agreements entered into in the Jewish or Muslim tradition. To the extent that these agreements provide for performance of a secular act, such as a financial payment, they can be enforced on the same terms as other marital agreements. If an agreement requires performance of an act that the civil court regards as religious, however, a court in the United States will refuse to enforce the provision on First Amendment grounds. If presented to the civil court for enforcement, marital agreements from religious legal systems are tested under the same rules that courts apply to other marital agreements.
(2) Determining Applicable Law 9 Looking around the world, there are wide variations in the financial entitlements that arise from a marriage. Attempts to harmonize these differences at the international level have met with only limited success. The 1978 Hague Convention on the Law Applicable to Matrimonial Regimes has been ratified in only a handful of countries and is not in effect in the United States. The United States has signed the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Maintenance Convention), which will mandate cross-border recognition of spousal and child support orders between participating countries when it comes into effect, but the United States does not plan to ratify the protocol to the Maintenance Convention addressing choice of law issues. The protocol is in effect in most member countries of the European Union, and a number of EU countries have agreed to a regime of \in divorce and separation matters.
10 Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located. This generates substantial complexity for couples who have lived and acquired property in more than one place, particularly if they have moved between common law and community property jurisdictions.
11 In the context of divorce, these traditional rules have been criticized as
37
\and contrary to the interests of the parties and the divorcing state,\which typically has the greatest concern with the spouses' financial circumstances after divorce.
12 In practice, courts in many states apply their own law to all marital property and support issues in divorce, particularly if neither spouse requests application of another law. In several community property states, this approach is mandated by statutes that provide for division of \community property,\defined as all property acquired outside the state that would have been community property if the spouse who acquired it had been domiciled in the state at the time it was acquired. In spousal support cases, section 303 of the Uniform Interstate Family Support Act (UIFSA), provides that a responding tribunal applies its own procedural and substantive law in making a determination as to the duty of support and the amount of support payable. The validity of a separation agreement entered into in another country is usually based on the law of the place where it was made.
Exercises
I. Write T (true) or F (false) for each statement of the following according to what you have learnt from the text:
1. In the context of divorce proceedings, state courts in the United States generally apply their own law to property and support questions with regard to where the couple may have lived during their marriage or where their property was acquired.
2. Because of the diverse approaches to marital contracts in different legal systems, it can be easy to predict whether and to what extent a marital agreement concluded in one country will be enforced in another.
3. Statutes in many civil law countries define a number of different marital property systems and allow couples to choose among these in a marital agreement.
4. If support rights are at issue, a court in the domicile or residence of the spouse seeking support has a particularly strong interest in addressing economic hardship that might result from a divorce.
38
5. Courts in the United States apply the same general principles to marital agreements entered into in the Jewish or Muslim tradition.
6. In practice, courts in all states apply their own law to all marital property and support issues in divorce, particularly if neither spouse requests application of another law.
7. The common law countries, including enforce marital agreements on terms generally similar to the United States.
8. The ordinary risks of ambiguity and omission are significantly increased when the agreement will move with a couple through different legal and financial systems. 9. The 1978 Hague Convention on the Law Applicable to Matrimonial Regimes has been ratified in only a handful of countries and is not in effect in the United States. 10. Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located.
II. Translate the following into Chinese:
1. Marital agreements in the civil law tradition are concluded with different formalities, usually by a notary, who is a lawyer specially trained to prepare and authenticate documents, such as wills, deeds, and certain types of contracts. Statutes in many civil law countries define a number of different marital property systems and allow couples to choose among these in a marital agreement. Courts in the United States usually recognize and enforce civil-law marital property contracts, even when these agreements establish a regime very different from the background rules of the forum state. There may be difficulties, however, when the foreign procedures do not meet the standards of state law for disclosure or voluntariness.
2. Traditional choice of law rules in the United States generally provide that the rights of a married couple in moveable property are governed by the law of their domicile at the time they acquired the property, while their rights in land are governed by the law of the place where the property is located. This generates substantial complexity for
39
couples who have lived and acquired property in more than one place, particularly if they have moved between common law and community property jurisdictions.
Section C
Recognizing and Enforcing Marital Property and Support Orders
1 State courts in the United States must extend full faith and credit to financial orders entered in other states, provided that the court had an appropriate basis for jurisdiction and the other requirements of due process were met. The same principles apply to international cases in which recognition is based on comity. In most states, marital property and support orders may be enforced in a new civil action, based on the foreign court judgment, in a court where it is possible for the judgment creditor to obtain jurisdiction over the judgment debtor or the debtor's property. The claim may be brought as an independent equitable action or raised as a counterclaim, cross-claim, or affirmative defense. In support cases, an enforcement action will often fall within the scope of the UIFSA. In property cases, a few states allow enforcement under the Uniform Foreign Money-Judgments Recognition Act (UFMJRA). In real property cases, other remedies may be available. (1) Extending Comity
2 State courts regularly recognize ex-parte foreign divorce decrees if one of the parties was a resident or domiciled in the foreign country where the divorce was ordered. Because U.S. law requires that a court have personal jurisdiction over both spouses to enter orders concerning property or support matters, financial aspects of an ex-parte foreign divorce will not be given effect based on comity. When a foreign court has exercised jurisdiction in factual circumstances that meet the requirements of U.S. law, the order should be recognized and enforced in state and federal courts. 3 Building on the Supreme Court's approach to comity in hilton v. guyot,
40