil Code. Decree-Law 314/78 created the Organization of Minors’ Guardianship (Organização Tutelar de Menores – OTM), where a minor’s guardianship rights, parental visitation and other minors’ rights and procedures are established. The local framework also protects children by means of Complementary Law No. 147/9923 (Lei de Protecção de Crianças e Jovens em Perigo), which provides for the protection of children and young people that are at risk; this legislation is regulated by Decree-Law No. 332-B/2000.


U.S. – Portugal Child Support Enforcement Agreement (May 30, 2000)

The United States and Portugal signed a reciprocal child support enforcement agreement in Lisbon May 30 which provides a mechanism for recovery of alimony and child support owed by ex-spouses. The signing was in conjunction with President Clinton’s visit to Portugal.

Agreement on Reciprocal Enforcement of Child Support

Secretary of State Madeleine Albright and Foreign Minister Gama today signed an Agreement on Reciprocal Enforcement of Child Support.

This agreement provides a mechanism for Americans to recover alimony and child support owed to them by ex-spouses who are in Portugal. Conversely, Portuguese parents may file for support owed to them by ex-spouses in the United States. To use a colloquial expression, this is the international version of cracking down on “deadbeat dads” (and moms).

Under the agreement, a parent in the United States can file an application to recover delinquent maintenance payments from a former spouse. To facilitate the process, all questions will be handled through a Central Authority for International Child Support in each country. In the United States, applications are filed through the Department of Health and Human Services (HHS). HHS will forward the application to Portugal’s central authority, which will locate the parent and recover support payments. Portugal is the first country to have an official bilateral child support agreement with the United States.

Poland: Family Law


The following is an extract from Poland’s answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction:

A1. The Polish Family Law does not provide for any persuasive measures against persons who abducted or retained a child abroad. Yet the Family and Guardianship Code considers abduction or retention of a child by one of the parents against the existing agreement or court judgement an abuse of parental authority. Such a fact shall serve for the parent, who did not accept the abduction or retention, as grounds for claiming the other parent to be deprived of parental authority or to have it limited by virtue of a court judgement. In the case of abduction or retention of a child who stays in the custody of a foster family or of a guardianship centre, it is a prosecutor who shall make the aforementioned claim. In both cases the proceedings in relation with depriving a parent (or parents) of parental authority may be instituted ex officio by the guardianship court as well (Article 111 of the Family and Guardianship Code).

Abduction of a child by a person who is not his/her parent (e.g. by a relative or by a stranger) shall not involve the above-described result, yet such a person shall fall under criminal liability. Moreover, the person may bear the civil liability for damage in case a child suffered a substantial harm, e.g. a detriment to health, as a result of abduction or retention.

The regulations concerning the issuance of a passport to a child are crucial for the prevention of child abductions abroad. This issue is being discussed in detail under point B1.

A2. Article 211 of the Criminal Code has a preventive effect and at the same time acts as deterrent to potential abductors. A person who, contrary to the will of the person appointed to take care of or supervise, abducts from the territory of Poland a minor person under 15 years of age shall be subject to the penalty of deprivation of liberty for up to 3 years. A person who attempts, as well as a person who acts as a complice or who incites the act of abduction shall be subject to the same penalty. Also a Polish national who retains a child abroad shall be subject to penalty, if the act is punishable in the place where it has been committed. Abduction of a child to Poland or a childs retention in Poland shall be punished on the same grounds. It needs to be noticed, however, that according to the Supreme Courts interpretation of Article 211 of the Criminal Code, the factor that conditions the offence committed by a parent to fall under this provision is the suspension or deprivation him/her of parental authority over the child prior to the abduction or retention. Obviously, this condition shall not refer to the abduction or retention effected by a person who is not a parent.

A3. A guardianship court, in view of a threat of abduction or retention of a child abroad, may prohibit, by means of a provisional order (in a custodianship case), the child to leave the territory of Poland. Moreover, a guardianship court may also provisionally apply other preventive measures, which seem to be most effective in a given situation, in order to prevent abduction or retention (e.g. deposit). Such a decision is enforceable from the very moment of its issuance. A decision on prohibiting a child to leave Poland until the guardianship proceedings is concluded shall be transferred by a court to the Border Guards Headquarters, which is a unit responsible for the notification of the border check points.
The provisional prohibition of removal of a child from Poland may be also adjudicated in divorce proceedings. A judgement in this kind of proceedings may be issued:

  • upon a request by a parent who shall prove the existing risk of a child abduction,
  • by a court acting ex officio.

