UNIT TWO法律英语.doc

UNIT TWOINTERNATIONAL DIVOICE: LITIGATINGMARITAL PROPERTY AND SUPPORT RIGHTSSection A Jurisdiction and Procedure in International Divorce Litigation 1 Jurisdiction for divorce or separation proceedings in the United States is based on residence or domicile. A court in the state where a petitioner is resident or domiciled may enter an ex-parte divorce decree, even if it has no basis for exercising personal jurisdiction over the respondent. The court must have full personal jurisdiction over both parties, however, to enter orders concerning spousal support and marital property division. Subject matter jurisdiction over divorce and its financial incidents is conferred by state statutes.2 Under this rule of divisible divorce jurisdiction, an ex-parte divorce decree based on the petitioners domicile or residence within the forum state is entitled to full faith and credit in every state. Court orders concerning marital property and support rights are not entitled to full faith and credit, however, unless the forum court had personal jurisdiction over the respondent. Based on the same policies, courts in the United States give effect to many foreign ex-parte divorce decrees as a matter of comity, but do not recognize and enforce financial orders entered by a foreign court unless that court had full personal jurisdiction.3 Courts have several means of acquiring personal jurisdiction over the parties to a divorce or separation action. By filing an action with a court, the petitioner submits to the courts personal jurisdiction. The court may obtain personal jurisdiction over a respondent based on his or her residence or domicile within the state. For jurisdictional purposes, courts construe residence and domicile generously in this context, extending their authority to individuals who live only part-time within the state. A court may also exercise personal jurisdiction based on a respondents general appearance in a proceeding, and a respondent who files a responsive pleading without objecting to jurisdiction is typically deemed to have waived any of these defenses.4 More controversially, a state court may exercise personal jurisdiction over a respondent who is personally served with process within the forum state. The leading case on this type of tag jurisdiction is Burnham v. Superior Court of California, which upheld Californias exercise of personal jurisdiction over a defendant in a child support case based only on the fact that he had been served with process while present in the state. Before relying on Burnham-type service to confer personal jurisdiction on the court, counsel should be aware that foreign jurisdictions may refuse to enforce a decree entered on this basis, as tag jurisdiction is widely rejected outside the United States.5 Beyond the question of jurisdiction, due process requires that a respondent must be afforded notice and an opportunity for a hearing, even in the context of an ex-parte divorce. The same rule applies in international cases. If a state court has a basis for long-arm jurisdiction over a respondent, state law may authorize personal service on that respondent outside the jurisdiction. The question of whether substituted service is permitted is determined by the law of the forum, but the means utilized must also comply with the laws of the country in which service is made.6 Because of the tradition of treating divorce actions as a type of in-rem proceeding, some forms of substituted service are permitted under state law when the respondent cannot be located or served using conventional techniques. In hollow v. hollow, the court approved service by e-mail in a divorce action in which the husband had relocated from New York to Saudi Arabia. Finding that the wife had made reasonable, though unsuccessful, efforts to effect service through an international process server and husbands employer, the court concluded that those methods were impracticable under the New York rule and that substituted service by e-mail would be the best means of providing the husband with notice of the proceedings. 7 Service of process on an individual in a foreign country is subject to the law of the state where the action has been filed and any applicable provisions of foreign or international law. The United States has ratified the Hague Service Convention, and adherence to the convention is mandatory for service of process in civil proceedings-including family law matters-in any of more than sixty countries in which it is in force. Under the convention, each contracting state designates a central authority to receive incoming requests for service of documents. The U.S. Central Authority is the Office of International Judicial Assistance in the Department of Justice, and outgoing requests are managed by a contractor acting on behalf of the central authority.8 As a treaty, the convention preempts inconsistent provisions of state law, and service in treaty countries that does not comply with the convention is ineffective, even if the respondent had actual notice of the proceeding. A party who fails to raise objections to service in a timely manner may be deemed to have waived them, however. Foreign defendants who are present within the territory of the United States may be served with process here, provided that service complies with the applicable procedural rules of the forum. Note also that service under the service convention does not confer personal jurisdiction in state court over a respondent who does not have the requisite minimum contacts with the state.9 The United States has a treaty relationship with another group of countries under the Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP), which also provides a mechanism for service of documents through a central authority. If the Hague Service Convention or the Inter-American Convention are not available, service by letters rogatory may be required. Outgoing letters rogatory are typically drafted by counsel and signed by a judge. Depending on the country to which they will be sent, the letters must be authenticated and translated, and then submitted to the secretary of state for transmittal through diplomatic channels. Depending on the law of the other country involved, it may be possible to transmit the letter through local