Pirates, Piracy and the Law

I. Introduction

The study of the history of Piracy and Pirates can be studied from the viewpoint of many vocations; including, technological, sociopolitical, or criminological. However piracy and pirates can also be look at through a legal perspective. The relevance of study piracy from the prism is best illustrated by consider what piracy and pirates are. Piracy was a crime, a violation of the law. Pirates are a class of criminals whose primary crime was piracy.

As piracy is a crime their must be in existence specific laws on the subject. Like all criminal laws the laws regarding piracy serve to define what actions or combination of action or omissions would constitute piracy. Like all laws the laws relating to piracy have a source. The Source for laws includes custom, statue and treaties. The law also provides for finality. Laws sometimes have exceptions the exception to the general law om piracy is privateering. Finally the law of piracy provides procedures for the prosecutes pirates and for the alleged pirate to defend against those charges.

II. Law of Piracy and its sources.

Regarding the law defining piracy; Their are many laws on piracy however it is possible assemble a definition of piracy. An individual is guilty of piracy if he disposes and “carries away” or attempts to dispossess and carry away another’s vessel its cargo or passengers property on this said vessel; or be the commander or member of crew of a ship used as platform for the completed or attempted act of piracy. All the aforementioned conduct will unless the crew conducting the piratical act is acting under and according to a letter of marque or otherwise functioning as a state apparatus. Furthermore for one to be guilty of piracy the piratical act must take place in international waters which exists at least 3 miles from the coast of the mainland. The law banning piracy would not limit it self to people engaging in traditional acts of piracy; the law also classifies people knowingly helping or involving themselves with pirates as pirates themselves. The type of help or involvement classified as piracy include conspiring with the pirates, financing the pirates, procuring items to be used by pirates, holding stolen goods for them, advising them, directing from shore giving them equipment or helping them recruit etc.

The sources of these laws banning piracy varied. Like all law much of the laws banning piracy were customary law or international customary law. Customary law is created overtime based on a significant number of people or entities engaging in or not engaging an activity based on a belief of a legal duty or legal right. During the age of discovery and latter countries such as England began to use statues as a tool against piracy. These early statues such as the offenses at Sea act of 1535 and the Piracy act of 1698 stated that piracy was illegal and the procedure to be used in Piracy cases. However, in England, these statues did not completely overthrow the customary law regime. These statues such as the Piracy Acts of 1698, and 1717 usually did not generally define piracy and allowed the question of what activities constituted piracy to be answered by customary law. In terms defining what acts constituted piracy the early statues only described specific acts as piracy if those act would not be considered piracy under customary law. As such any description of acts constituting piracy was not a codification of preexisting customary law but an expansion on what activities where defined as piracy. The statues therefore served as a legal tool for governments to treat select maritime crimes with gravity and penalties of piracy. Examples of this practice are included in the 1698 and 1744 Piracy acts and piracy statue expanded customary definition of piracy to include the traitorous act of its citizens serving on an enemy privateer as piracy if English ships are targeted for attack. Also in 1698 the British government revised the law piracy to include Captains and Crew of Ships who voluntarily turn over their vessels to be used by pirates. The enlargement of numbers of acts statutorily classified as piracy continued into the 19th century. In 1824 the British Parliament would follow the United States Congress in expanding the legal definition of piracy to include the oceanic transportation of people to be used as slaves. Not with standing the British parliaments broadening of the definition of piracy, prior to 1997 British statue did not generally define what acts constitute piracy. In its 1997 Maritime security act wrote verbatim the United Nations convention the law of the sea. Latter treaty would ban piracy.

III. Privateering

Of course no discussion of piracy would be complete without discussing the legal form of piracy known as privateering. Privateering involved the state granting private merchant mariner’s licenses know as letters of marque legally entitling the licensed mariner to rob ships of an enemies and pirates. By operating under and within the scope of the letter marque an act which would nominally be classified as piracy would not be legally definable as piracy. A liscensed privateer was immune from a charge of piracy not only from the country who issued the license but from all other nations including the nation whose shipping was attacked by the privateer. Customary international law of the time demanded that other nations give a letter of marque full faith and credit and not consider its holder a pirate. Customary international law defined privateers as legal members of his countries service engaging in a legal military operation. As a member of his countries service he was immune from criminal charges for killing done in pursuit of privateering, and if captured had to be granted prisoner of war status. Not with standing its legal status, was very much like piracy. The privateers where motivated by profit. After paying the State a share of the prize they could keep the rest.

The institution of privateering gave all involved including the captains, the crew, and owners of privateering ships a huge legal and financial windfall. In exchange for these amenities privateers where bound to rules. To begin with, their status as a privateer was dependent of the holding of a letter of marque licensing acts which would otherwise be piracy. The letter of Marque while addressed to the present Captain is not held by the present captain as an individual. The rights granted by letter instead vested in the office of the captain of the ship that was intended to be used as the privateering vessel; the individual captain exercised those rights as an office holder. As such, if the ship changes commands the rights and restricts set in letter would remain held by the office of captain and exercised by the new captain. Only a state party authorized party could issue a letter of marque. The process as well the official with the right to grant such a license varied depending on the nation. In Great Britain the right to issue a letter marque was nominally vested in the lord high admiral the head of the British Admiralty who issued these licenses in the name of King. In most of the American and Caribbean Colonies the Lord Admiral usually deputized a local official, usually the Colonies Governor, as the Colonies Admiral or vice Admiral with the power to handle local maritime matters including the issuance of letters marque. . By allowing locals colonial governors the power to issue letters of marques the process was decentralized. When hostiles broke out between the various empires British colonial governors could rapidly commission large numbers of privateers to target the military and economic assets of its enemies. The privateers who the British Colonial governors licensed included notoriously brutal men such as Roche Braziliano and Henry Morgan; these men often targeted non combatants with especially cruel forms murder and torture as means to terrorize their victims into surrendering their wealth. However in spite of their cruelty these privateers where extremely effective they destroyed or stole much of Spain’s colonial wealth recaptured colonies and helped insure British dominance. The decentralized process involved in issuing letters marque allowed the British government to deny responsibility for the actions of the privateers while reaping rewards of her way ward privateers. If the British Government received foreign protests they could simply state it’s in ability micromanage its governors located thousands of miles away. If an individual privateer committed an atrocity the British government sometimes would completely deny responsible and say as far they know privateer is acting without a letter marque. In analyzing the process of the issuing of letters of Marque was extremely lax. Many of the people who where issued letters of Marque abused their privileges or degenerated into out right piracy. Virtually every major Caribbean Pirate began their career as captains or crew members on an
The Spanish had similar procedures in licensing pirates as the British. The Dutch out sourced the right to issue letters of marque to the Dutch West Indies Company, the premiere international trading company. However, the countries whose privateering licensing protocol where most unique was the United States. The licensing authority was more centralized then in other countries. The steps required to be granted a U.S. letter of marque where also far more rigorous then those of other countries.

In the United States the Constitution allows only the US Congress to issue letters of Marque. This means a would-be privateer would only receive a letter of marque if and when both house of congress vote for it and it passes and, like any other act of Congress, it was signed by the U.S. President. This highly rigorous process was likely indented to screen out undesirable elements attracted to privateering.

