Arkansas

El Farra v. Sayyed

204 Cal. App.3d 1389 (1988)

Facts

In January 2001, Monir El Farra was hired as an imam at the Islamic Center of Little Rock. His employment contract included a clause stating that the employment could be terminated with a unanimous vote from the mosque’s Executive Committee and Board of Directors upon a 60 day notice “on valid grounds according to Islamic Jurisdiction.” On May 15, 2003, the board issued a warning to the appellant due to alleged offensive behavior by the appellant during his khutbas. On May 30, 2003, the Executive Committee sent El Farra another letter stating that the appellant’s misconduct during khutbas were un-Islamic, and they placed him on probation. On July 17, 2003, the Executive Committee and Board of Directors unanimously voted to terminate his contract. El Farra filed a complaint to the Circuit Court for defamation, interference with a contract, and breach of said contract. The Islamic Center filed a motion for summary judgment, which was granted by the circuit court. El Farra appealed this decision.

Issue

Whether or not the Arkansas circuit court could exercise jurisdiction over a dispute within a religious institution.

Whether or not the Arkansas circuit court could rule on a matter that would determine religious representatives within a religious institution.

Ruling

The Appellate Court upheld the Circuit Court’s ruling stating that it lacked subject matter jurisdiction. The Appellate Court concluded that ruling on the Center’s choice for religious representatives would be in violation of the Islamic Center’s First Amendment rights. The Court also held that “the First Amendment protects the act of decision rather than the motivation behind it,” thus upholding that the Court does not have jurisdiction to rule over whether El Farra was terminated for secular or Islamic reasons.

California

In re. Dajani

204 Cal. App.3d 1389 (1988)

Facts

In Jordan in 1982, Awatef and Nabil Dajani got married by proxy in Jordan. Allegedly, the marriage contract stated that the wife would receive 3,000 dinars plus an additional 2,000 in cash or furniture at either the death of the husband or the dissolution of the marriage. In 1983, the wife moved to Orange County to reside with her husband. Two years later, the wife petitioned for divorce. The main issue resided with whether or not the husband is required to give the wife the pre-agreed upon dowry. According to the expert the husband brought before the court, who was an Imam, a wife who initiates divorce proceedings forfeits her right to a dowry under Islamic law. The Circuit Court ruled in favor of the husband, stating that under the testimony provided, the wife is not entitled to receive her dowry. The wife petitioned to the California Appellate Court.

Issue

Whether or not the Circuit Court’s decision to deny the wife the dowry was an “unjust result”.

Ruling

The Appellate Court affirmed the Circuit Court’s decision under the grounds that the marriage contract can only be viewed as “profiteering by divorce” and thus cannot be enforced by the Court since such a contract is against public policy.

Karson v. Soleimani

Nos. B216360, B219698 (Cal. Ct. App. 2010)

Facts

Mr. Ardakani died in Iran without a will. His entire estate was based in Iran. At the time of his death, he was survived by his estranged second wife, Ms. Soleimani, and their daughter, Karson. Ardakani and Soleimani were members of the Baha’i faith, a faith persecuted by the Iranian government. Soleimani and Karson had fled Iran, and Karson had been granted asylum in the U.S. in 1997.

After the funeral, there was dispute between the mother and the daughter over Ardakani’s estate. Karson was advised by Soleimani’s counsel not to file her own claim in the Iranian probate court because it could (a) delay the proceedings; and (b) the Iranian court may discover Ardakani’s faith, which could make it difficult to recover his estate. The attorney promised to deliver Karson’s inheritance if she obliged, but never delivered on his promise. After a number of other disputes, Karson initiated an action in California, citing contract and fraud claims. Soleimani filed a motion to dismiss for forum non conveniens. The trial court granted Soleimani’s motion, claiming Iran was a more suitable forum.

Issue

Whether or not Iran is a proper forum for contract and fraud claims regarding an Iranian man’s intestate estate.