legal counsel. Note that service of process on a member of the U.S. armed services who is stationed abroad may be facilitated by military authorities.10 Foreign countries base jurisdiction for divorce on connecting factors, including residence or domicile and, in some countries, the nationality of the parties to the marriage. As a result, there are a variety of circumstances in which foreign citizens residing in the United States and U.S. citizens living in a foreign country may find themselves defending divorce proceedings abroad. In Canada, the federal Divorce Act confers jurisdiction to grant a divorce on the court of a province where either spouse has been ordinarily resident for at least a year prior to commencing proceedings. Marital property matters are governed by provincial or territorial law. In Mexico, divorce jurisdiction is based on domicile. Within the European Union (EU), divorce jurisdiction is defined by the Brussels IIA Regulation, also known as Brussels II bis or Brussels II Revised. Under Brussels IIA, courts can exercise jurisdiction in divorce, legal separation, or marriage annulment proceedings based on the spouses habitual residence, or based on the spouses joint nationality or domicile.11 In contrast with the divisible divorce rule in the United States, many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to address the couples property and support rights. From the perspective of courts in the United States, financial orders that satisfied jurisdictional rules in the country where they were entered, but which were not based on facts that would give rise to personal jurisdiction over the respondent spouse, would not satisfy the due process requirements for recognition and enforcement in the United States.12 In situations in which more than one country within the European Union could assert divorce jurisdiction, Brussels IIA gives a strict priority to the first 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 property consequences of the marriage or any other 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 enhanced cooperation, which coordinates the choice of law in divorce and legal separation cases, giving priority to application of the law of the couples 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 TermsPetitioner 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divisible divorce 可分割性离婚原则lis pendens （拉）未决诉讼Notes1. subject matter jurisdiction:诉讼标的管辖权；事物管辖权。指法院审理和裁决某一类案件的权限范围。如在美国对不同州籍公民间民事争议的管辖权、联邦问题管辖权、对海事和破产案件的管辖权等都属于联邦法院的事物管辖权。该管辖权通常由制定法予以规定。2. rule of divisible divorce jurisdiction：可分割性离婚原则 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 judges 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.3. long-arm jurisdiction: 长臂管辖权Long-arm jurisdiction refers to the ability of local courts to exercise jurisdiction over foreign (foreign meaning out of jurisdiction, whether a state, province, or nation) defendants, whether on a statutory basis or through a courts inherent jurisdiction (depending on the jurisdiction). This jurisdiction permits a court to hear a case against a defendant and enter a binding judgment against a defendant residing outside the jurisdiction concerned.4.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 under which 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. 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.”5. in-rem proceeding: 反对诉讼程序 When something is in rem it is a legal action, like a lawsuit, that applies particularly 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 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 courts decision. In rem can be translated as against the thing as opposed to action against the person.6. Hague Service Convention: 海牙送达公约 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.7. Inter-American Convention on Letters Rogatory and Its Additional Protocol (IACAP) 泛美司法协助函公约及其议定书 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.8. Brussels IIA Regulation布鲁塞尔公约及2201/2003 规则 （关于婚姻案件和亲子责任案件管辖权及判决承认与执行规则） (EC) No 2201/2003, 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 matters of parental responsibility for joint children. The regulation does not apply to Denmark.ExercisesI. 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. house2. 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. personal3. 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 law4. Many foreign countries do not distinguish between the jurisdiction required for a divorce or separation decree and the jurisdiction necessary to _ the couples property and support rights.A. address B. protect C. manage D. cope with5. The United States has a treaty relationship with another group of countries under the_, which also provides a mechanism for service of documents through a central authority.A. AICAP B. IACAPA C. LACAP D. IACAP III. Fill in the following blanks with the given words below:jurisdiction, forum , hearing , tag jurisdiction, divisible divorce, matter, respondent, personal jurisdiction, lis pendens, divorce .1. Upon receipt of a copy of the arbitration application, the _ shall, within the time limit prescribed by the Arbitration Rules, submit its defense to the arbitration commission2. Sometimes a _ is referred to as a bifurcated divorce.3. Beyond the question of jurisdiction, due process requires that a respondent must be afforded notice and an opportunity for a_.4. If a man and woman _or if one of them divorces the other, their marriage is legally ended.5. Foreign defendants who are present within the territory of the United States may be served with process here, provided that service complies with the applicable procedural rules of the_.6. The jurisdiction based on service of process on a person only transitorily in the territory of the state is called _ . 7. Finally, it adopts a new institution of _ to strengthen the harmonization of jurisdiction conflicts8. In Mexico, divorce_ is based on domicile.9. Subject _ jurisdiction over divorce and its financial incidents is conferred by state statutes.10. In Internet-related cases, the confirmation of the _ that is based on nationality basis encounters obstacles.IV. Translate the following passage into Chinese:Under this rule of divisible divorce jurisdiction, an ex-parte divorce decree based on the petitioners domicile or residence wi