Once a privateer captain was granted the letter of marque he would be subject to the rules stated in the letter of marque. The contents of letter of marque state terms and parameters that its holders are legally obligated to follow. The letters of Marque would provide for vital aspects of the mission. It would state who the holder was entitled to target, the methods he could use and what date or event would cause the letter of marque to expire, as well as the percentage that monarch or State was entitled to. These terms where important because in some cases a violation could be seen an act of piracy. Of these terms perhaps the most is the term is who its holder could attack. The terms would state the nationality of the ships a privateer was lawfully able to attack, or if the letter was geared towards piratesw state that it applies to all pirates. This term was very important because privateering was considered an act of war. If a privateer went beyond his commission and attacked the ships of a country that was not at war with the privateer’s country that could force the privateer’s country into unwanted military and diplomatic entanglements. Consequently, governments took a hard line against such misbehavior, and charged its privateers who attacked nationalities not authorized by the letter of marque as outright pirates. To be in compliance with the law the holder of a letter of marque could not even attack the ships of a country at with the nation who the issue the letter of marque was war if that specific countries shipping was not mentioned in the letter of the marque. To remedy this problem privateers, including William Kidd, made it a practice to secure multiple letters of marques to cover any enemy of England whose ship they would be likely to have an opportunity to rob in their privateering expedition. Privateering licenses might also limit actions and tactics a privateer could use against an enemy. These limitations might limit the degree of force he could use as well as the targets and locations he could attack. In William Kidd’s ill fated privateering mission he was instructed to attempt take alive the pirates attempted to attach. These terms where not always abided by, the buccaneer pirates where notorious for attacking locations and using methods forbidden in the terms of the letters marques. The states that issued the letters of marque often turned a bind eye to such violations. The articles of the letter of marque sometimes provided for its own expiration. Letters of marque issued the Dutch and the French where only valid for 6 months. The English letters where valid until peace was signed.

A final demand on privateers is that they pay a share to the government or monarch who licenses them. For English kings this tended to be ten percent of the gross amount of prizes. For the English king the piracy awards where an important part of his income since he needed Parliamentary approval for the creation of taxes.

Privateteering was widely used from prior to the age of discovery until the post Napoleonic error. However in mid 19th countries began to take steps to end privateering. In 1856 the large European powers signed the Declaration of Paris which banned privateering. “Privateering is and remains abolished.” The Declaration Paris does not end the discussion about the legality of privateering. As a treaty the Declaration is automatically binding on nation who signed and ratified or latter acceded to it. Not all countries signed and ratified including the United States, Mexico, Spain and others. Further more many current countries where colonies at the time of ratification and thus where not a party to the treaty. While the treaty does not automatically bind these nations just by existence there is an alternative avenue that the Declaration of Paris which could ban privateering. The Declaration would be binding on all countries if it evolved international Customary. A treaty will evolve international customary law if it is norm creating, was universally acceded to or ratified by the nations of the world especially those nations who are most effected by the treaty. Finally the treaty must have been enforce for a sufficient amount of time. The rule is clearly norm creating, its states a clear rule that “privateering is abolished this as stand alone passage clear rule of conduct the privateering is abolished it furthers deals with general policy or norm and not a specific policy for achieving the general policy. The Declaration of Paris has been in force for 150 years, this amount time is clearly long enough for the entire international community to become aware of it. The final criteria requires that the treaty have wide spread ratification especially by States that the provisions are most relevant to. This criterion is probably the criteria that Declaration of Paris’s existence as customary law most falls short. While the Declaration of Paris had wide spread acceptance their where a number of countries which did not ratify including the US, Mexico, Spain and various non maritime state. Furthermore many countries which did not exist at the time it was ratified now exist and have not ratified it. In considering who is most affected by the ban on privateering it is countries with smaller navies who use privateering to supplement their navy. Many countries at the time of the treaty that refused to ratify where countries which where not considered naval powers at the time including US and Mexico. Countries which existed but had no maritime force also did not bother to ratify it. In addition many of the countries which exist now but did not exist contemporarily with the creation the Declaration of Paris have yet to ratify it. These countries are typically developing countries with very small navies. As such there is argument that Declaration of Paris does not fulfill the criteria of wide spread acceptance and therefore does has met perquisites necessary for a treaty provision to evolve into customary law. As such for countries that never ratified the Declaration of Paris there is an argument that they could be legally allowed to issue letters of Marque.

Iv. Piracy criminal procedure .

Piracy is defined by every nation as a crime. If an act is defined as a crime nations will have proceedings (a trial) to determine whether an individual apprehended for such an act is guilty as a mater of both fact and law guilty. The nature of the pirates right to trial and procedural due process rights varied from nation to nation. In some legal systems the pirates right to trial was a mere formality. However, in other nations such as Great Britan and U.S. the piracy trial gave the accused had substantial due process rights.

In England and its successor state of Britain had criminal procedures for piracy cases. While England, like every other Maritime state, took a hard line against piracy if a pirate actually was captured and turned over to civil authorities he would be provided with substantial due process rights. These rights included a trial by jury as well as the right to conduct a criminal defense. Before a pirate could even be tried he had to be indicted by a commission especially appointed for the purpose of investigating piracy. If a pirate was to be tried he would not be tried in a normal court but by the Admiralty which had a judicial branch with jurisdiction of all crimes committed by civilians on the high seas. This court was headed by the Lord Admiral of England. He was entitled to act as judge of all piracy cases though he usually delegated this function to his deputies who where regionally based. Depending on the time and place they went by various titles including Vice Admirals of the coast, “Admiral of Virginia” Judge of the vice Admiralty court etc. It had to be shown that the alleged pirate either committed an act of piracy or based on his conducted intended to commit piracy. The accused was also allowed the right to put forwarded a defense including the right to call witnesses. Some alleged English pirates where acquitted. If a party was acquitted he could not face double jeopardy. The English legal system was not flawless. Their were several examples of corruption at the admiralty courts. Also after 1698 England moved to a more inquisitorial trial model for piracy cases. this lessoned, but did not completely destroy safe guards of English law.

When the United States was formed in the 18th century it borrowed many aspects of the English legal system including the right to trial by jury, and various due process rights. The United States differed from some other countries as it did not assign Piracy cases to a functionally specialized tribunals or assign functionally specialized procedures but used the same Federal courts and procedures as used in any other federal crime. If a pirate was captured by American forced, before he could be brought to trial, he would need to be indicted by a federal grand jury. If indicted the court the case would be held in a Federal court presided over by a Federal Judge. The Federal Judge and Federal Courts have jurisiticition over all legal issues both civil and criminal which involve federal or are an area considered to be under federal jurisdiction (including maritime law). The prosecutor would likely be the U.S. Attorney a lawyer assigned to a regional jurisdiction charged with prosecuting all federal crimes that occur in their regional jurisdiction. Through out this procedure the accused would have due process rights including the right to a jury trial and the right against self incriminating. These rights where enshrined in the U.S. Constitution and thus could not be easily removed or ignored.

Great Britain and the U.S. where fairly unique in the degree of procedural due process it of offered captured pirates. If a pirate faced captured by Spanish or Portuguese authorities he likely would not live long enough to see a court. Such is because Spanish and Portuguese forces often gave Pirates vulnerable to capture no quarter. Governors also had limited summary execution powers in their role as the colonies military commander. If the capture pirate did live long enough to get to trial he might face a trial in front of the Audienca, the primary colonial court, or a military court. However he would not have the rights he would in an English court. For example a pirate could be tried in abstention before he is even apprehended. Furthermore these courts provided no right to a jury trial.

