jurisdiction in which proceedings are filed, based on a lis pendens principle. This rule prevents the problem of parallel and competing divorce litigation, but it is often criticized for encouraging forum shopping and a race to the courthouse. Although Brussels IIA does not apply to \ancillary measures,\European courts with jurisdiction to enter a divorce routinely address financial matters in the same proceeding. Because there are major differences between the property and support laws of the EU member countries, the jurisdictional race under Brussels IIA can have very significant financial consequences. As a result, individual parties and their lawyers have an incentive to act strategically and to file immediately when problems develop within a marriage.
13 Within the European Union, a group of countries have moved toward a system of \legal separation cases, giving priority to application of the law of the couple's habitual residence prior to separation. This system should help to reduce the jurisdictional race in participating countries, but a significant group of EU member countries, including the United Kingdom, have opted out of the enhanced cooperation regulation.
New Words and Proper Terms
Petitioner n. (英)离婚案原告
Ex-parte （拉）单方面的，只代表一方的 jurisdiction n. 司法权，审判权，管辖权 decree n. 法令；判决 ratify vt. 批准；认可
personal jurisdiction n. 属人管辖权 respondent n. 被告；应答者 construe vt. 分析；解释 hearing n. 审讯，听讯 mandatory adj. 强制的；托管的 Department of Justice (美国)司法部
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divisible divorce 可分割性离婚原则 lis pendens （拉）未决诉讼
Notes
1. In a divisible divorce, a marriage is terminated, while other issues, normally settled during a divorce, remain unsettled. When a couple seeks a divorce, any claims for alimony, child custody and visitation, child support, and the division of property are usually decided either by agreement of the parties involved or by a judge's ruling. By contrast, these and any other pertinent issues may be decided after the divorce is final in a divisible divorce. Sometimes a divisible divorce is referred to as a bifurcated divorce.
2.tag jurisdiction: 接触的管辖权
Much of the analysis in court decisions on the basis for jurisdiction over parties not resident in the United States has been on the extent to which they have business contacts with the jurisdiction. This focus on ―long-arm‖ jurisdiction and its concern with fairness overlooks another concept underwhich jurisdiction may be obtained: service of a summons on a person who is physically present in the jurisdiction but who otherwise has no contacts with it. Is this type of jurisdiction—known as transitory or ―tag‖ jurisdiction—alive and well in international cases, in which extraterritorial jurisdiction has frequently been based on elaborate balancing tests? Until recently, the answer to this question might well have been,―Probably not.‖ For example, in Schaffer v. Heitner, the Supreme Courtstated, ― . . . all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.‖ The Restatement (Third) of Foreign Relations Law of the United States states: ―Tag jurisdiction, i.e. jurisdiction based on service of process on a person only transitorily in the territory of the state, is not generally acceptable under international law.‖ 3. in-rem proceeding 反对诉讼程序
When something is \to a property. In other words, in rem means that the suit is directed solely against a property instead of a person, and when the court makes its decision it makes it
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regarding the property itself and laws concerning property, regardless of who owns it. In this case, the rights of the property in terms of its physical position and land laws become important. Owner interests do not affect the court's decision. In rem can be translated as \4. Hague Service Convention,
The Hague Service Convention provides for service of process by a Central Authority (usually the Ministry of Justice) in the Convention countries pursuant to a request submitted on a form USM-94, available at the office of any United States Marshal. The text of the treaty is self-explanatory, but see the reservations and declarations each country made on accession to the treaty. Some countries made specific reservations against particular methods of service. The Convention method should be employed in all countries party to it.
5. Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP)
The Inter-American Convention on Letters Rogatory and Additional Protocol (IACAP) are a pair of international agreements designed to facilitate judicial assistance between countries. The United States interprets those agreements as limited to covering service of process and countries must be a party to both agreements in order for a treaty relationship to exist. Replacing the traditional letters rogatory process, the IACAP provides a mechanism for service of documents by a foreign central authority. The Department of Justice is the U.S. Central Authority under the IACAP. Requests from the United States are transmitted via a private contractor carrying out the service functions of the U.S. Central Authority on behalf of the Department of Justice. 6. Brussels IIA Regulation
(EC) No 2201/2003,[1] also called Brussels IIA or II bis is a European Union Regulation on conflict of law issues in family law between member states; in particular those related to divorce, child custody and international child abduction. It replaces Convention Council Regulation (EC) No 1347/2000 of 29 May 2000 on the jurisdiction, recognition and enforcement of judgments in matrimonial matters and in
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matters of parental responsibility for joint children. The regulation does not apply to Denmark.
Exercises
I. Questions for discussion:
1. What are the differences between personal jurisdiction and Subject matter jurisdiction?
2. What are the means of courts to acquire personal jurisdiction over the parties to a divorce or separation action?
3. Can you take an example to state that e-mail can be adopted as a service in a divorce action?
4. How can the Hague Service Convention be implemented in USA?
5. What are differences in divorce jurisdictions among Canada, Mexico and EU? II. Choose the best answer for each of the following according to the text: 1. Jurisdiction for divorce or separation proceedings in the United States is based on _____or domicile.
A. citizen B. residence C. address D. house
2. If a state court has a basis for ____ jurisdiction over a respondent, state law may authorize personal service on that respondent outside the jurisdiction. A. short B. long-term C. long-arm D. personal
3. Service of process on an individual in a foreign country is subject to both the law of the state where the action has been filed and any applicable provisions of foreign or_______.
A. international law B. domestic law C. civil law D. marriage law
4. Many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to _____ the couple's property and support rights.
A. address B. protect C. manage D. cope with
5. The United States has a treaty relationship with another group of countries under
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