In this case, a judgment shall be also immediately enforceable, despite the possibility of being appealed against.

A4. The Polish law admits the possibility of issuing by a guardianship court an emergency decision prohibiting a child to leave the territory of Poland or otherwise making it impossible to abduct or retain a child. The possibility of issuing by a guardianship court the aforementioned judgement can be also obtained out-of-hours, since there are additional duty hours held by judges in family courts. There is no need to appoint a hearing for this purpose.

A5. We express the opinion that the decision concerning a child’s residence lies within the scope of parental authority. Parents should take this decision together, yet if they fail to come to an agreement the decision should be taken by a guardianship court. A child should have a right to express his/her opinion on this issue guaranteed and this opinion should be taken into account, provided that a child has reached a sufficient level of development.

A6. There is a general feeling that the system of the existing legal regulations in Poland is comprehensive as far as this issue is concerned and it seems to be quite successful in preventing child abductions abroad. These provisions are generally applied in practice. Obviously whether they prove effective or not in a given situation depends on a number of factual conditions.

Panama and Child Abduction

Panama and Child Abduction:

2012 State Department Report The Office of Children’s Issues of the U.S. State Department’s Bureau of Consular Affairs has recently released the annual report on Hague Convention compliance. The report details various issues of non-compliance with member countries. It places countries under two categories; “Not Compliant” and “Demonstrating Patterns of Noncompliance,” with the former category signaling more serious compliance problems. This year Panama has been classified as “Demonstrating Patterns of Noncompliance.” The text of the 2012 report follows, as well as case summaries from the report. Patterns of Noncompliance with the Convention: Panama Panama demonstrated patterns of non-compliance with the Convention in the area of judicial performance. In four specific cases, the USCA observed significant delays in scheduling hearings during appeals. In addition, the courts requested extensive and costly psychological and socioeconomic evaluations of parents’ homes in the United States. Even when parents submitted positive evaluations to fulfill the courts’ requests, the return of children was denied. As at least one Panamanian judge noted in her dissenting opinion, Panamanian courts appear to treat Convention proceedings as custody hearings rather than determinations of habitual residence. Communication between the USCA and Panamanian Central Authority (PCA) on Convention cases was good. In January 2011, the Government of Panama participated in a judicial training seminar for Panamanian judges and prosecutors. The PCA expressed interest in holding annual seminars for Panamanian judges to discuss best practices of the Convention, but did not respond to follow-up communication in January and October. Case Summaries: 1. In November 2010, the LBP attended the Convention hearing and traveled to Panama again in December 2010, to participate in psychological evaluations. The LBP informed the USCA that the judge made child support demands and ordered a complete home study. In April 2011, the USCA forwarded the PCA a requested home study report. In June 2011, the PCA stated that the judge awaits a psychological evaluation of the TP and will then reach a decision. The USCA and the U.S. Embassy Panama City have regularly requested updates from the PCA on the court proceedings. 2. In September 2010, the LBP attended the first Convention hearing. The judge ordered a psychological evaluation of the LBP. On September 23, 2010, the judge requested a socioeconomic report of the LBP’s home and personal circumstances. In January 2011, the USCA forwarded the PCA an extensive home study report. In March 2011, the judge denied the return of the children. The LBP appealed the decision on March 28, 2011. The USCA and the U.S. Embassy Panama City have regularly requested updates from the PCA on the court proceedings. ————————————————————————————————————————– Here are the provisions of Panama law concerning taking children out of Panama. As with other Latin American countries Panama has strong and efficient exit controls and in general it bars one parent or anyone else from taking children out of Panama without the express authorization of the other parent or a court order. REMOVAL OF CHILDREN FROM PANAMA PANAMA IMMIGRATION LAW (2008) (unofficial translation) TITLE VI IMMIGRATION CONTROL CHAPTER 1 ENTRY AND EXIT Article 38. The immigration control will be exercised by the National Immigration Service, according to the present Law Decree and its regulations, in compliance with the immigration policy as established by the Executive Branch. Article 39. The nationals in order to exit the country shall present an updated passport or a letter of safe-conduct and comply with the other