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Marriage and Divorce Conflicts in the International Perspective

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... In actuality, this aggravation is the same as the adverse repercussion of forum shopping. 2 Several analysts would deny that transnational disputes should be impartial and that the plaintiff's choice of venue should not interfere with this core goal. Professor Maloy contends that the characteristic differentiate the forum shopping from ordinary forum choosing is injustice. ...
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Forum shopping refers to the practice of choosing the most favorable jurisdiction or court in which a claim may be heard. Actors can often choose between several legal forums and prepare the platform they perceive as best to survive their interests. This paper is an overview of the concept and scope of legal forum shopping and how it helps the parties choose the forum that serves their interest in the best way. Furthermore, this research sheds light on the application of Talfiq by traditional Islamic scales and the practice of various religious institutions in the Muslim world. Primarily it discusses some significant cases that the courts have decided in Pakistan in the light of the Muslim Family Law Ordinance.
Article
Intercountry child abduction cases present a colossal challenge for the courts in determining courses of action. The Hague Convention on Civil Aspects of Child Abduction, 1980, provides for the mechanism of prompt “return of the child” to the “habitual residence”. The assumption is that the courts of habitual residence of the child are the best forum to promote the child’s best interests. “Welfare of the child” or “best interest of the child” are the guiding principles recognized by international law as the basis for child jurisprudence. However, India is not a signatory to the Hague Convention, which poses a significant challenge to applying orders of foreign courts relating to the custody and return of a child abducted to India. Considering the large diaspora and increasing cross border marriages, the issue of child abduction and the legal response in India assumes significance. Indian courts have devised their own term, “intimate contact”, as the connecting factor in lieu of “habitual residence” to address legal battles in intercountry child abduction cases. This article explores the Indian stance on intercountry child abduction. The article provides a critical analysis of the application of the principle of welfare of the child by the Indian judiciary in child abduction cases. Jurisprudence reveals that Indian courts have assessed the contours of the best interest of the child not just from the point of the habitual residence of the child, but considering the overall interest of the child. However, in the absence of a legislative framework, uncertainty prevails. The paper argues that there is a need for comprehensive legislation to address issues and challenges of intercountry child abduction cases, taking into account factors like “domestic violence”, child psychology, and other social factors pertinent for the determination of the best interest of the child.
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As divorces take place increasingly across national borders, many former partners find themselves in complex situations entangled in more than one state during which some categories of difference intersect, (re)creating inequalities and precarity. Through a socio‐legal perspective combined with transnational and intersectional approaches, the present study elucidates the link between these intersections and the legal aspects of divorce. Examining Filipino migrant women's divorces in transnational social spaces, it unveils that social class, gender, legal statuses, and filiation intersect in specific situations: when the legal problem arises or implicates communal properties in another country; when a family member residing abroad interferes in the divorce settlement; and when the divorce process occurs in the context of domestic violence and involves an institution espousing women's spatial mobility to protect them. In such situations, the social class differences between partners become particularly pronounced (rather than their supposed cultural differences) and intersect with other categories.
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It has been more than three decades since the international community attempted to address international parental child abduction through the 1980 Hague Abduction Convention. Despite this, the problem persists and, indeed, has been exacerbated by an increasing number of removals to countries that have not yet acceded to the Convention. One such non-signatory country is India, where the courts have applied the domestic law to treat wrongful removal disputes as custody disputes based on the criteria of the best interest of the child or the welfare of the child, in contrast to the return-based approach of the Convention. This research paper seeks to map Indian law in this area and critiques India's first attempt at accession to the Convention.
The Constitutionalisation of Party Autonomy in European Family Law); see also Patrick Wautelet, Party Autonomy in International Family Relationships: A Research Agenda Party Autonomy in International Family and Succession Law: New Tendencies
  • See Toni Marzal Yetano
  • J Priv
  • Int 'l L E
  • Jayme
See Toni Marzal Yetano, The Constitutionalisation of Party Autonomy in European Family Law, 6 J. PRIV. INT'L L. 155–93 (2010); see also Patrick Wautelet, Party Autonomy in International Family Relationships: A Research Agenda, in THE CITIZEN IN EUROPEAN PRIVATE LAW 17–43 (C. Cauffman & J. Smits eds., 2015); E. Jayme, Party Autonomy in International Family and Succession Law: New Tendencies, 11 Y.B. PRIV. INT'L L. 1 (2009). 33. For examples relating to the EU, see the EU Maintenance Regulation, Council Regulation (EC)
Loving v. Virginia, 388 U 147. 495 U International divorce cases upholding tag jurisdiction include MacLeod v. MacLeod, 383 A.2d 39, 43 (Me. 1978), and Vazifdar v. Vazifdar, 547 A
See Obergefell v. Hodges, 576 U.S. ___ (2015); Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967). 147. 495 U.S. 604 (1990). International divorce cases upholding tag jurisdiction include MacLeod v. MacLeod, 383 A.2d 39, 43 (Me. 1978), and Vazifdar v. Vazifdar, 547 A.2d 249, 251–52 (N.H. 1988). 148. E.g., Oytan v. David-Oytan, 288 P.3d 57, 66–68 (Wash. Ct. App. 2012).
App. 1981) (allowing husband in military service to obtain divorce in state from which he entered service; ruling that court has no personal jurisdiction over wife who never lived in a marital relationship in the state)
  • Perry V Perry
E.g., Perry v. Perry, 623 P.2d 513, 515-16 (Kan. Ct. App. 1981) (allowing husband in military service to obtain divorce in state from which he entered service; ruling that court has no personal jurisdiction over wife who never lived in a marital relationship in the state).