IV. The criminal procedure of piracy law.

If the society which captured the pirate recognized due process rights the prosecution would have prove its case. Here the prosecution would have to prove the accused is guilty of piracy. A strong prima facia case that is guilty of piracy is made if it shown that an individual is a member of a crew that either committed a piratical act or intends to commit a piratical act. If the accused is originally a privateer they would usually have to prove that he breached the terms of his letter of marque. The defense would try to refute the evidence presented to prove the prima facia case. In response to such a case, pirates had at their disposal a number of legal defenses. For example, an alleged pirate could be exonerated, if it is shown he performed his service for the pirate crew only based on duress. An alleged pirate would likewise be exonerated ig he could show a lack of sufficient intent. Of defenses included effective acceptance of the king’s pardon and benefit of clergy. Finally; perhaps the most unique pirate defense. For woman pirates, was pleading ones belly.

If an individual was served pirates only because he was under duress, even if acting deliberately, that individuals actions are considered involuntary. An individual is never liable for an involuntary acts. This defense is not theoretical pirates did sometimes press into service mariners from captured ships. There are two types of duress physical duress and legal duress. Physical duress is where someone is compelled by another to undertake activity out of fear that if does not he or someone else will face immediate physical harm or death in retaliation for not undertaking the desired activity. While an alleged Pirate would be freed if his actions where motivated by physical duress; the mere fact that a person could theoretically face physical violence if he did not engage in a criminal act, such as piracy, is not sufficient if his motive for the piratical act was something other then fear of physical retaliation. ‘Such would occur if an alleged pirated acted out of desire for the esteem of the other pirates or for a share of the treasure even there are other consequences for not acting. Similarly, if a persons motives change over the course from duress to another factor he is guilty of piracy for acts done after his motives change.

Besides physical duress there is also legal duress. Legal duress is where a person is motivated to act not out of fear of physical injury but out of fear of legal consequences of breaking the law. Admiralty law nominally holds that disobeying their captain’s orders is illegal. The law generally recognized that if a sailor broke the law in order to obey orders he would not be guilty. The legal jeopardy he would potentially face for not obeying the order made his breach of the law involuntary. While this rule might to apply to most mariners a pirate could not claim that legal duress as an excuse for following his captain’s orders to commit a crime. Such is because pirate has no legal to follow his captain orders. Such is because the captains authority is predicated on an illegal, and thus unrecognized agreement, that a group will combine under the captain’s leadership commit piracy. However, an alleged pirate could claim legal duress as a defense if piratical act occurred on what was initially a privateering mission. This circumstance would occur if sailor is on privateering but on this missions in ordered to commit piratical acts. As the mission had began as a legal mission the crew member would be nominally bound to his captain’s orders and thus would feel legally compelled to follow orders even if the orders are illegal. However, like physical duress legal, an alleged pirates feeling of legal duress would only be an adequate defense if fear of legal obligation is what actually compelled him to commit the illegal act.

For both physical duress and legal duress the duress must the motivating factor for the piratical act if that is to be a defense.

In determining whether duress was the true motive for, piracy courts realized they where ill equipped to read a person’s heart and mind. They therefore developed an objective test. In evaluating the claim of duress as the alleged pirates motive, the courts would look at whether he accepted the ill gotten prizes. The courts saw the receiving of a share of pirates prizes as distinctively reserved for members of the pirate crew. By accepting the share pirates share an individual was signifying his desire to be part of pirate crew or at least to reap the benefits of being a pirate. If individual was serving to advance himself as a pirate or receive Pirate treasures those would be his motive, and he could not be considered as working under duress.
To be guilty you must have mental intent. If your actions where based on a mistake in fact you would not have the required mental intend and not be guilty. For example the Henry Morgan was charged with piracy because he attacked Spanish assets after his letter of marque had expired based on peace with Spain. Morgan successfully defended his actions by claiming a mistake in fact. He could not be guilty of piracy because he did not know that his peace had been declared.

In their defense Pirates sometimes “pleaded the Kings pardon” and therefore claimed immunity from prosecution. If the alleged pirate had received the King’s pardon the pirate would be immune from prosecution for all crimes committed before receiving this amnesty. Periodically the English government would proclaim a conditional amnesty known as the known as the Kings “Pardon”. This was done on number including in 1698 (known at the time as the act of Grace) and later in 1718. To be eligible for the amnesty a pirate would have to surrender by the deadline set in the proclamation. He would also have to abide by any other conditions set the amnesty. The proclamations sometimes specifically exempted particularly heinous pirates. Another piracy defense which is now anachronistic is benefit of clergy. The benefit of clergy is a right that members of the clergy had to only be tried in church courts and the right to be immune from prosecution in secular courts. If a person plead benefit of clergy he essentially was asserting that the secular courts lacked personal jurisdiction over him and he should either freed or reassign him to the notoriously lenient church courts. On its face this would seem not to apply to pirates since few if any where clergy men. However, pirates could be freed under this doctrine because the test to determine whether one was a clergyman was simply to recite one bibical passage of the Judges choosing. If he recites the passage correctly then, for purpose of that one case, the accused is irrebuttably considered a clergy man and no evidence can be admitted to contradict the accused plea even if the judge had reason to believe the accused was not clergy. The ease of proving one was clergyman would seem to invite fraudulent pleas as means for an accused escape punishment; indeed it was this way by design. During the 16th, 17th and 18th centuries English law was extremely harsh. The English government and judiciary saw the will full manipulation of the benefit of clergy as a way of lessoning the harshness of the English legal and criminal justice systems without fundamentally changing them. This was by no means a full proof legal defense the judge had discretion on what bible verse would be recite and could simply choose a verse the less educated pirate would be unlikely to recite verbatim. This defense generally was not available for certain crimes such as murder and rape. Therefore, if the pirate killed someone he could face harsh justice for that. This defense did not last the entire age of piracy. The piracy act of 1717 made the Benefit of clergy inapplicable in piracy cases.

Finally one possible defense strategy used by pirates was “pleading ones belly.” This defense could only be used by female pirates who happened to pregnant at the time of conviction. Under English law a woman convicted of a capitol crime she would receive a temporary reprieve from capital punishment if she was pregnant and that pregnancy could be medically verified. This defense was used in a piracy case twice by female pirates, Ann Bonny and Mary Reed. In Ann Bonny’s case this temporary reprieve probably saved her life. It seems that as the months seeing this young single mother spending her days in the squalor of a colonial jail ultimately created, in her jailer’s, pity for her. As a result of this she apparently was released without formal authorization or otherwise was allowed to escape with no attempt made to apprehend her or even record her status as fugitive.

If these defenses did not work the convicted would face punishment until the mid 19th century the punishment was almost always death.

V. Conclusion.

Piracy like any other field had applicable laws. Some of these laws punished piracy others effectively legalized piracy. However they all attempted to bring order into something which fundamentally lacks order.

The author, William G Petrone was born September 26, 1981 in Mobile Alabama and currently resides in westen Mass. Willam holds a Bachelors of Bussiness Adminstration and Juris Doctorate both from Western New England College. He is currently in the process of writing a book about wikipedia. To contact regarding writing jobs or writing assignments for William email: wikaja@aol.com.

Article Source: http://EzineArticles.com/expert/William_Petrone/124092

 

Advent of Foreign Law Firms in India

The opening of a legal firm by a Nigerian in Delhi has not only lawyers up in arms against the unauthorized practice but has also revived the decade-and-a-half-old debate over the more important question – should foreign lawyers be allowed entry into India?

