INTERNATIONAL FAMILY LAW This page intentionally left blank International Family Law An Introduction BARBARA STARK Visiting Professor of Law, Hofstra Law School Professor of Law, University of Tennessee © Barbara Stark 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Barbara Stark has asserted her moral right under the Copyright, Designs and Patents Act, 1988, to be identified as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Gower House Suite 420 Croft Road 101 Cherry Street Aldershot Burlington, VT 05401-4405 Hants GU11 3HR USA England Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Stark, Barbara Kahn International family law : an introduction 1. Domestic relations (International law) I. Title 346'.015 Library of Congress Cataloging-in-Publication Data Stark, Barbara, 1952- International family law : an introduction / by Barbara Stark. p. cm. Includes index. ISBN 0-7546-2341-6 (hardcover : alk. paper) -- ISBN 0-7546-2347-5 (pbk. : alk. paper) 1. Domestic relations. 2. Conflict of laws--Domestic relations. 3. Legal polycentricity. I. Title. K670.S73 2005 346.01'5--dc22 2005007441 ISBN (Hbk) 0 7546 2341 6 ISBN (Pbk) 0 7546 2347 5 Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall. Contents Introduction: Why Study International Family Law? 1 1 Marriage 13 2 Partnerships Other Than Marriage 31 3 Adoption 53 4 Divorce/Marital Status 75 5 Divorce/Maintenance and Support 97 6 Divorce/Property Distribution 117 7 Reproductive Rights and Abortion 137 8 Visitation 159 9 Child Custody and Abduction 181 10 Child Support 205 11 Domestic Violen ce 227 12 Human Rights of the Family and Human Rights of Individuals within the Family 249 Index 269 This page intentionally left blank Introduction Why Study International Family Law? Why Study ‘International’ Family Law? This question contains three related but distinct questions, all of which pivot on the multiple meanings of ‘international’ in this context. First, why study international family law as opposed to domestic family law? Second, why study international family law as opposed to comparative family law? Third, why study international (i.e. private and public) family law rather than private family law? The answers to these questions explain the purpose, scope, and approach of this book. ‘International’ vs. ‘Domestic’ Family Law: The Importance of International Family Law The answer here is pragmatic. International Family Law (IFL) is an essential part of any Family Law curriculum, or any family lawyer’s library, because the practice of family law has in fact become globalized. Lawyers inevitably encounter clients whose family law problems extend beyond national boundaries, including problems in which the laws of more than one state must be taken into account. Lawyers everywhere are increasingly confronted with issues regarding international adoption, child abduction, divorce, custody and domestic violence, where the parties reside in, or are citizens of, different states. This is not surprising. As the United Nations notes, families are the primary unit of social organization, and families are changing, trying to adapt to new demands and taking advantage of new mobility. Globalization is transforming family law. Women are seeking asylum as refugees, fleeing domestic violence. Workers are following jobs, leaving their families behind and sometimes starting new families in their new countries. Child abduction has become an increasing threat as parents of different nationalities divorce, and both want their children to be raised in their own national traditions. Even as ties to such traditions become increasingly attenuated, their appeal may become stronger for some. Local religious leaders, similarly, may insist on even stricter adherence to local customs, especially those related to marriage, divorce, and the care and custody of children, as their authority is challenged by competing customs and international norms. In many States, such as Saudi Arabia, family law is basically left to religious authorities. This reflects both its relatively low importance to national governments (compared to matters of trade and finance, for example) and its 2 International Family Law paradoxically high importance to those who seek to shape the national identity. As Article 9 of the Basic Law of Saudi Arabia states, ‘the family is the kernel of Saudi society, and its members shall be brought up on the basis of Islamic faith.’ There are powerful trends and countertrends everywhere, and competing norms of family law are at the core of each. These play out in a range of contexts, such as the recognition of marriage, child custody jurisdiction, enforcement of foreign support awards, and adoptions, which already claim a significant amount of class time in family law courses and account for a similarly significant number of hours in family law practice. The extraterritorial expansion of family law poses new challenges, but the basic analytic framework remains the same. First, we identify procedures that do not mesh, distinguishing those that are better characterized as procedural from those that reflect more substantive differences in underlying policy. Second, we find or create mechanisms for reconciliation, where possible, or for the orderly resolution of disputes where reconciliation is not possible. While major issues in international family law, such as those addressed in the Hague Convention on Child Abduction, can be at least touched upon in a general course, growing numbers of students go on to specialize in family law. For these future lawyers, IFL is increasingly a necessity. In fact, the failure to anticipate international family law issues, such as the removal of children to another country during visitation, may well expose a lawyer to a malpractice claim. ‘International’ Family Law vs. ‘Comparative’ Family Law Second, why study ‘international family’ as opposed to ‘comparative’ family law? ‘International’ here refers to shared or agreed upon rules and norms among a group of States, while ‘comparative’ refers to the respective rules and norms applicable in two or more particular States. Comparative family law is an essential component of IFL. The ways in which different domestic legal systems address custody disputes or invalidate marriages must be understood in the practice of IFL. The study of comparative law is als o invaluable for gaining insight into other cultures and expanding horizons. Lawmakers increasingly look abroad for new approaches to intractable domestic problems. They must keep in mind, however, that legal norms do not operate in the abstract, but in specific cultural contexts. A particular reform, such as retroactive laws opening adoption records, might be functional because it is compatible with the underlying social norms in one context but not in another. Comparative family law requires lawyers to focus on the ways in which culture supports or undermines law. The comparative perspective not only provides a window into another culture, but exposes the often unquestioned assumptions of one’s own. Studying custodial presumptions in Islamic states, for example, exposes ways in which culture shapes such presumptions, which may not be as visible when dealing with the culture in which we are immersed. Thus, the comparative element of international family law enables law Introduction 3 students to gain a perspective on their own law. While comparative analysis is an integral part of IFL, the analytic and procedural processes which govern the interaction between national laws is the focus of this book. That is, the emphasis here is on the legal mechanisms devised by the international community to resolve or reconcile the different perspectives that a study of comparative family law reveals. ‘International’ Family Law vs. ‘Private’ International Family Law ‘Private’ international law historically referred to the rules regarding conflicts of law in disputes between private legal persons, including individuals or corporations. Public international law, in contrast, historically referred to the rules and norms governing disputes among nation States. As many commentators have observed, the distinction between public and private international law has steadily eroded. States increasingly engage in the same kinds of commercial activities as private entities. In addition, because of the growing influence of international human rights, the individual has increasingly become the subject of public international law. Historically, IFL has been regarded primarily as the province of private international law, requiring familiarity with conflicts of law principles in general and the conventions promulgated by the Hague Conference on Private Law in particular. Public international law plays an increasingly important role, however. Even as the Hague Conference studies the problem of transnational child support, for example, States enter into growing numbers of bilateral treaties addressing the issue. (See Chapter 10, section 7.) Such treaties are governed by public international law. International human rights law, moreover, has become an increasingly pervasive factor in international family law, from the refusal to recognize institutions such as polygamy (as a violation of human rights) to the recognition of reproductive rights. International human rights law also recognizes affirmative economic, social, and cultural rights, such as the right to maternal protection before and after the bir th of a child, which are explicitly identified as rights owed to the family as such. Finally, rights of individuals within the family, such as the child’s rights to freedom of religion, raise issues of State interference with family privacy. The State has an obligation to protect the child’s rights without violating the rights of the family unit. In sum, the erosion between public and private international law has been so thorough in the context of international family law that the subject can no longer be understood merely as a part of private international law. Rather, it requires a grasp of the applicable public international laws, especially human rights law, as well. Thus, this book addresses international family law, encompassing the principles of public as well as private international law.