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According to yesterday’s Cambodia Daily (“Gov’t to Restart National Adoptions,” offline only), foreigners will once again be allowed to adopt Cambodian children beginning in January 2013. Though the Law on Adoption was issued in 2009 as a result of widespread international criticism of abuses occurring in the Cambodian adoption system, the implementing regulations needed to put this law into practice have not yet been issued by the Ministry of Social Affairs, the ministry responsible for carrying out the law.
While this development is a positive sign that international adoptions may soon be permitted again in the Kingdom of Cambodia, would-be parents should temper their enthusiasm with caution and patience. Since 2009, there have been several dates announced for the revival of the international adoption process in Cambodia. Further, it remains to be seen how the US and other nations that have implemented bans on adoptions from Cambodia will react to the new policies and procedures. Even if Cambodia permits international adoptions, if the adoptive parents’ home countries fail to recognize the validity of the Cambodian adoption process, those parents and their adopted children may face years in legal limbo. Cautious optimism is the best attitude toward the recent announcement until more concrete policies and procedures are unveiled here and abroad.
The Foreign Ministry recently placed financial and age restrictions on foreign men marrying Cambodian women. According to a diplomatic note sent to foreign embassies, only men making more than $2,550 a month and younger than 50 years old can marry Cambodian women.
Leaving aside the substantive policy questions (why prohibit two 60-year-olds from marrying? or a man with a wealth of assets but little income?), today’s Cambodia Daily reports on possible procedural problems with how this rule has been enacted. The Marriage Law does not spell out any such restrictions, so the question is whether the Foreign Ministry can amend the law through a diplomatic note.
This latest measure is part of ongoing efforts to address abusive practices by some foreign marriage agencies, I don’t suspect we’ve seen the last of this matter. Stay tuned.
Divorce is most often a sad and unfortunate event in one’s life. So it’s often difficult for spouses-to-be to imagine even before their wedding day that their marriage might end in divorce. Nevertheless, many couples choose to enter into a premarital, or prenuptial, agreement. Without one, the couple is in effect agreeing to the default rules provided by the marriage and property laws. These default rules can work fine for many couples, but sometimes modifications are a sensible idea.
Premarital agreements exist in a gray area of Cambodian law. They are neither specifically recognized nor specifically prohibited. Should it come to a divorce proceeding, a court would be more likely to follow the terms of a premarital agreement if it was entered into freely and fairly, and the financial terms are fair to both spouses, given their respective finances.
Despite this uncertainty, a premarital agreement may still be of value to a couple for a variety of reasons:
- It can serve to manage expectations. Particularly where one spouse has – or is perceived to have – much greater assets than the other, both spouses could be entering into marriage with unrealistic expectations
- Spouses can protect or share their assets through identification of separate and joint assets.
- It can define alimony or child support payments in case of divorce, as well as any support payments to a spouse’s family during the marriage.
- It can help to simplify the process of divorce, should it occur.
Furthermore, it can be very helpful for each spouse to list their separate assets at the time of marriage. Cambodia has a joint property system for marital property, similar to that of many countries. Any income and property earned during the marriage is considered joint property, whereas everything earned prior to marriage or through gift or inheritance, is the spouse’s separate property. A pre-marital agreement can therefore also be a useful tool whereby each party acknowledges the status of their assets at the time of the marriage.
One important implication of this rules is that any property obtained during marriage with separate property will remain separate property. So for instance, if a spouse uses money in a bank account earned prior to marriage to buy a house during marriage, the house will remain separate property. Likewise, the interests and profits from separate property remain separate.
Should the couple eventually divorce, the premarital agreement can serve as a foundation on which to negotiate. While there is a chance the premarital agreement may not be enforced, it could still serve as a common basis for reconciliation and the division of assets.
So you find out that you have a rich uncle, who has sadly passed away, and has left you a large tract of land, in Cambodia. Given the recent real estate boom in the Kingdom, this would surely be welcome news (minus the news of your uncle).
Or is it?
As you begin researching Cambodian law governing testamentary gifts (wills), succession, and land, you soon realize that, as a foreigner, you are not permitted to own land in Cambodia.
So what will happen to the land that your uncle so thoughtfully left to you? According to the newly drafted Civil Code, which is set to take effect later this year, a foreigner who has been named a successor or co-successor to an estate, either by relations or will, has three months to sell the land, with the proceeds becoming the succession property. It will be important to observe the three-month timeframe to sell the land; otherwise the land will pass to the next available heir in succession who holds Cambodian nationality.
There are, of course, ways to sell the land and still maintain some control of it, namely selling it to a corporation of which you hold 49% and a Cambodian national holding 51%. However, if you don’t want to keep the land, be sure to sell it as quickly as possible, or risk forfeiting the gift from your favorite uncle.
Important changes to the family laws are in the works, particularly if you’re a foreigner intending to marry a Cambodian. The April 27th Cambodia Daily (offline only) has two articles on the matter– one reporting on a draft Family Dispute Law, and another on new rules on marriages between locals and foreigners.
First, the Family Dispute Law was passed unanimously by the National Assembly on Monday, and now goes to the Senate for approval and the King for signature before becoming law. The law sets forth new procedures for divorces, child-support, alimony, and other family matters. Though I haven’t read the law myself, together with the new Civil Code, it should fill in quite a few gaps in the present law.
In a related development, a Foreign Ministry official announced new regulations for marriages between Cambodians and foreigners. While the regulations are described as “confidential”, the article reports that both husband and bride will need to be physically present through all stages of the marriage process. This new rule seems to be in response to the recent fiasco involving Korean marriage brokers and human trafficking violations.