It is often asserted that India has the potential to become one of the world’s great legal centers in the 21st century, alongside London and New York. It has innate advantages in its common law traditions and English language capability. But until very recently India had not recognized the role that advisory legal services have to play in attracting foreign investment and developing a broader-based services economy.

India being a signatory to the General Agreement on Trade in Services (GATS) which is an organ of the World Trade Organization (WTO) is under an obligation to open up the service sector to Member Nations.

“Services” would include any service in any sector except services supplied in the exercise of governmental authorities as defined in GATS. “A service supplied in the exercise of governmental authorities” is also defined to mean any service that is supplied neither on a commercial basis nor in competition with one or more service suppliers.

Legal profession is also taken to be one of the services which is included in GATS. With the liberalization and globalization policy followed in India, multinationals and foreign corporations are increasingly entering India. Foreign financial institutions and business concerns are also entering India in a fairly large number. Their business transactions in India are obviously governed by the Indian law and the foreign law firms (FLF’s) and foreign legal consultants (FLC’s) being not fully conversant with the Indian legislation require the assistance of lawyers enrolled and practicing in India. This has led to the idea of entry of foreign legal consultants and liberalization of legal practices in India in keeping with the guidelines evolved by the International Bar Association (IBA) and the GATS. If this idea is to be put into practice, the Advocates Act, 1961 which governs legal practice in India needs to be amended.

Legal “practice” is not defined in the Advocates Act but a reading of Sections 30 and 33 indicates that practice is limited to appearance before any court, tribunal or authority. It does not include legal advice, documentation, alternative methods of resolving disputes and such other services. Section 24 (i)(a) of the Act provides that a person shall be qualified to be admitted as an Advocate on the State Roll if he is a citizen of India provided that subject to this Act a national of any other country may be admitted as an Advocate on the State Roll if the citizens of India duly qualified are permitted to practice law in that other country.

Section 47 of the Act provides that where a country specified by the Central Govt. in this behalf by a notification in the Official Gazette prevents the citizens of India from practicing the profession of law subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practice that profession of law in India.

The basic principles set out by IBA on the question of validity of FLC’s are fairness, uniform and non-discriminatory treatment, clarity and transparency, professional responsibility, reality and flexibility. The guidelines laid down by the IBA are as follows:

“Legal consultant means a person qualified to practice law in a country (home country) and who desires to be licensed to practice law as a legal consultant without being examined by a body or an authority to regulate the legal profession in a country (host country) other than a home country, such a person has to apply to the host authority for a license by following the procedure for obtaining a license subject to the reasonable conditions imposed by the host authority on the issue of licenses. This license requires renewal. A legal consultant has to submit an undertaking alongwith his application not to accept, hold, transfer, deal with a client found or assigned unless the legal consultant does so in a manner authorized by the host authority to agree and abide by the code of ethics applicable to host jurisdiction besides to abide by all the rules and regulations of both the home and host jurisdiction.

It is open to the host authority to impose the requirement of reciprocity and to impose reasonable restrictions on the practice of FLC’s in the host country, that the FLC’s may not appear as an attorney or plead in any court or tribunal in the host country and the FLC’s may not prepare any documents or instruments whose preparation or performance of other services, is specifically reserved by the host authority for performance by its local members.

Many experts have given their views on entry of FLF’s and FLC’s in India pursuant to GATS. They are not opposed to the idea but it is suggested by them that some restrictions, adequate safeguards and qualifications should be provided for besides reciprocity.

The restrictions, if any, will have to be reasonable. Obtaining Indian law degree and practicing Indian law for a period to be stipulated for entry may be the only reasonable restrictions. Canadian model of University training, examination and articleship administered through a joint committee accreditation may be a viable solution. To follow the principle of non-discrimination, it may not be possible to impose any onerous restriction limiting the clientele, the nature of legal work, the fees to be marked, the form of fees (Rupees or foreign currency) etc. So far as reciprocity is concerned level playing field and uniform code of conduct will have to be worked out. Many western nations allow their lawyers to advertise whereas in India the lawyers are not allowed to do so. In California the FLF’s were only permitted to deal in laws not specific to California. Even in countries like Singapore, Hong-Kong and Japan the FLC’s are restricted to servicing only foreign firms. The treatment meted out to FLC’s and FLF’s in other countries and the rules, regulations made to govern their practice in the foreign country should be thoroughly scrutinized before allowing the entry in India.

Even if reciprocity were allowed, no Indian firm would go abroad to conduct legal business not because it has no talent, competency or efficiency but economically it would not be a viable proposition. The Indian lawyers have no resources to set up an establishment in a foreign country nor will the Indian Government render any assistance to them to promote their business in a foreign country. Even the large population of non-resident Indians would not desire to patronize the Indian lawyers even though they may be experts in their own field because the resident lawyers having full knowledge of the law of the country would be available to them at reasonable price because for the legal experts from India apart from the fees charged for the legal consultancy/service they may have to spend on their traveling expense also. The legal service by calling Indian experts would be very expensive for the non-resident Indians and they may not get full effective service since the Indian legal consultants may not be very conversant with the laws applicable there. It is only if any Indian party is concerned in a dispute and the question relates also to Indian law that Indian legal Consultant would be invited to a foreign country and not otherwise. Such occasions will be rare. The picture is different in case of foreign firms who do business across national borders, due to globalization. They demand foreign lawyers since they like to rely on the services of professionals in their own country who are already familiar with the firm’s business. If the foreign firms carrying on business in India require advice here on home country law, that can be made available to them by the Indian law firms or the Indian legal consultants. They can also prepare the legal documentation or provide the advisory service for corporate restructuring, mergers, acquisitions, intellectual property rights or financial instruments required by the foreign firms. These aspects will have to be seriously considered while considering the principle of reciprocity. Reciprocity should therefore be clearly defined and must be effective. It should be ensured that the rules and/or regulations laid down should be strictly complied with otherwise as is the experience, the rules remain on paper and what is practiced is totally different. The authorities either do not pay any heed to the violations or they overlook or ignore it as in the case of the Foreign law firms in India in the Enron deal, the permissions for such law firms to set up liaison offices came from the RBI which reports directly to the Finance Ministry. When these law firms violated the very conditions of being liaison offices the RBI overlooked or ignored it.

Some are of the view that instead of being perceived as a threat to lawyers, this should be seen as a move to raising standards within the profession but with reciprocal arrangements. The legal profession as it was practiced years before by the legal stalwarts did have a very high standard. However, today that standard of profession is nowhere to be seen or experienced. Legal profession has also become totally commercialized with no human or moral values. The standard has gone down considerably. However, the fees charged have tremendously increased, disproportionately to the service rendered to the clients. No effort is being made in any corner to set the wrong or malpractices which have crept in in the legal profession. On this background, what would be the “raised standards”? If at all the standards are raised, would the entire class of legal practitioners in India benefit or will it be only a small section of the legal practitioners who would be able to take advantage of the new situation? In that case, can this move be said to be in the interest of the legal practitioners? The situation so far as the FLC’s are concerned would be completely different since all the FLC’s who aspire to come to India will get equal treatment whereas the Indian legal practitioners would be deprived of equality in profession. Besides the FLC’s will have foreign clients and even though they are allowed to practice in India with a reasonable restriction of obtaining law degree in India, for some time definitely they will need Indian lawyers to get their work done. With the resources at their end and with the higher exchange rate in currency, they will be able to hire and retain young lawyers with substantial pay packages, though as compared to their fees in their country it would be much lower, with the result that good reputed Attorney’s/Solicitor’s Firms in India would lose their good hands and their work may suffer. Law Firms in U.S.A have funds equal to the annual budget of the State of Maharashtra. With such resources, in a short time, such FLF’s would do away with the existing law firms in India. On this background would our law firms withstand the competition and the quality of service, is an important question to be examined.