requirements that the present Law Decree establishes. The National Immigration Service will carry a registry of immigration control of the underage persons, in which their identities will be included, the country of destination, the identification of the responsible person and the document of authorization. Article 40. The departure from the national territory of any foreign or Panamanian underage person that is found under any immigration category, will be allowed in the following cases: *1. If he/she is accompanied by the father or the mother. *2. If he/she is accompanied by one of their parents, and this one has the written authorization from the other, duly authenticated by a notary public. *3. If he/she is accompanied by one of their parents, and this one has the written authorization from the judge duly authorized for this purpose, and in the case that one of the parents is deceased, the death certificate of the absent parent shall be attached. *4. If he/she is accompanied by a third party a written authorization shall be presented from both parents, according to what is established in numerals 2 and 3 by the present Article. *5. If the underage person travels alone a written authorization from both parents shall be presented, according to what is established in numerals 2 and 3 by the present Article. Paragraph: The foreign non-resident underage persons are excluded from this disposition. Article 41. The immigration authorities located at the immigration posts shall prevent the entry or exit of foreigners, and the exit of nationals, when there is an order in place issued by a competent authority. Article 42. The foreigner that has incurred in a infringement or violation of immigration law, may not exit the country without having cancelled the corresponding financial penalties. By not having the financial resources to comply with the imposed penalty, his or her deportation procedures shall proceed. Article 43. Without prejudice to the current international conventions in the Republic of Panama, in order to enter the national territory, foreigners shall comply with the following requisites: *1. To enter by land, air or sea immigration posts officially made available. *2. To present, by petition from the immigration authority, their passport or current travel document and, in case that it is required, the current entry visa. *3. To allow to be interviewed by the competent authorities at the moment of entry or exit, that their data and biometrics registry to be validated in situ and their luggage and personal documents to be inspected and verified. *4. To present the Ingress and Egress Card provided by the international transportation company, duly completed, without prejudice of the right from the National Immigration Service to implement other automated mechanisms of collecting the information, according to the international standards. *5. Not having an impediment to enter. *6. To have proof of financial solvency to cover their expenses while remaining in Panamanian territory. An exception is made from this disposition when the passenger is in transit who remains within the immigration facility. *7. To have a return ticket to their country of origin or residence, when required by the immigration category. *8. To have cancelled all of their obligations with the National Immigration Service. *9. To comply with health standards as established by the Ministry of Health, as well as any other measures ordered by other competent authorities. Article 44. The foreigner will have the obligation, at the moment of registration, to present his/her passport or travel document, as well as to provide to the owners or hotel managers or lodging places, the information about their stay and departure. At the same time, the owners or hotel managers or lodging places will have the obligation to send this information to National Immigration Service that will implement automated mechanisms for its collection. Article 45. Every foreigner that is found within the national territory must carry his/her immigration document of identification and show it to the competent authority, when it is required to do so.

Mexico: Family Law


Mexico is a renowned haven for international child abductors.

It does not comply with its international obligations under the Hague Convention. Its procedures for enforcing its Hague Convention treaty obligations are weak, unpredictable and entirely ineffective.

The Centre for International Family Law Studies in Cardiff, Wales compared seven jurisdictions, including Mexico. The conclusion was that Mexico was by far the worst offender in its failure to return abducted children.

The following is the U.S. State Department’s 2010 Report on Mexico’s continued noncompliance with the Hague Convention.  The full report can be found here:

The Department finds Mexico not compliant with the Convention in FY 2009. The USCA observed noncompliance in the areas of law enforcement and judicial performance, and experienced serious difficulties communicating with the Mexican Central Authority (MCA) that resulted in costly inconvenience for LBPs and significant delays in processing return applications.