Ruling

The appellate court reversed the trial court’s decision. The court held Soleimani did not meet the burden of proving California was an inconvenient forum; in fact, Soleimani had lived in California for fifteen years at the time litigation was initiated. The court also held, among other reasons, that Karson would not have due process in the Iranian court due to Iran’s condemnation of the Baha’i faith.

In re. Marriage of Sawaya

A024984 (Cal. Ct. App. Mar. 24, 1986)

Facts

The parties were married in Lebanon in January 1970, but moved to the U.A.E. in 1976. They lived there until July 1982, when the wife unilaterally removed the children to California. In September 1982, the wife filed a petition for legal separation and requested custody of the children. The husband came to visit the children in California, and was served with the petition at that time. The trial court ruled it did not have jurisdiction over custody because the children had only been in California a brief time. Husband then obtained custody judgments in both the U.A.E. and Lebanon.

In December 1982, the husband returned to California and filed a motion to enforce the judgment of the Abu Dhabi Sharia Court. The trial court determined, however, that wife had not received notice or the opportunity to be heard in the Abu Dhabi Sharia Court and thus denied husband’s motion to enforce. The husband tried once again to enforce the Abu Dhabi Sharia Court in the California Superior Court, but was denied on the grounds of res judicata.

On May 16, 1983, the wife filed an amended petition for divorce and custody, among other relief. Husband objected and this time moved to enforce the Lebanese custody decree. Wife objected on the grounds she had not been properly served or received notice and that husband’s prior motions to enforce the U.A.E. custody decrees under similar circumstances had been denied. The trial court once again ruled in the wife’s favor.

Issue

Whether or not California has subject matter jurisdiction over children only residing in the state for a short time, and whether the trial court erred by not enforcing either the U.A.E. custody decree or the Lebanese custody decree obtained by husband.

Ruling

While the appeal was pending, the trial court declined to exercise subject matter jurisdiction over the children, rendering that issue moot.

The appellate court found no supporting evidence in the record to conclude wife had been denied due process in the Lebanese child custody action. Wife was given reasonable notice of the Lebanese proceedings and had opportunity to be heard in the Lebanese court, though declined to do so. Further, the appellate court found the Lebanese custody decree may have been ex parte to begin, but became final and enforceable after service upon the wife. The custody order itself provides: “This order in default shall be interim and will not be enforceable except after its notification to the defendant who may oppose it within a period of 15 days, the court will then nullify the ex parte interim order and will hear both parties and pronounce a final judgment in the case.” Wife failed to oppose the order, despite being served with notice; the final Lebanese custody decree was entered on June 30, 1983.

Further, the Lebanese court took the best interests of the children into consideration in determining custody. The appellate court found the Lebanese court’s criteria in determining custody was not so different from California custody cases. The trial court then, pursuant to the UCCJA, should have granted comity to and enforced the Lebanese custody decree.

In re. Marriage of Shaban

88 Cal.App.4th 398 (2001)

Facts

The parties married in 1974 in Egypt under Islamic law and moved to the United States in the 1980s. The parties divorced in 1998. In divorce proceedings, the husband sought to introduce parol evidence in the form of expert testimony that would prove that the document the husband and the wife’s father had signed was in actuality a prenuptial agreement that the husband and wife intended to be governed under Islamic law. The trial court refused to admit the parol evidence and divided the property according to California Law. The husband appealed the decision.

Issue

Whether parol evidence is admissible in divorce proceedings where the statute of frauds cannot be satisfied because the document in question is too uncertain in its terms and conditions.

Ruling

The appellate court affirmed the trial court’s decision, holding that the document signed by the parties was “hopelessly uncertain as to its terms and conditions” to satisfy the statute of frauds on its own. The court noted that while parol evidence is admissible, “the statute of frauds requires that the contract itself not be the product of parol evidence.” The court further explained that “had the trial judge allowed the expert to testify, the expert in effect would have written a contract for the parties” because the document itself did not provide any substantive terms or conditions. Thus, the trial court was correct in refusing to allow the husband to introduce the expert testimony.

