Japan to sign the Hague Convention

International child abduction is an issue which often generates significant media attention and is often an issue about which parents are especially concerned in the context of a relationship breakdown. The Family Law Act contains a section which provides that once a Court has made a Parenting Order that neither parent can take a child who is named in the order overseas without the permission of the other parent. For that reason many Orders that are made by consent contain clauses which give that permission in advance. Frequently those clauses will specify that permission is only given for travel to, and via, countries which are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. This is an international treaty which puts in place a system for dealing with cases of International Child Abduction, and where appropriate securing the return of the child.

The question of which countries have signed that convention therefore frequently becomes very significant. Many Qantas flights to Europe now transit via Dubai and it is worth being aware that the United Arab Emirates is not a signatory to the Hague Convention.

Another country that is not currently a signatory, which may surprise some people, is Japan. The Japanese Family Law system is somewhat different to the system in Australia, with most Court Orders in Japan providing that children live with their mothers in the event of a marriage breakdown and with joint custody not a well recognised concept. The Japanese Parliament is in the process of passing Legislation to approve the Hague Convention and it is expected that Japan will become a signatory to the Hague Convention sometime in 2014.

Once Japan becomes a signatory to the Hague Convention, anyone with a Parenting Order with a clause permitting travel only to Hague Convention signatory countries will be able to add Japan to their list of potential destinations.

Divorce all around the world

Different developments in Divorce and Family Law around the world serve to highlight different attitudes to these sensitive questions. Sometimes the legal position that we take for granted in Australia is surprisingly different in other countries around the world. In Australia we have had no fault divorce laws for many decades and that position has not come under any serious or prolonged scrutiny or criticism. Many people are surprised to learn that this is not the position in England and Wales where it is still necessary to allege fault on the part of one spouse in order to obtain a divorce, or to wait 2 years and then an Application is possible if both parties consent. However this can be impractical for many people because in England and Wales an Application for Property Settlement is not possible until an Application for Divorce has been commenced.

All 50 states in the USA currently have no fault divorce legislation, and most of them have had that in place for many decades. It seems that in contrast to Australia that there is some appetite for change in that position, and there is currently proposed legislation before the Legislature in Iowa that would end no fault divorce in situations where people have children under the age of 18 and would require anyone seeking a divorce to allege fault. The fault to be alleged would be one of Adultery, physical or sexual abuse, imprisonment, if one spouse is missing for more than one year or if the couple have lived apart for more than 2 years.  The supporters of the Legislation apparently promote it on the basis that it would serve to reduce the incidents of divorce in families of minor children.