The USCA submitted 114 Hague applications to the MCA in FY 2009, predictably more than to any other country to which children were abducted from the United States given the cross-border activity between Mexico and the United States. The USCA identified 53 unresolved cases that had been pending for 18 months or more subsequent to the filing of the application (see “Unresolved Return Applications” section of this report). In 38 of these unresolved cases, the USCA requested the MCA’s assistance to locate the children with the help of Mexican law enforcement authorities, including Interpol and Mexico’s federal investigations agency, the Agencia Federal de Investigación (AFI). In many of the cases, the LBP was able to provide the MCA with last known street addresses for the TP and child along with telephone numbers and the names of the schools the child might be attending, but the Mexican authorities failed to locate them. Two main factors, we believe, contributed to this problem: first, too few law enforcement agents have been assigned to cover large territories and populations; and second, an apparent lower priority has been given to international child abduction cases compared to other, increasingly violent criminal activity.

Mexico took some encouraging steps to comply with the Convention during FY 2009. With respect to the USCA’s pending Hague applications, in 30 cases children were returned from Mexico. The MCA assisted U.S. LBPs in at least six cases by contacting Mexican consulates in the United States to request that they expedite processing of powers of attorney needed for a third party to represent the LBP in court hearings in Mexico, and to authorize the third party to take temporary custody of the child to bring him or her back to the United States because the LBP could not travel. The MCA and the state Supreme Courts of Nuevo León and Guanajuato collaborated with the U.S. Embassy to carry out two judicial seminars in late September, involving USCA and academic experts from Guadalajara and Mexico City.

In FY 2009, Mexican courts continued to demonstrate patterns of delay in processing applications under the Convention, as illustrated by several of the cases listed under Mexico in the “Unresolved Return Applications” section of this report. In at least two instances, six months elapsed between the time the case was assigned to a court and the date of the first hearing; in another, seven months elapsed. In five other cases, it took between 16 and 55 months before the court held the first hearing on the application for return. These delays disadvantaged LBPs and led to rulings that the children should not be returned because they had become “settled” in their new environment, an exception to return listed in Article 12 of the Convention.

The USCA observed the following three causal factors for judicial delays: (1) lack of implementing legislation or procedures for Convention applications and many Mexican judges following inapposite procedures found in state civil codes in resolving such cases; (2) lack of understanding of the Convention by many Mexican judges, as evidenced by extensive requests for information, including letters under Article 15 of the Convention from the USCA to confirm that a particular case involved an international child abduction as defined by the Convention; and (3) TPs absconding with the children when summoned to a hearing because they were notified of the hearing but neither they nor the children were secured in any way. The USCA has observed that a tool for securing children in the Mexican system is for the judge to place the child temporarily in a children’s protection service (Desarrollo Integral de la Familia, or DIF) shelter while the case is being processed, but judges are reluctant to place children in these shelters unless the TP is determined to be a clear danger to the child.

Application of the “amparo” (constitutionally-based appeal) process in ways that are inconsistent with commitments under the Convention is an ongoing problem. TPs sometimes allege that the procedure under the Convention violates their right to due process under the Mexican Constitution. In response to the filing of an amparo, judges issue a provisional order that immediately freezes proceedings under the Convention pending adjudication of the underlying constitutional issue. Precedent exists in Mexican law to promptly adjudicate and reject an amparo in a Convention case alleging violation of due process. For example, both the Mexican Supreme Court and the highest court in the Federal District have determined that procedures under the Convention comport with the Constitution’s due process requirements, and these decisions have been relied upon by lower courts. Despite these positive developments, adjudication of Convention-related amparos is still subject to frequent delay.

During the reporting period, the MCA, the Hague Permanent Bureau, and the U.S. Government collaborated in three seminars designed to enhance judicial awareness of the Convention, with special emphasis on the compatibility of the Convention with the due process guarantees of the Mexican Constitution. The USCA and the U.S. Embassy repeatedly asked by email, telephone, fax, and letters for status updates on the longstanding cases detailed in the “Unresolved Return Applications” section of this report, but received no replies by the end of the reporting period in at least 19 of these cases.

The MCA has inadequate staffing. The Hague Permanent Bureau’s Guide to Good Practice indicates that central authority staff should be “sufficient in numbers to cope with the workload” (Guide to Good Practice on Central Authority Performance, § 2.4.1). In the USCA’s view, the MCA needs more staff in order to comply with Convention requirements, and Mexico needs to allocate more resources to enhance judicial training programs to improve judges’ understanding of the Convention, to establish procedures to process applications in the absence of implementing legislation, and to improve Mexican law enforcement’s ability to locate missing children.