In re. Marriage of Vryonis

202 Cal. App. 3d 715

Facts

The parties, both professors at UCLA, met in 1979. Wife is an Iranian citizen and a Shi’i Muslim; husband was not Muslim. Although the parties dated, the wife told husband he could not marry her due to their respective religions. On March 17, 1982, the parties were involved in a private marriage ceremony, which, according to wife, was a “Muta” marriage. The parties did not hold themselves out as husband and wife; they retained separate residences, did not inform their families of the marriage, did not commingle their finances, and filed separate tax returns. In September 1984, the husband married a different woman.

On October 15, 1984, the wife filed for dissolution. The husband filed a motion to dismiss, alleging their marriage was not valid. The trial court during a bifurcated hearing found the parties had a putative marriage, as wife had a good faith belief the marriage existed, but no records were made and there were no witnesses to the marriage, and husband never intended the marriage to constitute a valid California marriage.

Issue

Whether a “muta” marriage between a Shi’i Muslim wife and a non-Muslim husband, where they did not obtain a marriage license and there was no record or witness of the marriage, constitutes a putative marriage.

Ruling

The appellate court found the trial court erred when determining the wife’s “good faith belief in the marriage” was enough to constitute putative marriage status and reversed. “If the trial court based its putative marriage finding on Fereshteh’s belief she had celebrated a valid Muta marriage, the ruling was error because the required good faith belief is in the existence of a lawful California marriage. If the trial court found Fereshteh had a good faith belief she was validly married under California law, the ruling was error because the requisite good faith belief must have a reasonable basis.” The private marriage ceremony was held between the parties only, with no solemnization and no attempt to obtain a marriage license. There were no attempts made to meet the statutory requirements of a valid California marriage, and thus there is no reasonable basis behind the wife’s “good faith belief in the marriage.” Further, the parties never held themselves out as husband and wife. It was only when the husband told wife he would be marrying another woman that the wife told her family and friends of the purported marriage.

Connecticut

Hage-Sleiman v. Hage-Sleiman

2011 Conn. Super. LEXIS 1960 (Conn. Super. Ct. July 27, 2011)

Facts

The parties were married in Lebanon on August 11, 2003. They had signed a marriage contract acting as a prenuptial agreement, which stated: “In the event of the divorce, annulment, dissolution of marriage or separation, each party agrees to and hereby waives, relinquishes, and releases the other from any duty or obligation to support such other party may otherwise have arisen but for this Agreement, and no claim or demand for support, maintenance or alimony shall be made, now or in the future. Wife filed for divorce on August 16, 2011 and requested enforcement of the prenuptial agreement, among other relief.

The husband filed a motion to dismiss, alleging the parties had already been divorced in Lebanon. He alleged the wife herself had brought a divorce action in Lebanon, and a certificate of divorce was issued on January 27, 2010.

Issue

Whether the Connecticut Superior Court has jurisdiction to dissolve a parties’ marriage after wife had already received a divorce in Lebanon, although neither party was present, and whether the trial court could enforce the parties’ Lebanese prenuptial agreement.

Ruling

The husband contended the Lebanese court had proper subject matter jurisdiction to dissolve the parties’ marriage, even though neither party was present in Lebanon, as he was domiciled there during the pendency of the divorce action and fully intended to return and remain there permanently.

The trial court concluded that while the parties were married in Lebanon in 2003, both parties had resided in Connecticut, even at the time the divorce action was pending in Lebanon. Since the husband was not a domiciliary of Lebanon at the time of the divorce action, the Connecticut Superior Court could not grant comity to the Lebanese divorce.

Further, the defendant argued estoppel to prevent the wife from attacking the validity of the Lebanese divorce, as she herself brought the divorce action in Lebanon. The trial court however, concluded neither party had relied on the invalid Lebanese divorce as neither party had remarried, and the wife had received no benefits from that divorce “which should estop her from now challenging the dissolution in this state.” The court ruled in favor of wife and would not grant practical recognition to the Lebanese divorce decree.