The U.S and some other advanced countries have large law firms operating on International scales which are primarily business organizations designed to promote commercial interest of their giant client corporations. The size, power, influence and economical standards of these large international law firms would definitely affect the legal system of our country adversely. We cannot match howsoever far we may stretch it, their size, power and most importantly economical standard. There is a limitation here on the number of partners in an Attorney’s/Solicitor’s firm. The number is restricted to 20 under the Partnership Act, which restriction is non-existent in a foreign law firm. To bring uniformity this limitation will have to be removed allowing for more partners, increasing of funding and manpower.

Moreover the FLF’s have “single window services” meaning services which not only include legal but also accountancy, management, financial and other advice to their clients. The multidisciplinary partnerships will cater to the needs of the clients in the above-mentioned different fields. Such partnerships may endanger the ethics of the legal profession as confidential information may be passed out within the partnership to the non-lawyer professionals. This would prejudicially affect not only the clients but also the lawyers since the independence of the lawyers would be compromised. Once the FLF’s and FLC’s are allowed entry into India the Bar Council of India will have to make rules and regulations also for such multidisciplinary partnerships or single window services. The multidisciplinary partnerships may look attractive but the crucial question is whether the quality of services and accountability of systems can be maintained? The code of ethics needs review to bring international legal practice under its purview.

The Foreign law firms may seek license for full and regular legal practice like that of Indian lawyers or they may come for a limited practice of consultancy for foreign partners on home country laws. Accordingly the rules and regulations will have to be framed to meet both these situations. The FLF’s who intend to come for regular legal practice may have to be subjected to immigration and citizenship laws. Those who seek limited practice may enter into partnerships with the home country law firms without any scrutiny from the organized legal profession. It is therefore necessary that a transparent, fair and accountable system be evolved to regulate and control the internationalization of legal practice.

With the globalization and liberalization policy not only foreign businessmen have come to India for investment but even the foreign goods and products such as agricultural products and other goods have entered the Indian market. The Indian goods and products have to face a tough competition with these foreign products which are cheaper though may not be better in quality. The result is that the Indian agriculturists and merchants are seriously prejudiced in their business. We also have the example of Enron which was in news where the Indian law was modified without probably realizing the adverse effect it would have on the electrical companies in the State. The agreements signed with Enron do not appear to be in the interest of the State or the Nation. However, such matters are thought of only later and not when the actual action is taken. With the present experience, it is felt that we should not be carried away with the idea of raising our standards or of being on par with the other developed countries where the guideline of reciprocity may be followed and the FLC’s and FLF’s would be allowed to enter the country. We have to be very alert and watchful and think well in advance to do away with any lacunas or loopholes in the rules and regulations that may be introduced to safeguard the interest of the lawyers in our country.
One more point which may need consideration is about the countries who would be interested in India. Would these countries be the members of the World Trade Organization or would even the non-member countries be allowed to enter India? If the entry is restricted to only the members of the WTO and if any non-member country desires to enter India, would the entry be denied merely on the ground that it is not the member of the WTO or whether the non-member would be allowed entry to show our fairness and equality of treatment? Thus many countries may be interested in coming to India due to the liberalization; globalization and privatization policy followed in India but the chances of the Indian firms going out of India to enter any foreign country would be remote. The principle of reciprocity may be introduced on paper but may not be effectively followed.

It may be mentioned here that the “Lawyer’s Collective” has filed a public interest litigation before the Mumbai High Court questioning the phrase “practice the profession of law” under section 29 of the Advocates Act. The respondents in their petition include some of the FLF’s which had set up their own liaison offices in India. It is needless to point out that all the above points may be discussed and examined in the above petition, the result of which is awaited.

The Indian legal profession has, in recent years, undergone a significant change, emerging as highly competitive and ready to move along with the ongoing wave of globalization. The interest of foreign law firms to open shop in India therefore is hardly surprising, since India offers a full range of legal services, of comparable quality, at literally a fraction of the price that would otherwise have to be paid. The rather conservative and if one may use the word, “protectionist” stand of the Bar Council of India on the matter has, however, prohibited foreign law firms from operating in India. A number of the more established ones, perhaps unable to resist the immense potential of the Indian legal markets, and in anticipation of the “globalization of legal services” under the aegis of the WTO, are slowly (and quite discreetly) establishing their presence in India, this in a considerable number of cases taking the form of their entering into associations with Indian firms, and in the process, literally operating in India indirectly, despite the prohibitions against the same. An issue that has therefore started to attract the attention of not simply Indian lawyers, but also law school grads, is the likely consequences of the entry of foreign firms in India. Shall this help an already growing Indian legal market, or shall it only mean a job loss for Indian law grads?

The fact remains that India is in the process of globalizing its economy. In the process, the legal market opening up to competition from the international legal market is rather inevitable. Instead of deliberating about the advantages and disadvantages of the legal markets being opened up to foreign firms, it is perhaps more sensible to accept that the entry of foreign firms in India is only a matter of time. However, this should not mean that their operations should nor be regulated, since otherwise they may just push out the Indian firms. For law school grads, their presence in India could well translate into an increasing range of job opportunities, apart from their presence in India significantly influencing the way in which the Indian legal market evolves in the 21st century.

Article Source: http://EzineArticles.com/expert/Ashok_Priyadarshi_Nayak/81927

 

The Law of Moses and the Believer

What is the status of Moses’ law today? In short, law lives. But it can harm us no more. The original law came by Moses (John 1:17 )and because of the weakness of our flesh condemned us, but grace and truth came by Jesus Christ, who promised us He did not intend to destroy the law, but to be sure it is fulfilled (in Him and in us).

Law lives. How do I know? Because sin lives, and sin is the transgression of law. Every man who confesses his sin admits to the broken law of God. The difference between now and then or if you will, us and them, is not lawlessness but forgiveness.

Law, a major part of Scripture, lives, but now we dread not its pages. Rather we can be enriched by the “encouragement of the Scripture” (Romans 15:4). For the unconvinced we will look at some of Paul’s heaviest teachings about the law, in summaries of the teachings of Romans and Galatians .

Romans: Romans 2. Law is everywhere, whether handed down from Sinai or built into Gentile thinking by the passing down of truths from the creation. We are told that we cannot boast in the law, because we are all lawbreakers. Circumcision is added as a seal of the Old Covenant if the covenant-maker is perfectly obedient in every way. Since that never happened, and all are lawbreakers, circumcision is a meaningless sign now, and the New Covenant is sealed by a circumcision of the Spirit.

Romans 3. We can never be justified by law, but we cannot with our sin make void law either. In fact, our constant breaking of the law establishes that holy piece of work!

Romans 4: Where there is no law, there is no transgression , for sin is the transgression of the law.

Romans 5: Sin was in the world before the law was given, but not imputed to man, not clearly defined, not placed in men’s accounts. When it did come to us, it was to expose sin for what it is. This is still its purpose. It teaches us our need and brings us to Jesus.

