Tag Archives: Family Law

Өв залгамжлалын тухай хуулийн зохицуулалт



Posted by ,

Өв залгамжлал гэдэг нь хүнийн амьд сэрүүн байхдаа бий болгосон хөрөнгийг өөрийнхөө хүсэл зоригийн дагуу эсхүл хуульд заасан журмаар өвлөн авахыг ойлгодог.

Монгол улсын хуулийн дагуу өвлөх эрхийг дараах этгээдэд олгодог байна. Үүнд:

  • Нөхөр, эхнэр /гэрлэлтээ бүртгүүлсэн байх/, төрсөн ба үрчилсэн хүүхэд, түүнийг нас барсны дараа төрсөн хүүхэд, төрсөн ба үрчилсэн эцэг эх.
  • Дээрх хүмүүс байхгүй эсхүл өвлөхөөс татгалзсан бол өвөг эцэг, эмэг эх, ах, эгч, дүүс, ач, зээ
  • Эдгээр хүмүүс байхгүй эсхүл өвлөхөөс татгалзсан бол ачинцар, зээнцэр.

Дээр заасан хууль ёсны өвлөгч нь өвлүүлэгч буюу нас барсан этгээдтэй нэг хаягт оршин суудаггүй байсан бол тухайн өв хөрөнгийг хүлээн авах хүсэлтээ өвлүүлэгчийн нас барсан өдрөөс хойш 1 жилийн дотор нотариатчид гаргаж бүртгүүлнэ. Харин нэг хаягт оршин суудаг байсан бол тухайн хүсэлтийг гаргах шаардлагагүй юм. Хүсэлт гаргаагүй бол өв хүлээн авахаас татгалзсан гэж үздэгийг анхаарах нь зүйтэй. Түүнчлэн, өв хөрөнгийг хүлээн авахаас татгалзах хүсэлтээ өвлүүлэгчийг нас барсан өдрөөс хойг гурван сарын дотор нотариатчид гаргаж бүртгүүлнэ.

Хэд хэдэн өвлөгчид байгаа тохиолдолд холбогдох өв хөрөнгийг хуваарилах тухай хэлцлийг нотариатаар гэрчлүүлэх боломжтой. Харин эвийн журмаар харилцан тохиролцоогүй бол тухайн өвийн маргааныг шүүхээр хянан шийдвэрлүүлэх юм.

Ингэхдээ өвлөнө гэдэгт зөвхөн өв ба түүнтэй холбоотой эрхийг авч байгаа явдаг биш бөгөөд өвлүүлэгчийн гүйцэтгэвэл зохих үүрэг хариуцлагыг ч мөн адил тухайн өвлөн авсан эд хөрөнгөнд ноогдох хэмжээнд хүлээдэг болно.

Өвлөгч нь өвлүүлэгчийн оршин сууц байсан дүүрэг, аймгийн нотариатчид “ Өвлөх эрхийн гэрчилгээ олгох тухай хүсэлт”-ийг гаргах ба тус гэрчилгээг өвлүүлэгч нас барсан өдрөөс хойш 1 жил өнгөрсний дараа олгодог юм.

Issues in Mongolia Employment: Employment of Minors



Posted by , , ,

Foreign companies operating in Mongolia are sometime surprised regarding local laws on employment of minors. In Mongolia, employment of minors, is legally acceptable under limited circumstances and with high protections required in favor of the young employees.

There are a number of legislations regulating the child employment In Mongolia. There is the Labour Law, as well as The Law on Protection of Child Rights, and the relevant international conventions. Mongolia was one of the first countries to ratify the Convention on the Rights of the Child in 1990. Minimum Age Convention, 1973 (No. 138) and Worst Forms of Child Labour Convention, 1999 (No. 182) were also ratified by Mongolia.

In Mongolia, a person at the age of 16 is allowed to enter into an Employment Agreement.  In addition, a person of age 14-15 years of age may be hired under the consent of the parents or guardians for the purpose of acquiring vocational training or work experience.

However, minors are allowed to be hired only in approved sectors. The Minister in charge of labour issues recently renewed the list of positions at which minors not allow to be employed, namely alcohol, tobacco related, plastics industry, construction, hotel, nightclub, bar, casino gambling, entertainment venue and generally jobs with hazardous labour conditions.

Horse racing, a traditional Mongolian sport, often sees children as young as five riding horses in the races. The children train the horses at even younger ages. Such activities have come under criticism by international child protection organizations for being a hazardous activity for these children, but due to the traditional nature of the sport, it is not likely that it will be restricted.

The employer of a minor is obligated to protect the health of minor employees by providing a medical examination twice a year. Furthermore, it is prohibited to require the minor employees to carry or lift load exceeded the permitted amount, and to work overtime, on public holidays or weekends. Violations may result in fines to the employer in addition to a requirement to compensate the young employee for with.