Maklad v. Maklad

28 Conn. L. Rptr. 593; 2001 WL 51662 (Conn Super. Ct. Jan. 2, 2001)

Facts

The parties were married in Egypt, then moved to Connecticut, where they lived for 16 years. Four children were born to the marriage, and all four of them were dual citizens of both Egypt and the U.S. In September 2000, the husband travelled to Egypt with the three youngest children without knowledge or consent from the wife. He then obtained an Egyptian divorce certificate. A month later, the wife filed for divorce in Connecticut, and the trial court granted wife temporary custody of all four children.

Issue

Whether the Egyptian divorce judgment should be given comity in Connecticut.

Ruling

The trial court denied the husband’s motion to dismiss and refused to grant comity to the Egyptian divorce decree. Wife was given no notice of the Egyptian divorce proceedings and was denied due process. Further, neither party was domiciled in Egypt at the time of the divorce action.

Delaware

Saudi Basic Industries Corp. v. Mobil

866 A.2d 1 (Del. Supr. 2005)

Facts

Saudi Basic Industries Corporation (SABIC) formed a joint venture with Mobil (the “Yanpet joint venture”) to manufacture polyethylene in Saudi Arabia. By agreement, no parties would profit at the joint venture’s expense. “the joint venture agreements forbade any partner from charging a ‘mark-up’ on technology procured from a third party and sublicensed to the joint venture.”

In 1980, SABIC procured licensing from Union Carbide Corporation (UCC) for Unipol PE technology, and informed Yanpet that SABIC would sublicense the technology to Yanpet “dollar for dollar.” Instead, over the time span of twenty years, “SABIC charged Yanpet sublicense fees and royalties that were substantially higher than what SABIV was paying to UCC under the SABIC/UCC License Agreement.” Upon discovery of this breach, ExxonMobil filed suit.

Issue

Whether the 1987 letter agreements, wherein ExxonMobil and SABIC renegotiated the joint ventures license fees, operated to release all payment-related claims that ExxonMobil could have brought against SABIC.

Whether the Delaware statute of limitations (three years) bars ExxonMobil from filing suit.

Whether SABIC had committed the Saudi tort of usurpation (“ghasb”).

Ruling

Professor Wael B. Hallaq testified as an expert witness on Saudi Arabian law. He opined that the 1987 Letter Agreements, under Saudi law, would not affect ExxonMobil’s claims. Professor Hallaq testified that “under Saudi law., a release regarding the ‘object of the contract’ (here, technology) cannot be construed as a release of claims relating to payment.” SABIC’s own expert opined that “even ja’iz partnership contracts remain binding on the partners unless and until the partners reach agreement on the changed terms. That even never occurred here.” With the help of the expert testimony, the trial court concluded “the unambiguous language of those Agreements limited the scope of any release to technology-related claims and did not include payment-related claims.”

In regard to the statute of limitations defenses, both parties had stipulated that Saudi law was applicable in this suit. Even though Delaware law provided a three year statute of limitations, “under substantive principles of Saudi law, ExxonMobil’s claims were property rights that could not be barred by the passage of time.

SABIC argued “ghasb” was rarely awarded in the Saudi legal system, and also that such a tort must have been done “forcefully and with the victim’s knowledge.” SABIC argued since ExxonMobil was not aware of the upcharges, SABIC could not have committed “ghasb.” Nevertheless, a jury found in 2003 that SABIC had committed the Saudi tort of usurpation (“ghasb”) against both Mobil and Exxon and awarded damages totaling over $416 million.

Florida

Akileh v. Elchahal

666 So.2d 246 (Fla.App. 2 Dist., 1996)

Facts

The parties were married on December 26, 1991 in the state of Florida according to Islamic Law and executed an Islamic Marriage Contract. The Contract provided that the sadaq, the Islamic prenuptial agreement, be $1.00 immediate payment and $50,000.00 deferred payment. The document was executed by the parties, two witnesses, and the religious Imam.