Korean Family Law

 Grounds for Divorce in Korea

A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Code. Both spouses need to agree and appear in court in Korea.

Alternatively, the grounds for a judicial divorce in Korea are:

1. An unchaste act (adultery);

2. Malicious desertion;

3. Extreme maltreatment by the other spouse or by his/her lineal ascendants;

4. Extreme maltreatment of one spouse’s lineal ascendant by the other spouse;

5. When the death or life of the spouse has been unknown for three years; or

6. Any other serious reason for which it is difficult to continue the marriage.

There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).

The Korean judicial divorce process is a fault-based contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into an unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting a divorce to the party at fault goes against Confucian morality (doei), and may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.

The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient, and wise.


Financial Issues in Korean Divorce Law


The Korean Civil Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(1).

The courts consider such factors as the parties’ ages, occupations, the reason why they came to a divorce, and their contribution to the property in deciding the proportion. The property that can be divided is property that was acquired during marriage through the cooperation of both spouses. Property that was acquired solely through the individual effort of one spouse even during the marriage is treated as the individual property of that party. Therefore, the court has a very broad discretion to determine what property is divisible, based on the extent to which the parties “cooperated” in the creation of any particular asset.

Of critical importance is the language in the Code to the effect that the Family Court should determine the amount and method of division “considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(2).

Article 830 defines “particular property” as property that a spouse owned before marriage or property acquired during marriage but is under the name of only one spouse. The meaning of “particular property” in terms of divisible property under Article 839-2 is different from the meaning under Article 830. Property accumulated during marriage that is under only one spouse’s name is nonetheless divisible if it resulted from cooperation of the married couple.

The Supreme Court of Korea has affirmed lower court rulings that have insisted that the household labor of one spouse must be taken into account when applying this rule. Nonetheless, the Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances are divisible only if at the time of the divorce they have been received or the date of the retirement and the amount has been declared.

In addition, there is no spousal maintenance in Korea and the courts have the power to adjust the property division in favor of the economically disadvantaged party. For this reason, in some cases a nonworking spouse has received more than half of the parties’ assets.


Choice of Law in Korean Divorce Law


Korean courts apply the law of the parties’ common nationality to their divorce and to matters arising from the divorce. If there is no common nationality they will apply the law of a common habitual residence or otherwise the law of the place that is most closely connected to both spouses. Article 840. Korean Civil Code.

However, if one of the spouses is a Korean national whose habitual residence is in Korea the court must apply Korean law. Korea, Private International Act, Art. 39.

If the parties have chosen a foreign law to govern their marital property the choice will be respected if the agreement complies with execution requirements and if the law that is chosen is that of either spouse’s nationality or habitual residence (or in the case of real property is the law of the location of the property). Korea, Private International Act, Art. 38.

Issues concerning the legal relations between parents and children are governed by the law of the parents’ common nationality or otherwise by the law of the child’s habitual residence. Korea, Private International Act, Art. 45.


Korean Recognition of Foreign Divorce Decrees


Article 203 of the Korean Code of Civil Procedure provides as follows:

A final foreign judgment shall be valid and enforceable only if it satisfies the following conditions:

1. The jurisdiction of the foreign court of judgment is not denied by any law, or treaty;

2. if the losing defendant is Korean, he received service of summons or other orders necessary for the commencement of the action other than by public notice, or he made an appearance without receiving service thereof;

3. the foreign judgment is not contrary to the public policy or good morals of Korea; and

4. reciprocity is secured between Korea and that foreign country.

Two other provisions of the Korean Code of Civil Procedure are also of significance to enforcement:

Article 476 provides:

1. Enforcement based on the judgment of a foreign court may be carried out only when the admissibility thereof is pronounced by way of a judgment of enforcement rendered by the Korean court.

2. In regard to a suit demanding a judgment of enforcement, the District Court of the place where the general forum of a debtor exists shall have jurisdiction, and in case no general forum exists, the court having the jurisdiction over the action against the debtor in conformity with provisions of Article 9 shall have jurisdiction.