Romans 6: Now we are not under the law. But law lives. Sin shall not have dominion over us. But sin is a possibility. Sin lives.

Romans 7: We are dead to the law (which lives) through the Body of Christ. We are delivered from the law, this fearful taskmaster that kept us in bondage. But now, as prophesied by Jeremiah we serve in the newness of the Spirit, who does God’s law in us. The law is not sin! But we know sin through the law. We are “alive” without the law. But when the law comes, we are exposed, we “die”. The law is holy and we delight in it with our mind. No one should hate the law of God and consider it a thing to be destroyed! Jesus never did. No one should pray to be delivered from the law of God, but from the curse connected to it. One who is without law is lawless , and there is nothing but contempt in Scripture for the spirit of lawlessness, II Thessalonians 2. What we want is freedom from its curse, not its righteousness! Though I do delight in it, there is another law inside me against the original law: it’s called sin.

Romans 8: My flesh makes the law seem weak. But Jesus condemned sin in the flesh. Now the requirement of the law is fulfilled in those who walk by the Spirit, just as Jeremiah and Jesus both taught.

Galatians: Galatians 2. No flesh will ever be justified by the works of the law. Through the law we died to the law, and there is no righteousness to be gained through trying to keep law, whether Sinai’s or the expanded revelations of Jesus and the apostles.

Galatians 3. One cannot receive the Spirit or any of His gifts by keeping the law. To be “under” the law is to be under a curse, for, as he quotes from Deuteronomy 27:26, “…cursed is everyone who does not continue in all things written in the book of the law.” But Jesus became the curse for us and sets us free to keep the law’s requirements.

Galatians 5. We are to maintain our liberty by not being entangled with the curse again. Yet he says in the same chapter that all the law is fulfilled in the love of neighbor that flows from the Spirit-filled believer. He tells us to walk in the Spirit and we will not fulfill the lusts of the flesh, to be led by the Spirit since we are not now under the law.

So the connection between law and believer is not as simple as we might have suspected. The law lives, and through the Spirit expresses itself in a righteous life, pleasing to God the Father.

[http://chosunhouse.com] is a website I put together a few months back to get the word out to believers that they need to pray for North Korea. I have created over 200 blogs and the site features a live news feed , lists of resources, picture essays, and ways to respond to the overwhelming need in North Korea. Let’s love Chosun together! Contact me any time at diakonos5@yahoo.com

And who am I? A man found of God over 50 years ago, called to the ministry, serving the Lord as needed in my world. Married, member of a local church in the Chicago area, with full time work in public education. I love to write Scriptural works. Who are you? Would love to fellowship with believers who respond .

Article Source: http://EzineArticles.com/expert/Bob_Faulkner/155118

 

Law of Attraction – Cooperative Reality

Universal Law

There has been an enormous amount of discussion lately about the Law of Attraction,
you could say that the Law of Attraction has gained celebrity status as the personal
development tool of the moment, the current popular method for manifesting your dreams.
What most people don’t realize is that the Law of Attraction is not a new idea, in fact
it’s not even an old idea in the sense that there
was a point in time when somebody coined the phrase and suddenly everyone began using it
like some new appliance. Someone of course did invent the phrase Law of Attraction,
but in the same way that Sir Isaac Newton invented the word gravity. The Law of Attraction
like gravity, just is, no one owns the rights to it, in fact it is impossible to avoid using it.

The Law of Attraction is one of many laws by which mankind has been operating
consciously or unconsciously since the dawn of time. Most people are blissfully unaware
of how these laws affect their lives and equally unaware that the power of these laws can
be harnessed and used to great effect on a daily basis.

Since the release of the movie The Secret, the Law of Attraction has come to the forefront
in peoples minds as the ultimate tool for changing your life
and that is a good thing. I find however that many people after watching
and reading information about the Law of Attraction are still somewhat confused as to how
it actually works. There is a lot of talk about holding images in the mind, sending
thought vibrations out to the universe, maintaining a state of expectation and gratitude,
and waiting for the universe to respond by the Law of Attraction and provide that upon
which you have focussed your intention, and so on. All of these things are very wonderful
and I have found all of them useful in my own learning, but none of these ideas provided me with
truly satisfactory answers about how the Law of Attraction actually works, both
spiritually and scientifically.

Now if you’re anything like me, blind faith just doesn’t cut it, most people like
at least to have some kind of decent explanation for why they should get involved with
the Law of Attraction, otherwise we tend to reject the whole idea outright, which would
be a unfortunate indeed.

Vital Knowledge

The trouble that I think some people have is that they hear about incredible success
stories involving the Law of Attraction, amazing tales of people that have gone from
having an average kind of existence to living a life that most people only dream about,
and then set out in good faith to achieve similar results. Clearly not everyone achieves
the results they had hoped for, why is this? Has the Law of Attraction failed? Are all of
the success stories bogus? Are they just clever ploys to get us to buy books and movies
about how to use the Law of Attraction?

There are many individual claims about the Law of Attraction bringing great abundance
and the fulfillment of great dreams, and there are also charlatans in every area of life,
religious, secular, scientific, but it would be a great mistake to reject a concept of
such potential because of a few con artists, you might as well give up on all personal
development right now.

As for the first idea that the Law of Attraction has somehow failed to work, my own
experience tells me that this is simply not possible, the Law of Attraction is not a
business plan, or a clever scheme that is subject to markets or the moods of individuals,
it is as constant and predictable as the sun rise, all that is required is the appropriate
level of understanding in order to leverage its potential.

This I believe is where a lot of confusion exists, why do some people seem to be able
to apply the Law of Attraction with great affect and others struggle to see the smallest
things manifest? The answer is knowledge, there is a basic lack of understanding about how the Law of
Attraction works. Some people however seem to be able to easily apply the Law of
Attraction and get results even though they have no more knowledge of what is actually
happening than the next person, why is this? It is because some individuals have a mental
pre-disposition to accepting the Law of Attraction, its requirements and outcomes without
question, others don’t and require further instruction about the fundamentals of the
law of attraction before being able to apply themselves properly.

Its a bit like being given a kit for a model aeroplane without the assembly
instructions, some people may have a natural understanding about how to assemble things,
they may have watched their father assembling model aeroplanes in the past, but for
others it will be an almost impossible task, time consuming and frustrating.

It is my experience that with a basic increase in understanding about the Law of
Attraction and the underlying principles that govern it, any individual can begin to see
real results in every area of their life almost immediately. So let’s now take a look
at some of that useful knowledge that will assist us in gaining a better understanding of
how to apply the Law of Attraction to great affect.

The Most Important Thing

The first thing that I would like to say is that the Law of Attraction is not the most
powerful law in the universe, contrary to popular opinion, there are a number of
underlying principles that govern how the Law of Attraction works, and that is where we
shall begin.

I want to start by making this statement; when we use the Law of Attraction, we do not
attract things! this is also contrary to popular opinion. There is not a sports car with
your vibration on it waiting for you to
believe that it’s yours before it appears in the driveway. This may seem a ridiculous
statement, but there are many teachers of the Law of Attraction that state exactly that,
it’s about manifesting things, well it’s not.

The Law of Attraction does not work by you putting out a thought vibration to the
universe and somehow the universe, through the principle of the Law of Attraction,
responds to that thought by sending you the thing that matches that vibration, yet
unfortunately this is what is taught. Some people simply accept this explanation and get
on with using the Law of Attraction to great success, you could call that blind faith,
and I have no problem with that at all, but it won’t work for everyone, and that does
concern me because it can work for everyone.