One year after being married, the wife contracted genital warts from the husband, who had never disclosed his illness to her. The wife filed for divorce, seeking enforcement of her Islamic Marriage Contract that required the payment of the postponed $50,000.00 dower. The trial court held that the sadaq was unenforceable because it lacked consideration and there was no meeting of the minds. The trial court based its holding on the principle that the sadaq is intended to protect a woman from an unwanted divorce. Since the wife willingly requested a divorce, she would not be entitled to a postponed demand. The wife appealed the decision on the basis of her Contract.

Issue

Whether a prenuptial agreement is enforceable where there was no meeting of the minds at the time of execution and the parties subsequently married.

Ruling

On appeal, the appellate court reversed the trial level decision. The appellate court held that “marriage is sufficient consideration to uphold an antenuptial agreement” and therefore, the contract between the parties was valid and enforceable. The court further noted that the essential terms of the contract were agreed upon between the parties “in contemplation of a forthcoming marriage.” The alleged differences in interpretation placed upon the sadaq by the parties had no impact on the enforceability and validity of the document. Specifically, the court stated that “a subsequent difference as to the construction of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet with respect thereto.” Generally, the court is hesitant to void a contract for indefiniteness when one party performs under the contract. Thus, the wife was entitled to the postponed dower.

Betemariam v. Said

48 So. 3d 121 (2010)

Facts

On January 1, 2004, the parties were married in a Muslim wedding ceremony in Virginia, though the plaintiff was not Muslim. The parties received a marriage certificate, but did not obtain or file a marriage license. The parties thereafter moved to Florida, where they resided with their twin children.

The plaintiff filed for divorce in 2007. The defendant moved to dismiss, claiming the parties were not legally married.

Issue

Whether the parties’ Muslim wedding ceremony was a valid marriage in Virginia.

Ruling

The appellate court affirmed the trial court’s ruling that the parties’ marriage was not valid, and thus had no authority to award alimony or order equitable distribution of assets. The appellate court concluded that Virginia, where the ceremony was performed, would hold their unlicensed marriage was void ab initio as the parties had not obtained a marriage license in any of the states in which they had resided. Because both parties had been married previously, the court discounted any claim of lack of knowledge of the licensing requirement.

Illinois

Lokhandwala V. KFC

Case No. 17-cv-5394

Facts

Plaintiff, Afzal Lokhandwala, owns eight KFC franchises in Illinois, all operating under an identical franchise agreement with defendant, KFC. In 2002, when he opened his first KFC franchise, he discussed selling Halal chicken. KFC’s franchise director, Ken Taft, promised that the corporation would approve selling Halal chicken.

With Defendant’s knowledge and permission, Plaintiff began selling Halal chicken provided from a KFC approved Halal meat processor. Selling Halal chicken was so profitable that it prompted Plaintiff to open five of his franchises in areas with high Muslim populations.

In late 2016 or early 2017, Defendant demanded that Plaintiff stop marketing his meat as Halal pursuant to a 2009 KFC policy that bars franchises from making religious dietary claims about its products.

Defendant also requested that Plaintiff remove all signs describing the meat as Halal and remove all signs with information on the meat processing company. Plaintiff asserts that those signs are required under Illinois law since he registered his franchise as a Halal Registered Broker.

Issue

Whether defendant’s demand constitutes a breach of contract and promissory estoppel.

Ruling

Under Defendant’s franchise agreement, all legal disputes regarding the franchise must be litigated in accordance with Kentucky state law. Accordingly, the Court holds that the defendant’s demand does not constitute a breach of contract and/or promissory estoppel.