Article 477 provides:

1. A judgment of enforcement shall be rendered without inquiring into the merits of the decision.

2. A suit demanding a judgment of enforcement shall be dismissed in the following cases:

(i) When it is not certified that the judgment of a foreign court has become irrevocable;

(ii) When the foreign judgment does not fulfill the conditions prescribed in Article 203.

The effect of the three statutory provisions is to provide several distinct requirements that must be satisfied if a foreign judgment is to be enforced in Korea:
(a) The requirement of finality and conclusiveness


Interim awards are not the subject of enforcement proceedings in Korea. Foreign temporary dispositions are not recognizable because of their nature as provisional remedies.

A foreign judgment will be considered a final judgment only if there exists no possibility of a future appeal. The party seeking to enforce a foreign judgment must prove either that an appeal is not possible or that the time for an appeal has passed. California counsel should advise as to whether or not these conditions have been fulfilled.

An order for pre-judgment attachment and an order for pre-judgment injunction are examples of non-final judgments. Similarly, even if a foreign judgment which is permitted provisional enforcement pending an appeal is enforceable in the concerned jurisdiction, it cannot be a subject of recognition in Korea so long as it is not final.
(b) The issue of the location of the subject-matter


The in personam and in rem concepts are alien to Korean jurisprudence. Generally, a foreign judgment in rem would be recognized and/ or enforced in Korea when the judgment concerns immovable or movable property that was within the jurisdiction of the foreign court at the time of the proceeding.


(c) The jurisdiction of the foreign court


It is clear that a Korean court will not enforce a judgment of a foreign court concerning a dispute that is subject to the exclusive jurisdiction of Korea or a third country. For example, in an action concerning rights in Korean real estate Korean courts have exclusive jurisdiction. This will apply to movables located in Korea.
(d) Public policy


Public policy or good morals in Section 203 are judged by Korean standards. The requirement has a broad meaning, which may range from substantive contents of the foreign judgment to procedural fundamentals. The reasons leading to the conclusion as well as the conclusion of the foreign judgment itself should be examined in deciding whether or not the content of the foreign judgment is contrary to public policy or good morals.

A judgment ordering payment of support money should be recognized at least in cases involving foreigners, even if it based on polygamy, in view of the fact that the violation of the principle of monogamy is merely indirect. Public policy means the fundamental principles or ideology of Koreas national legal order and the general sense of morality prevailing in Korean society. The compatibility of a foreign judgment with public policy should be determined by comparing the personal and public interests that might be promoted by recognizing a foreign judgment with the possibility that the national legal order or social ethics may be infringed thereby.

A foreign judgment, the substance of which is not compatible with fundamental principles of Korean law, cannot be recognized in Korea. In determining compatibility with public policy, the factual basis of a judgment, as well as its text, must be taken into consideration. Thus, even a monetary judgment may be held in violation of Korean public policy if the factual basis of such judgment is so illegal or repugnant that the assistance of the Korean courts in implementing the judgment is deemed unacceptable in light of Korean legal philosophy. For example, a judgment ordering the defendant to deliver contraband goods, or a judgment confirming the legality of a concubine is not recognizable in Korea.

Article 17(1) of the Korean Conflict of Laws Act provides that The matrimonial property system shall be governed by the lex patriae of the husband at the time of the marriage. Article 18 of the Korean Conflict of Laws Act provides that Divorce shall be governed by the lex patriae of the husband at the time of the occurrence of the causal facts: Provided that the court may not adjudicate a divorce if the causal facts do not constitute the chief causes for a divorce under the Acts of the Republic of Korea.

Article 23 of the Korean Conflict of Laws Act provides that the duty to support shall be governed by the lex patriae of the person liable to support.

Article 840 of the Korean Civil Act sets forth the bases for a judicial divorce, which are:

1. act of unchastity,

2. malicious desertion,

3. extreme maltreatment,

4. death or life of the spouse is unknown for three years and

5. any other serious cause for making it difficult to continue the marriage. There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).

The Korean judicial divorce is premised on the fault-based system of a contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting divorce to the party at fault goes against the Confucian morality (doei), and it may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.