The most important thing you will ever understand about the Law of Attraction is that
it always involves other people, other minds, other realities, not things. I call this
underlying principle Cooperative Reality and discuss it in detail throughout my book.

Put simply, Cooperative Reality states that in order to apply the Law of Attraction
you require the cooperation of other individuals realities. Understanding this concept
has been the single greatest step in my own personal growth, when I came to this
realization it completely revolutionized my experience in using the Law of Attraction. It
provided me with meaningful direction in the application of all the methods I was
ignorantly using to apply the Law of Attraction.

I have been asked many times to explain my success in using the Law of Attraction, and
I discover that it’s not easy to summarise the concept of Cooperative Reality, and that is
why I decided to write my book entitled
Law of Attraction – Cooperative Reality.
I will however attempt to summarise the book in order to give you at least some idea of
the power of this concept in relation to the Law of Attraction.
I must state however that there will be some ideas that may seem very
unusual, but I assure you there is solid scientific evidence for everything I am putting
forward, again, explained in detail throughout my book.

The Quantum Field

First of all we need to ask the question “what is reality?” and I will begin by
taking a brief look at a concept within Quantum Physics called super position. Briefly
stated super position is referring to sub atomic particles appearing in more than one
place at the same time, in fact the same electron, if I may use this particle as an
example, could appear in as many as 3000 different or potential locations simultaneously,
this phenomenon is referred to in Quantum Physics as a wave function. So the entire
universe being made up of the very tiny world of sub atomic particles exists in super
position, or one of many potential locations, on a universal scale Quantum Physicists call this the Field of
Potential.

This is great new for us all, it means that your reality is not fixed, it is flexible,
changeable, it can be altered from one form to another, but who does the transforming and how?

The Observer

This brings me to the second point I would like to consider, also a concept used in Quantum
Physics called The Observer, and this principle directly affect and alters the Field of Potential.
So what is The Observer? Well, you are the Observer, along with ever other conscious individual
on the planet. And what does the Observer do? The Observer is responsible for the
collapse of the wave function. What does that mean? Basically it means whenever you
consciously observe the Quantum Field you snap your reality into a single location
in time and space. Scientists conduct complex experiments with particles that bare out this
concept and it certainly aligns with my own experience.

So when we observe the Quantum Field, the world, the universe, what position do we
collapse the wave function to? Where does our reality finish up? Well that is determined
by what you believe, and I’m not referring to your religious allegiance, I’m talking about
what you believe your reality should be with every fibre of your being, which is taught in
the Law of Attraction, it’s just not generally explained that well.
Now you are not the only Observer collapsing the wave function to set reality by what you
believe, everyone is an Observer, and that is of vital importance to understand.
To properly apply the Law of Attraction we need to somehow alter the way other people view reality,
and we will take a look at that shortly.

Rewiring The Mind

Finally we need to consider how it is that we change our fundamental beliefs about
ourselves and about the world. Fortunately for us, the construct of our belief systems
exist within the mind, in the complex structure of neural pathways that make up the
different areas of the brain. I say fortunately, because recent discoveries in neuroscience have
revealed that the neural structure of the brain is highly flexible, not rigid and fixed as scientists first
thought. You are not destined to be locked in to behaviors and attitudes of the past,
ways of thinking and patterns of belief that have been neurologically passed down to you
by your ancestors through your DNA, you possess the power to reconstruct the neural
pathways in your brain and create a brand new construct of reality in your mind.

This is a vital area of knowledge that most Law of Attraction publications do not go
into, some of the common Law of Attraction methods such as, focussed intention, and
holding an image in the mind of a new reality do have an affect on the neural construct
of the brain, but the affect can be temporary, because we are not taught how to solidify
the new construct for use over the long term. The human mind processes roughly 100,000 bits of
information per second, yet we are only consciously aware of around 2000 bits of that
information. What we need to do is begin to learn how to permanently alter the construct
of our neural net in order to perceive a new reality, to become aware of things that we
had never considered before and forever change our deep beliefs about who we are and what
we are doing here.

Putting it all Together

So what does this all mean in relation to using the Law of Attraction more
effectively? Your first goal when attempting to apply the Law of Attraction must be to
alter your fundamental beliefs about what your own reality is in order to begin
collapsing the quantum field to that new reality, but as I mentioned earlier, you are not the
only one that sets reality through belief, and this is where the Law of Attraction really
comes into its own.

As you apply all the methods around the Law of Attraction, visualization, intentions,
gratitude etc, you create a stronger reality for yourself, and that reality connects with
corresponding vibrations in the minds of those around you. You begin to alter other
individuals beliefs in relation to you, and they also begin to collapse the quantum
field in alignment with your new reality. Basically you create a stronger personal
reality that affects those around you, this is no game of chance, but using the
Law of Attraction properly does feel a little like stacking the odds in your favour.
When I first began to really understand and
apply the principles mentioned above, all the small details of my life began to change,
my life went from 80 percent of the things that happened to me being a disappointment to 80
percent of things becoming truly positive and magical virtually overnight.

Conclusion

Your life consists in all the small details that make up your reality, you don’t
need to be somewhere else or do something else in order to be truly happy, using the Law
of Attraction you can begin to quickly transform every area of your life from the mundane
to the incredible, everyone has this ability, all you need is a brain and a choice.

As I said, it is difficult to explain this subject briefly, but I hope you have found
this article helpful in your understanding of the Law of Attraction and how it works.

If you would like to learn more about properly applying the Law of Attraction
and find out about the practical methods I use for changing my own fundamental beliefs and affecting
the reality of those around me, I encourage you to consider reading my book
Law of Attraction – Cooperative Reality, you will find simple practical methods for using the Law of Attraction
and Cooperative Reality, along with clear explanations of all the concepts I have mentioned in this article.

You are an incredible, eternal being, full of power and potential, I wish you every
success in your search for change through the Law of Attraction.

If you would like to learn more, feel free to visit my website www.transformingreality.com [http://www.transformingreality.com/]

Article Source: http://EzineArticles.com/expert/Peter_Royle/188371

 

Your Legal Rights in a Living-Together Relationship – Common Law Marriage

This article is intended for anyone involved in a long-term, committed relationship, who has never been formally married, and wants to know his or her rights. Whether your relationship recently ended, it’s in crisis, or you just want to know whether being formally married makes a difference in this day and age, you’ll probably be surprised by what the law provides.

One common misconception is a belief that there is little legal difference between marriage and living together. This sometimes arises out of the mis belief that after a period of cohabitation (frequently believed to be seven years), a living-together relationship is instantly metamorphosed into a common law marriage. This myth, though it has the persistence of urban legend, is pure fiction. In truth, you cannot enter into a common law marriage within the boundaries of New York State. And, common law marriage has become less and less favored across the nation over the past hundred or so years.

According to my most recent research, there are only ten jurisdictions that continue to recognize common law marriage (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia), and five others that do so, but only if the relationship was established prior to a certain date (Pennsylvania, Georgia, Idaho, Ohio and Oklahoma). There are a few countries that also recognize common law marriage, or a status similar to common law marriage.

