Should You Cite to Foreign Law in Family Law Cases?

posted by Judge_Burke @ 14:00 PM
September 30, 2013

There are a number of states that have banned judges from citing foreign law.  Some have advocated including such a ban in state constitutions, and others have threatened to not give full faith and credit to decisions based upon a foreign court decision.  So the safe way to avoid such problems, arguably, is not to mention a foreign decision.  But the New York Times reports a decision in Spain that cannot go unnoticed for those who are interested in family law:

The economic crisis in Spain has had the unintentional consequence of forcing warring couples who cannot afford divorces to remain together. Now, a judge in Seville has ordered a divorcing couple to split their 2,700-square-foot apartment down the middle.

The property belongs to the husband’s parents, but the judge ordered the man to bisect it to create two independent abodes, citing economic considerations and the well-being of the couple’s two daughters, ages 6 and 7, according to the written ruling released by the court this month.

Josep Maria Torres, a family law expert at Roca & Junyent, a leading law firm in Barcelona, said Friday that the ruling was highly unusual. “It is an extraordinary decision that could encourage other judges to seek similarly extreme solutions,” he said. “Spain’s economic crisis
has changed everything.”

The potential for awkward encounters between the couple in the stairwell presented “the lesser of two evils in view of the economic situation presented by both parties,” the judge wrote, referring to the couple’s complaint that the crisis had decimated their earnings. The couple were not available for comment.

In her ruling, the judge reasoned that since the husband’s parents had not taken any action against their daughter-in-law, it was evident that they did not want to expel her and her two daughters from the apartment.  She said that the husband had his offices downstairs from the apartment and that the proximity would benefit his daughters.

The ruling requires the husband to pay for the division. But it does not specify whether he must erect walls or can simply put tape across the floor, a penny-pinching solution that some splitting couples have tried. But this couple appeared to have means.


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