Adopting a Mongolian Child: Cause for Refusal, Termination and Monitoring Systems



Posted by ,

We are continuing our series on international adoption of a Mongolian child. In our first post, we reviewed the legal framework of the international adoption system. Our second post listed the specific steps required to apply for adoption of a Mongolian child. In this post we will take a closer look at potential legal grounds for a refusal of the adoption application, and we will review the monitoring mechanisms in place to ensure the adoption is a success, and beneficial to the child.

An application for international adoption will be rejected if it is found that false information or false documents have been submitted or the information and documentation provided in the application does not comply with the real circumstance of the adopting parents. This is simple and expected, potential adoptive parents must be truthful and forthcoming on their adoption application papers.

The application may also be denied if the examining officers feel that the prospective parent’s reasons for the adoption are uncertain or suspect; or where the adoptive parents’ ideas and goals for the adoption and subsequent rearing of the child are divergent and their opinions are not unified.

After the adoption is approved, a bilateral or trilateral agreement shall be signed by the adoptive parents and an adoption agency in compliance with the UN Convention on the Rights of the Child, this is required to finalize the adoption legally. The contract provides detailed information on adoptive parents’ obligation to provide the child with normal opportunities for growth, safety, education, and protection of rights.

Normally, the adoption agreement with include provisions requiring the adoptive parents to submit updated information about the child to the Diplomatic Representative Office of Mongolia each year until the child reaches the age of 16. If the adoptive parents change their place of residence, they are obliged to immediately notify the competent authorities of their country of residence and Diplomatic Representative Office of Mongolia. Additionally, the intermediary adoption agency will responsible to organize visitation to ensure the adopted child’s situation.

Over the course of the adoption, the Immigration Agency of Mongolia will maintain the right to terminate the adoption arrangement if it is proven that the adoptive parents consciously lost the child, or engaged in any activity not beneficial for the child’s best interest, such as physical, mental, or sexual abuse or neglect of the child, or drug use by the parents. The adoption will also be canceled if the parents lose the right to act as adoptive parents under the domestic laws of their country of residence, or where the child’s rights as set out in the adoption agreement, or local laws regarding child protection are violated.

Adopting a Mongolian Child: International Adoption Procedure



Posted by ,

Adoption of a Mongolian child by a foreign individual or couple is a complex procedure requiring several stages. As we mentioned in our previous post, the adopting parents are firstly required to obtain approval for adoption in their home country.

The prospective parents must then submit their adoption application via their home country’s adoption system, which will forward the application to the appropriate body in Mongolia. If a prospective foreign parent has resided in Mongolia for over six months, the international adoption application shall be submitted directly to the government central administrative body in charge of population matters of Mongolia (the “State authority”).

The applicant must submit a report containing information on their personal characteristics, presenting their suitability of the adoption, their educational status, information regarding their family background and health information, their history of the disease, income and social status. The adopter must also describe their reasons for adopting.

After review and approval of the international adoption application the State authority will select a probable adoptive child and initiate contact with the prospective adoptive parents through the international adoption agency.

The Immigration Agency of Mongolia will review the relevant adoption documents, and will examine and make a decision on the condition of the child and suitability for adoption. An adoption commission will conduct a face to face interview with the prospective adoptive parents, as required by the Mongolian “Regulation on the Procedure to Interview Foreign National Requesting Adoption of a Mongolian Child”. The regulation is approved and implemented directly by the head of the Immigration Agency of Mongolia.

The purpose of interview with the prospective adoptive parents is obtain a better understanding of the parents ideas, goals, the reasons for adoption, and to gauge their parental fitness, education, employment, financial prospects, understanding of the responsibilities of adoption, understand their family history, determine future plans. The interview will also assess the prospective parent’s ability to care for the health of adoptive child, the appropriateness of the parent to match the characteristics of the child, as well as ensuring the adoptive parent’s attitude toward and ability to socialize and educate the child.

The final decision to approve the international adoption will be made by the majority vote of the members of the commission after the interview with adoptive parents. If the adoption is approved, the Head of the Immigration Agency of Mongolia will issue an approval order based on the decision.

Throughout the process, it is beneficial for prospective parents to have a local contact or legal support to liaise with government officials to assist in responding to questions or concerns of the reviewing officials.

Adopting a Mongolian Child: The International Adoption Framework



Posted by , , , ,

Every so often, our Mongolian lawyers receive an inquiry from a foreign couple, usually from the USA or Europe, seeking to adopt a Mongolian child.  When we get one of these inquiries, the first thing we do is explain some of the background to the international legal issues to the couple, then we get into the specifics of international adoption in Mongolia.