) (noting that this result might not be proper in an " ordinary divorce case " ); see also Ex parte Brislawn, 443 So
  • Sherlock V Sherlock
E.g., Sherlock v. Sherlock, 545 S.E.2d 757, 762 (N.C. Ct. App. 2001) (noting that this result might not be proper in an " ordinary divorce case " ); see also Ex parte Brislawn, 443 So.2d 32, 34 (Ala.
); cf. Forrest v. Forrest, 839 So
  • Goodenbour V Goodenbour
Goodenbour v. Goodenbour, 64 S.W.3d 69, 76–81 (Tex. App. Austin 2001); cf. Forrest v. Forrest, 839 So.2d 839, 840–41 (Fla. Dist. Ct. App. 4th Dist. 2003) (explaining that opening bank account and purchasing home during one-week visit to state not sufficient to establish matrimonial domicile). 151. See supra Part III(A).
  • Code Ann
MD. CODE ANN., FAM. L. § § 8-212, 11-105 (LexisNexis 2017); MASS. GEN. LAWS ch. 208 § 34 (2017); N.J. STAT.
Pawley, 46 So.2d 464 (Fla. 1950) (holding that Cuban divorce did not preclude subsequent action for support)
  • E G Pawley V
E.g., Pawley v. Pawley, 46 So.2d 464 (Fla. 1950) (holding that Cuban divorce did not preclude subsequent action for support); In re Marriage of Lasota, 17 N.E.3d 690 (Ill. App. Ct. 2014) (allowing support action following Polish divorce);
Div. 1990) (allowing property division action following divorce in England). 155. Matrimonial and Family Proceedings Act
  • Nikrooz V Nikrooz
Nikrooz v. Nikrooz, 561 N.Y.S.2d 301 (N.Y. App. Div. 1990) (allowing property division action following divorce in England). 155. Matrimonial and Family Proceedings Act 1984, Part III (Eng) (1984). See LOWE & DOUGLAS, supra note 138. 168. Id. at art. 4.
); cf. Dart v. Dart, 597 N
  • E G See
  • Leitch V
  • Leitch
See, e.g., Leitch v. Leitch, 382 N.W.2d 448, 450–51 (Iowa 1986); cf. Dart v. Dart, 597 N.W.2d 82 (Mich. 1999).
  • Deganay V Deganay
DeGanay v. DeGanay, 689 N.Y.S.2d 501, 502–03 (N.Y. App. Div. 1999).
UKSC 42; see also generally MARITAL AGREEMENTS, supra note 140. 195. See generally ESTIN, supra note 1, at 82–83; see also Rosettenstein, supra note 126. 196. E.g., Gustafson v. Jensen, 515 So
  • See Radmacher V
  • Granatino
See Radmacher v. Granatino, [2010] UKSC 42; see also generally MARITAL AGREEMENTS, supra note 140. 195. See generally ESTIN, supra note 1, at 82–83; see also Rosettenstein, supra note 126. 196. E.g., Gustafson v. Jensen, 515 So.2d 1298, 1300-01 (Fla. Dist. Ct. App. 1987) (finding Danish agreement abandoned after parties moved to Florida);
  • E G Abernathy V
  • Abernathy
E.g., Abernathy v. Abernathy, 482 S.E.2d 265, 268-69 (Ga. 1997);
  • Mccasland V Mccasland
McCasland v. McCasland, 497 N.E.2d 696, 697 (N.Y. 1986);
1999); see also generally Marshall v. Marshall, 988 So
  • Weller
Weller, 988 P.2d 921, 926-27 (Or. Ct. App. 1999); see also generally Marshall v. Marshall, 988 So.2d 644 (Fla. Dist. Ct. App. 2008) (hearing partition action regarding real property located within the state).
  • E G Oytan V
  • David-Oytan
E.g., Oytan v. David-Oytan, 288 P.3d 57, 66-68 (Wash. Ct. App. 2012).
1950) (holding that Cuban divorce did not preclude subsequent action for support)
  • E G Pawley V
  • Pawley
E.g., Pawley v. Pawley, 46 So.2d 464 (Fla. 1950) (holding that Cuban divorce did not preclude subsequent action for support);
Marriage of Lohman, 361 P.3d 1110
E.g., Marriage of Lohman, 361 P.3d 1110, 1115-17 (Colo. Ct. App. 2015);
UKSC 42; see also generally MARITAL AGREEMENTS, supra note 140. 195. See generally ESTIN, supra note 1, at 82-83; see also Rosettenstein
  • See Radmacher V
  • Granatino
See Radmacher v. Granatino, [2010] UKSC 42; see also generally MARITAL AGREEMENTS, supra note 140. 195. See generally ESTIN, supra note 1, at 82-83; see also Rosettenstein, supra note 126.
App. 1988) (finding German postnuptial agreement abandoned by comingling of assets after move to Wisconsin); see also ESTIN, supra note 1
  • Wis
  • Ct
Brandt v. Brandt, 427 N.W.2d 126, 134 (Wis. Ct. App. 1988) (finding German postnuptial agreement abandoned by comingling of assets after move to Wisconsin); see also ESTIN, supra note 1, at 103 n.45. 197. Note that the United Kingdom, which allows a very high level of party autonomy in the commercial setting, does not allow enforcement of prenuptial agreements.