The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. (Lee, p. 493). In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient and wise.

(e) Reciprocity


It is not necessary that a Korean judgment has been recognized in practice if it is predictable that a Korean judgment will be recognized in light of statutes and legal theories in the foreign country. The conditions of recognition do not have to be identical in Korea and the foreign country. A substantial similarity in important points of the respective requirements should be considered sufficient. The term reciprocity in Section 203 means that the particular foreign country does not inquire into the merits of a Korean judgment by reason of a treaty or its domestic law, and that such foreign country would recognize the validity of a Korean judgment under a standard similar to or more lenient than that of Article 203. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.

Several scholars construe reciprocity to mean that the foreign equivalent of Art. 203 must be either the same or more lenient than the Korean standards for reciprocity. Others argue that the foreign recognition standards not differ in any important respects from the requirements found in Art. 203. Recognition of a foreign divorce judgment becomes impossible, however, if the husbands national law is not applied in a suit in which the divorce defendant is Korean. The only court case to face this issue involved a Nevada ex parte divorce decree granted to a Korean businessman who had previously established a temporary residence in New York. The Supreme Court case 71 Da 1634 on Oct. 22, 1971 refused to recognize the Nevada divorce judgment between two Korean spouses on the ground of reciprocity.

Since the Nevada court granted him a divorce for a reason not available in Korea (noncohabitation), the Supreme Court reasons that giving res judicata effect to the Nevada judgment, and thereby barring the wife’s subsequent suit for divorce for malicious desertion and a monetary settlement, which it was considering, would violate Korean public policy evident in Article 18 of the Law concerning Conflict of Laws. While a foreign divorce judgment may be conclusive as to the question of marital status without application of Article 203, any provisions for payment of support can only be enforced by a suit in exequatur under Article 476. Recourse to exequatur on the foreign judgment will therefore cause Article 203 to become directly applicable, including the reciprocity requirement in Article 203 (4).

In a 1971 case involving the recognition of a divorce decree of a Nevada state court, the Supreme Court of Korea clearly declared its support of the first theory (that is, the theory of same or more generous conditions). However, although the Supreme Court has never expressly admitted that it changed its position on this point, the Supreme Court is generally believed to have changed its position and nowadays to support the second theory since a decision of the Seoul District Court of 1995 which expressly took the second theory was upheld by the Supreme Court. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.

The lower Korean courts have held that there was reciprocity between Korea and the State of New York, Germany, Japan, respectively. However, the Supreme Court of Korea denied the existence of reciprocity between Korea and Australia.
(f) Extent of Recognition/ Enforcement


It is generally accepted in Korea that when a foreign judgment deals with more than one claim, recognition may cover only part of the judgment. It was not clear whether the amount for a judgment for one claim may be recognized only partially in terms of amount. An example is to recognize a judgment for punitive damages only to the extent consistent with the public policy of Korea by reducing the amount of the judgment. However, in a recent case the Supreme Court of Korea upheld the decision of the Seoul District Court which has expressly recognized only 50% of the amount of the foreign judgment.

There is also the question of public policy about a foreign judgment (particularly an American court) awarding so-called punitive damages or excessive damages. Some commentators have argued that Korean courts should refuse to recognize such a foreign judgment since it is inconsistent with the international standards for compensation of damages or, alternatively, Korean courts should reduce the amount of damages to a level comparable to international standards. In this connection, it should also be noted that the Conflict of Laws Act of Korea provides that damages for a tort committed abroad may be awarded in Korea only to the extent allowed under the relevant Korean law (Sec. 13 (3) CLA). In light of this provision, it may also be argued that a foreign judgment awarding damages for an amount greater than the one that may be awarded by a Korean court in a similar case should be regarded to be contrary to the public policy of Korea.

The 1995 case involved the recognition and enforcement of a judgment of the court of the State of Minnesota against the Korean defendant ordering payment of $500,000 as damages (including mental anguish, physical injury, consequent medical expenses, loss of earnings, etc) plus reasonable compensation for damages arising out of the assault and rape of the plaintiff, the Eastern Branch of Seoul District Court found that the amount of award was much higher than would be acceptable under Korean law for such damages and thus reduced the amount of compensation that would be enforceable to $250,000, i.e. 50% of the original amount awarded by the Minnesota court, based upon the rationale that recognition and enforcement of the portion in excess of $250,000 would be against the public policy of Korea. The judgment was upheld by the Supreme Court of Korea in 1997. See Judgment of September 9, 1997 in re 96 Da 47517 Case.

