Florida Narrows Foreign Law Ban to Foreign Family Law

by Julian Ku

Florida’s legislature has just passed a bill that is an interesting variation on the wave of other foreign law bans that have been enacted in U.S. states.  Florida’s new law would ban the use of foreign law in Florida state courts if that law “contravenes the strong public policy” of Florida or if the “law is unjust or unreasonable.”  It also limits the use of foreign law in choice of law provisions in contracts or forum selection clauses under the same “strong public policy” standard.

In fact, Florida’s law is much narrower than it appears.  Apparently drafted with the help of the International Law Section of Florida’s Bar, the law only applies to matters “arising out of or relating to Chapters 61 and 88” of Florida’s statutory laws. And these turn out to be related to marriage, divorce, child custody, and child support.  So we are really down to prenuptial agreements and child custody agreements, for the most part.

Critics of these bills have called them pointless and possibly xenophobic as well. I am more on the “pointless” end of the spectrum, since I agree these laws do very little, although this bill is at least narrowly targeted at what the supporters of the bill are actually worried about: US courts enforcing agreements or requirements in family law matters based on foreign legal principles, especially Islamic law.  This same issue is actually causing a minor uproar in the UK.  Maybe they need a Florida bill there too?

In any event, I think this bill is pretty harmless, and it is actually narrowly targeted at what the supporters are worried about: “sharia law” in US courts.  It is certainly better than the previous version, which would have swept far more broadly. And I don’t think there should be any constitutional problems with this provision.


4 Responses

  1. Is all Islamic law “foreign” law?  Where is “Islamic law”?  If part of it is part of the law of foreign state X, then I suppose that Islamic law that is part of foreign state X’s law is “foreign law.”

  2. To the extent freedom of contract is available in that space, this is horrible.
    Also, won’t this be preempted by the FAA for arbitration clauses (a specialized form of choice of forum clause) to the extent permitted – a new kind of Concepcion. 
    What about a foreign decision on marriage, divorce, foreign adoption, child custody, or child support?  To what extent does this try to expand the public policy exception beyond what it was?  It is not like people do not get married or adopt kids abroad.  For example, there is no requirement to have a US court recognize that foreign adoption for purposes of the child adopted by one or two Americans abroad acquiring US nationality when they arrive in the United States with intent to reside permanently.  Is this going to reopen those things or give someone a way to reopen those things in a manner that is broader than what was there before that law was passed?  Admittedly narrower jingoism but still smell some jingoism.
    Miami now has an arbitration court.  I wonder if this will have a chilling effect on selection of Miami as a place of arbitration even though it tries to be cabined to the family law area.
    As to the supporters, religious law has been part and parcel of America for so long one wonders what this means.  To the extent sharia (Sunni with no religious central leader in the world or Shi’a)  or Catholicism (With a foreign religious central leader in the Vatican we call the Pope) might be involved,  I think a first amendment or equal protection challenge could be made (particularly with the expressed invidious intent for sharia).

  3. Well, I do think this law is not a big deal, in most conflict of law legislations in the civil law system we have the “public order” exception to applying foreign law; I would interpret this “strong public policy” as a similar principle.

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