The adoption of a Mongolian child by a foreigner is governed under a few international Hague Conventions and by the Mongolia Family Law, Law on Legal Status of Foreign Nationals, and specifically by the Regulation on Procedure for Adoption of a Mongolian Child by Foreign Nationals.

From the international perspective, Mongolia has ratified the “Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption” and the “United Nations Convention on the Rights of the Child”. These two international conventions set specific rules for the protection of children and outline the rights and responsibilities of countries as regards international adoption.

In the event of suitable adoptive parents cannot be identified in the country of origin of the child, international adoption is allowed. Under these conventions, the best interests of the child is the primary consideration, and is a basic right of the child to be adopted and must be confirmed by the prospective adoptive parents. In an international adoption, the prospective adoptive parents must meet the legal adoption requirements of their country of residence. The adoption must also meet the same safeguards and standards as applied to internal adoptions within the child’s country of birth.

So, for foreign couples considering adoption of a Mongolian child, the first step will be to obtain adoption approval in the country of the couple’s current residence. In our next post we will review the specific international procedures, and local Mongolian process for adoption.

Human Rights Development in Mongolia



Posted by , , , , ,

Mongolia Foreign Affairs Minister Ts.Munkh-Orgil recently spoke at the United Nations Human Rights Council where he presented the current human rights policies and measures undertaken by the Government of Mongolia.

Human rights are essential values enshrined in the Constitution of Mongolia, which was one of the original countries to implement the Millennium Development Goal Number 9 as a national plan to improve human rights and promote democratic government.

The Mongolian government’s 2016-2020 action plan places a great priority on continued legal reforms based on the preservation of human rights. Mongolia is working toward elimination of the death penalty, and amending the criminal law and other laws to protect the rights of children and the elderly, as well to protect against domestic violence; combat human trafficking; enhance the transparency, accountability, and independence of the judiciary; and fight corruption in the public sector.

Mongolia’s commitment to democracy and fairness is a major positive point for many foreign businesses and NGOs operating in Mongolia. As the first international law firm established in the country, LehmanLaw Mongolia is excited to see continued progress and development in this area among many others in Mongolian law and society.

Basics of Maternity Leave in Mongolia



Posted by , ,

As with most countries, Mongolia provides special benefits for expecting and new mothers. The law provides for a period of “Maternity Leave” as well as a period of “Baby Care Leave.” Understanding the differences of each of these leave periods is critical for foreign companies operating in Mongolia.

Maternity Leave is designated under Mongolian law as a required period of 120 days. This Maternity Leave period is intended to cover 60 days prior to birth and 60 days after delivery. During this legal Maternity Leave period, the Mongolian Social Insurance system is responsible for payments to the new mother. Maternity Leave is not available for male employees.

The Baby Care Leave is granted to all mothers (and single fathers) with children under 3 years, and is optional at the employee’s discretion. During the leave period, the Employer is obligated to pay required monthly Social Insurance payments to the Social Insurance Fund on behalf of the employee. The employer is obligated by law to accept the employee in the same employment position or in a new position when the employee returns to work at the end of the leave.

Mongolia Set to Make Domestic Violence a Criminal Offense



Posted by ,

The Mongolia Law on Domestic Violence and Abuse was approved in 2004. However, the rate of domestic violence has not decreased. Unfortunately, rates of murder and the involvement of children in domestic violence have increased. As of the 1st half of this year, 764 cases of domestic violence have been reported, an increase of 30.4% from last year.  From 2010 through 2016, 95 people have lost their lives due to domestic violence. Research conducted by NGOs reveals that the level of unreported domestic violence could be 5 times higher than the official reported number.

The Law on Domestic Abuse and Violence had been revised and amended after 12 years. The revised edition was expected to be come into force on September 1, 2016 along with amendments to the Criminal Code, but was delayed. The decision to delay the law faced strong resistance by social groups seeking to protect thousands of women, children and elderly. As a result of social opposition, the government decided again to present the revised edition of the Law on Domestic Abuse and Violence to the Parliament on September 09, 2016.

The draft law was created with the goal to make domestic abuse a criminal offense and to allow for appropriate punishments for the promotion of safety for victims and prevention of the recurrence of domestic violence. Under previous laws, domestic abuse had been considered a minor offense punishable by a fine. If the revised edition is approved, domestic abuse will be a raised to be criminal offense. The revised edition of the Law on Domestic Violence and Abuse will include a punishment of 1-3 months of imprisonment for domestic violence, 3-24 months of imprisonment for torture. Under the new law, a neighbor will be legally responsible to report domestic violence to the police if they are aware of it.