Here in New York, common law marriage has not been legally sanctioned since 1933. But the inquiry doesn’t quite end there. There are several states, New York being among them, that recognize common law marriage relationships that were established while the parties resided or sojourned elsewhere, namely in one of the aforementioned common law marriage jurisdictions. So, despite the abolition of common law marriage in 1933, our courts continue to recognize common law marriages that were established in other jurisdictions. And, this may be the case even where the couple only temporarily sojourned in such jurisdiction, all the while maintaining their domicile in New York.

In such instances, the court’s determination of whether a common law marriage was established will hinge on the legal standards of the particular state where the parties sojourned. These standards and precedent vary from state to state. And, contrary to common law marriage folklore, common law marriage states look to more than just whether the couple attained their seventh year of living together.

Some legal factors that are considered significant in common law marriage states are: (i) the amount of time spent in the state; (ii) whether the parties “held themselves out” as husband and wife; (iii) whether they functioned as an economic entity; (iv) whether they ever entered into an agreement stating their intent to be considered married (even though they never formally wed); (v) whether either of the parties was married to someone else at the time; and (vi) whether the parties actually physically resided together. Lastly, in each of these states, historically you’ve needed to be of opposite sexes.

Contrastingly, factors that typically won’t be considered significant (factors I might contend bear more directly on notions of fairness) include (i) sacrifices made by either party in entering into the relationship (what lawyers call “detrimental reliance”), (ii) the standard of living enjoyed by the parties, (iii) whether one partner might not be able to sustain that lifestyle after separation (or even support himself or herself period), and (iv) whether there were children of the relationship.

This issue most recently garnered public attention in New York when the prominent film actor, William Hurt, was brought into court by his then ex-girlfriend, an actress and dancer by the name of Sandra Jennings. The decision in that case underscored, among other things, how crucial issues of credibility can be.

The common law marriage jurisdiction involved was South Carolina, where the parties had sojourned during the filming of “The Big Chill”. The crux of Ms. Jennings’ claim was that during an argument, Mr. Hurt told her that, “as far as he was concerned, we were married in the eyes of God”, that they had “a spiritual marriage”, and “were more married than married people.” Mr. Hurt, for his part, denied ever making these statements. There was also uncontradicted evidence that the parties never held themselves out as a married couple, even while cohabiting on location in South Carolina. On the other hand, the parties did have a child together.

In the appellate court decision, which dismissed all of Ms. Jennings’ causes of action (Jennings v. Hurt, 554 N.Y.S.2d 220), the Court made particular note of the following facts: (i) that Ms. Jennings had never mentioned any conversation regarding an alleged “spiritual marriage” during her pre-trial deposition; and (ii) that a document, which Ms. Jennings had allegedly signed her name to as “Hurt”, was in fact an altered copy on which the name “Hurt” had been inserted.

As to the legal showing that was required under South Carolina law, the Court held that a common law marriage proponent must establish “an intention on the part of both parties to enter into a marriage contract…with such clarity on the part of the parties that marriage does not creep up on either of them and catch them unawares.” The evidence on this point, i.e., factors suggesting that neither of the parties considered themselves to be married, or held themselves out as such, also seemed to favor Mr. Hurt.

Another illustration of how difficult it can be to establish a common law marriage in a non-common law marriage state such as New York, involves one of my cases, which I’ll call A vs. A (I represented the claimant putative common law wife). In A vs. A, believing strongly in the case, we chose to first proceed solely under a common law marriage cause of action, forsaking in the first instance pleading non-marital causes of action, so as not to weaken the common law marriage claim. Subsequently, with permission of the Court, we added several non-marital causes of action to Mrs. A’s complaint. It was these claims, rather than the common law marriage cause of action, that ultimately served as her basis for recovery.

I am sure you will understand, from even a brief recitation of the facts, why we initially believed that Mrs. A’s case for common law marriage was a strong one. Most strikingly, Mr. and Mrs. A held themselves out as a married couple for more than thirty years. They also raised a child together (by then a grown woman), who was always led to believe that her parents were duly married. Each party wore wedding-style rings on the appropriate finger. In fact, no more than a handful of close friends and family ever knew the parties were not formally married. They were referred to in every writing, every joint account, every tax filing, etc., as Mr. and Mrs. A. And, Mrs. A had even legally changed her last name to A fifteen years earlier, upon becoming a naturalized citizen.

Further, Mr. A always told Mrs. A that they had no need to formalize their marital status, allegedly because they were in all respects a married couple. According to Mr. A, what was “his was hers”, and when they “got old”, they would get formally married. Needless to say, that day never came. Indeed, on the precipice of retirement age, Mr. A initiated their separation. By then, they’d established a more than comfortable lifestyle (including residence in a $1.5 Million penthouse apartment), a lifestyle that Mrs. A certainly couldn’t maintain on her own. And, all that Mr. A was initially offering to Mrs. A was a $50,000 per year stipend, for which in return he asked Mrs. A to quietly walk away from their thirty-plus year relationship.

The parties had also traveled widely, though they lived within the same borough of New York City for the entirety of their relationship. Yet, fatally to Mrs. A’s claim, the only common law marriage jurisdiction that they had traveled to was Washington, D.C. On this point, the Court’s decision, granting Mr. A’s motion for dismissal of the common law marriage cause of action, focused on the District of Columbia’s requirement that the parties to an alleged common law marriage must have done more than just cohabited as husband and wife; they must have cohabited after expressly agreeing, “in words of the present tense”, to become “man and wife”.

Rejecting our arguments, the Judge held that this agreement must have been actually and explicitly stated while the parties were physically present within the confines of Washington, D.C. It was inconsequential that the parties had explicitly made this kind of an avowal elsewhere. Because Mrs. A could not assert that she and Mr. A explicitly made this kind of an avowal, or even reiterated it, while physically present in D.C., her cause of action was deemed inadequate. Notwithstanding, Mrs. A prevailed in that portion of the Court’s decision that refused to dismiss several of her non-marital causes of action.

Conclusion
If you’ve concluded that your relationship might meet the legal criteria for common law marriage, I strongly recommend that you speak to a lawyer (preferably a family law specialist). And, for advice that you can rely on, you should plan to set aside at least a few hundred dollars for the cost of a consultation and additional legal research. The good news: if your relationship is found to be a common law marriage, you will generally have the same rights and obligations as every other divorcing spouse in this State.

On the other hand, if you’ve determined that your relationship is unlikely to qualify for common law marriage treatment (even though it may be one of significant financial interdependence), then I suggest that you read Part II of this article, which discusses a variety of other legal concepts that may be applicable to your living-together relationship.

© 2008 Jonathan K. Pollack all rights reserved

Jonathan K. Pollack is an attorney admitted to practice in New York State (1992), and a partner of the firm of Beldock Levine & Hoffman LLP, located in NY, NY (since 2002). His area of practice is matrimonial, family law, the rights of unmarried cohabitants, and alternative dispute resolution in these practice areas. He is a graduate of Columbia College, NY (1987), and Tulane Law School, LA (1992). He has served on the Association of the Bar of the City of New York Committee on Family Court and Family Law and on the Inter-Disciplinary Forum on Mental Health and Family Law. He is also a member of the Association for Conflict Resolution, and completed divorce mediation training sponsored by the Academy of Family Mediators in 1996. He has experience handling cases in Supreme and Family Courts in all five boroughs of New York City, as well Westchester and Nassau counties.

The firm’s website is at http://www.blhny.com

Mr. Pollack’s bio section is at http://www.blhny.com/attorney.cfm/ID/17

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