Jordan: Family Law



Note: The information contained in this flyer is intended as an introduction to the basic elements of children’s issues in Jordan. It is not intended as a legal reference. Currently there are no international or bilateral treaties in force between Jordan and the United States dealing with international parental child abduction. The Hague Convention on the Civil Aspects of International Child Abduction cannot be invoked if a child is taken from the United States to Jordan, or vice versa, by one parent against the wishes of the other parent or in violation of a U.S. custody order.


Jordanian laws regarding divorce and custody of minor children are adjudicated in religious courts. If the marriage partners are Muslim, disputes will be resolved before a Sharia court judge who will apply principles of Islamic law. In the case of Christians, the court will be an Ecclesiastical Court composed of clergymen from the appropriate religious community. For Christians, the law will be derived from principles governing family status in the Greek Orthodox Church, Roman Catholic Church or other Christian denominations.

Child Custody Law

In both theory and practice, Muslim and Christian courts in Jordan differ very little in how they resolve disputes over the custody of children of divorced or separated parents. The relevant laws all give priority for custodianship to the mother as long as certain restrictive conditions are met. In Muslim courts, this right of custody extends to the natural mother until the children reach 18 years of age. In cases where custody of small children is granted to a woman other than the mother, custody reverts to the father when a boy reaches age nine and a girl reaches age eleven. Christian courts will generally award custody to the mother until the children come of age.

In actual practice, the conditions placed on the mother’s primary right to custody often enable the father to maintain a great deal of influence on the rearing of the children even though he may not have legal custody. For example, travel restrictions exist in Jordan. The mother must seek the fathers approval to travel with the children. Frequently, he is actually able to assume legal custody against the wishes of the mother, when she is unable or unwilling to meet the conditions set by law for her to maintain her right to custody of the children.

A mother can lose her primary right to custody of a child in a number of ways. The court can determine that she is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious standards. The mother can void her right to custody by re-marrying or by residing in a home with people that might be “strangers” to the child. The mother may not deny visitation rights to the father or the paternal grandfather and may not travel outside Jordan with the child without their approval and the approval of the court. In general, a Jordanian man divorcing his non-Jordanian wife will be awarded legal custody of their children by showing that any of the above conditions may not be met to the satisfaction of the court.

Right of Visitation

In cases where the father has custody of a child, the mother is guaranteed visitation rights. It has been the experience of the Embassy in Amman that the father and the paternal grandparents of the child are generally very open and accommodating in facilitating the right of the mother to visit and maintain contact with the child.

Enforcement of Foreign Orders

Custody orders and judgments of foreign courts are not enforceable in Jordan if they potentially contradict or violate local laws and practices. For example, an order from a U.S. court granting custody to an American mother will not be honored in Jordan if the mother intends to take the child to the United States and live outside of Jordan. Nor will Jordanian courts enforce a U.S. court decree ordering a parent in Jordan to pay for child support since Jordanian law states that the parent with custody is responsible for providing financial support for the child.

Parental Child Abduction

Child abduction is a serious offense in Jordan. Any person, including a parent, who abducts a child in order to deprive the legal guardian of custody, or to unlawfully obtain custody and remove a child from Jordan, faces a prison sentence of three months to three years and a fine. A mother may also face serious legal difficulties if she attempts to take her children out of Jordan without the permission of the father. Border officials may ask to see such permission in writing before allowing children to exit.

Final Note: American citizens who travel to Jordan place themselves under the jurisdiction of Jordanian courts. If a Jordanian parent chooses to remain in Jordan or leave a child behind in Jordan, the U.S. Embassy cannot force either the parent or the Jordanian Government to return the child to the United States, nor is it possible in most cases to extradite a Jordanian parent to the United States for parental child abduction. American citizens planning a trip to Jordan with dual national children should bear this in mind.