The revised edition of the Law on Domestic Violence and Abuse is expected to be enacted at the beginning of the Parliament’s fall session this year.

No Dual Citizenship Allowed in Mongolia



Posted by , ,

Like all countries, Mongolia has specialized laws regarding immigration and nationality. The Mongolian Constitution indicates that the grounds and procedure for determining Mongolian nationality, or for acquisition or loss of citizenship shall be defined by the law.

The Current Law of Mongolia on Citizenship was enacted in 1995 and it has been updated four times since then. According to the law, Mongolian citizens shall not be allowed to hold citizenship of a foreign nation and maintain their Mongolian nationality. Further, if a foreigner wishes to acquire Mongolian citizenship, he or she is required to give up any prior citizenship.

Under Mongolian Law, there are four ways an individual may become a Mongolian Citizen:

  • If both of the parents of a child are Mongolian then the child is automatically Mongolian. It doesn’t matter where the child is born. (In some circumstances it is possible for Mongolian parents living abroad to request the child become a citizen of a foreign country.)
  • A child born to one Mongolian parent within the territory of Mongolia is also automatically Mongolian.
  • A child who is within the territory of Mongolia whose parents are not identified is designated a Mongolian citizen.
  • Individuals of foreign nationalities may apply for citizenship via the President’s office, or through a Mongolian embassy.
  • Mongolians who are adopted by foreigners maintain “the right to choose his/her own nationality” according to the Family law of Mongolia.

Interestingly, approximately 16 thousand Mongolian citizens report having a dual citizenship, with most of them are women and children. Over the last 20 years an estimated 59,000 citizens withdrew their Mongolian citizenship while citizenship was awarded to only 221 individuals (not including new births within Mongolia).

A total of 250 Mongolian children have been adopted by foreign citizens, including family members. There are concerns that the Law should be amended to allow an adopted child to maintain his/her native citizenship until turning 18 years old. Until this change is made, Mongolian law will not be aligned with international convention regarding rights of children.

For this reason, the President, Ts.Elbegdorj has proposed amendment of Law of Mongolia on Citizenship, and has submitted relevant drafts legislation to the Parliament for consideration. It is expected that this change will be officially passed later this year.

Enforcement of a Foreign Judgment in Mongolia



Posted by , ,

We have recently handled a litigation case involving enforcement of a foreign judgment in Mongolia. While, Mongolia has no specific detailed law dedicated to addressing issues in connection with enforcement of foreign court decisions, there are provisions set forth in Article 194.1 of the Civil Proceeding Law stating, “Procedures for the enforcement of Mongolian and foreign Courts decisions are determined by the legislation of Mongolia, the international treaties Mongolia has concluded with a foreign country or to which is a party.” Chapter 11 of the Law on Enforcement of Court Decisions also confirms enforcement of a foreign court judgment is regulated by the laws and regulations of Mongolia, by a treaty entered with the foreign country and by international treaties to which Mongolia is party.

 In Mongolia, both foreign and domestic persons are entitled to request enforcement of a foreign court decisions in the territory of Mongolia. The Court Decision Enforcement Agency is entitled to enforce court decision of foreign courts and international arbitration if so specified in the international treaty.

 In international civil procedure matters, Mongolia has ratified the 1954 Hague Convention on Civil Procedure. Furthermore, Mongolia has concluded a Bilateral Treaty to Mutually Provide Legal Aid in Civil and Family Cases with several countries, including Peoples Republic of China, Russia, France, Bulgarian, Poland, Ukraine, Hungary, India and both North and South Korea. Unfortunately, Mongolia has not signed a treaty with some of the larger developed countries, including the United States of America, United Kingdom, Japan, Australia and German, with respect to mutual recognition of court judgments.

 In order to be enforced in Mongolia, a foreign court decision must first be confirmed and accepted by the court that made the decision to compel enforcement in Mongolia. Further, the foreign court decision must be officially translated into Mongolian and delivered to the court along with relevant evidences in accordance with the proper regulation under the Bilateral treaty between the countries or international treaty.

If any of the following situations would occur pursuant to the enforcement of a foreign court judgment here in Mongolia, a foreign court decision will not be enforced in Mongolia:

  • if  damage to the independence and national security of Mongolia may occur;
  • if it contradicts commonly accepted norms;
  • if there is a valid court decision made by Mongolian courts on the case in question;
  • if the court decision is related to litigation that belongs to the special jurisdiction of Mongolian courts;
  • if the court decision is not yet validated; or
  • statute of limitation for enforcing a foreign court judgment has lapsed.

All of that said, as a practical matter, Mongolian courts rarely enforce foreign court judgments, though it is possible. Foreign court decisions related to family issue, specially divorce, and the child custody and maintenance have increasingly been enforced over the past two decades.