International Family Law Views – Divorce and Diplomatic Immunity
February 4, 2020
Although rare, divorces that involve some level of diplomatic immunity still occur, likely in no lesser proportion to that group as the ratio that occurs in the general population. And that group is larger than one might think. It comprises the foreign diplomatic corps in Washington, D.C. and New York City, the UN diplomatic corps, and the smattering of other various foreign officials who enjoy some form of immunity, and often their family members. A Department of State source has estimated that there are over 100,000 representatives of foreign governments, including dependents, in the United States. For these families, divorce entails another level of analysis absent from divorces in the general population. This additional analysis includes whether, to what extent, when and where is one or both of the parties immune from the courts’ authority to entertain a divorce lawsuit?
In this analysis, “diplomatic immunity” is a bit of a misnomer. While true that diplomats enjoy immunity from legal process, so do other categories of foreign dignitaries. The source and scope of immunity can be different for each category of dignitary. The immunity of diplomats is governed by the Vienna Convention on Diplomatic Relations. Similarly, the immunity of consular officials is governed by the Vienna Convention on Consular Relations. Certain officials of the United Nations and of other international organizations (World Bank, IMF, OAS), and some senior officials from country permanent missions to these organizations, enjoy immunity similar to that of diplomats. This is often based on domestic legislation and/or executive order. One example is the International Organizations Immunity Act.
Some of these sources allow for different levels of immunity for various types of dignitaries within their ambit. For example, the Vienna Convention on Diplomatic Relations specifies at least three different levels of immunity, depending mainly on the type of duties conducted by the covered official. These can be described in simple terms as full civil and criminal (generally for diplomatic level officials); civil only (generally for administrative and technical staff); and official acts only (generally for service staff). And each of these descriptions has exceptions. It thus becomes necessary to dig even deeper than just whether immunity exists, and determine which level of immunity applies to the specific individual in each divorce situation.
Another consideration is when does the immunity apply. Generally, immunity ends once the official leaves the country or after a reasonable period of time to do so once the official function ends. Thus, a diplomat deciding to remain in the United States after the end of official duties, for any of a host of reasons, might become subject to a divorce suit with no immunity. A related complication is that immunity can be waived, but generally only by the sending country, only expressly, and usually through the ambassador in conjunction with the U.S. Department of State. Moreover, the waiver of immunity from jurisdiction in a civil proceeding does not imply waiver of immunity with respect to execution of the judgment. While unusual for full diplomats, in some circumstances it might be appropriate and possible to obtain a waiver of immunity for purposes of a divorce. And the Vienna Convention on Diplomatic Relations provides an exception to immunity from counterclaims related to the original claim if the diplomat institutes the civil action. The main consideration, however, is that a diplomat might be unable to avoid the effects of immunity even if he or she wanted to proceed with a U.S. divorce.
The physical, or geographic, scope of immunity can sometimes be a determining element. Again generally, immunity extends only in the country to which the covered individual (or family member) is accredited for his or her official duties, and in third countries during transit to or from the home country. Thus a diplomat accredited to the United States might still be subject to divorce in his or her home country, an option that should always be considered. Similarly, a diplomat who served in the United States, then went to another post, perhaps leaving family in the U.S., might be subject to all aspects of a U.S. divorce if served while visiting family here.
In conclusion, some form of immunity might apply in the United States to a relatively important segment of foreign officials and their family members who find themselves in a divorce situation. When that is the case, additional research and planning is required. In some situations, a U.S. based divorce might be impossible. In others, work-arounds might be possible, even if they require more time and effort than in the non-immunity case. Regardless, careful analysis by informed legal counsel is essential in all these cases.
© 2020 by Hadrian N. Hatfield
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