Under Kentucky law, the court must strictly enforce the contract, regardless of promissory estoppel. The franchise agreement clearly gives Defendant right to control the advertising of the franchise. The agreement also states that “No failure, forbearance, neglect or delay of any kind or extent on the part of KFC shall affect or diminish KFC’s right to strictly enforce and take full benefit of each provision of this Agreement at any time.” Therefore, despite allowing Plaintiff to advertise his franchise’s meat as Halal, Defendant reserved the right to demand he no longer advertise the meat as such.

Iowa

In Re. Makhlouf

695 N.W.2d 503 (Iowa Ct. App. 2005)

Facts

Samantha was born to Jordanian parents in Texas on December 1, 1996. Her parents divorced in Jordan on March 26, 1998. The Jordanian divorce decree did not address custody, but Samantha remained in the custody of her mother. The mother and Samantha moved to Iowa in March 2000. She did not inform the father of the move, and did not inform him of her remarriage.

In August of 2000, the father initiated litigation in Jordan for custody. Initially, the Jordanian court awarded custody to the mother, but the Sharia Court of Appeals reversed on July 17, 2001 after discovering that the lower court was not informed of the mother’s remarriage, which thereby removed her right to Samantha’s custody. The father was granted custody.

In February 2001, while this Jordanian action was pending, the mother filed her own custody action in the Iowa District Court. In these proceedings, the mother denied residing in Jordan and certified there were no other pending actions in any other court relating to custody of Samantha. She also alleged she did not know the father’s address, and so the Iowa court ordered service by publication. After finding the father in default, custody of Samantha was granted to the mother on June 12, 2001. The father soon thereafter discovered the Iowa court proceedings and challenged the validity of the custody order. The Iowa District Court vacated its custody order on October 21, 2002.

Even while these two cases were ongoing, the mother’s mother (the maternal grandmother) initiated her own proceedings in Jordan seeking custody. An order from the Jordanian court gave her custody of Samantha as of February 27, 2002. This order was vacated on April 28, 2003 in favor of the father’s Jordanian custody decree.

On August 28, 2003, the Iowa Court registered the Jordanian Sharia Court of Appeals ruling dated July 17, 2001 granting custody to the father. The mother, despite this order, and numerous subsequent orders to transfer the child to the father’s custody, resisted all father’s efforts to resume custody of Samantha.

On March 17, 2004, the mother filed an application in Iowa to modify custody. Father filed a motion to dismiss, which was granted by the trial court.

On May 27, 2004, the Iowa District Court made a decision declining to exercise jurisdiction and deferred the custody issues to the Jordanian court. The mother appealed, and the father cross-appealed for attorney fees.

Issue

Whether or not the Iowa District Court could exercise jurisdiction to modify a Jordanian custody decree after such decree was registered and enforced in the Iowa District Court.

Ruling

The appellate court affirmed the trial court’s ruling. The mother, throughout all steps of the litigation, acted in bad faith and displayed reprehensible conduct. The district court even found her in contempt and sentenced her to five days in jail. Due to this behavior, as well as the mother’s prevention of visitation and enforcement of custody orders, the Iowa District Court could take emergency jurisdiction under the Uniform Child-Custody Jurisdiction Enforcement Act (UCCJEA).

While the legal questions in the appeal were innumerable, the appellate court concluded the law controlling the case was Section 598B.208, wherein “[e]xcept as otherwise provided…. if a court of this state has jurisdiction under this chapter because a person seeking to invoke jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction….” Based on that authority, and the pattern of lies, deception, and contempt for the rule of law either in Jordan or Iowa, which is plentiful in the record, the appellate court affirmed the trial court’s decision.

Kentucky

Aqel v. Aqel

2005 WL 564191 (Ky. App. 2005)

Facts

The parties married on September 30, 1996 in Kentucky. However, the marriage was annulled on January 21, 1997 because the husband was still legally married in Jordan to another woman, Amani. The husband filed for divorce in Jordan and was granted a three- month revocable divorce decree on May 13, 1997. The three-month period, or “idaa,” would allow the husband to revoke the divorce if he chose to stay married to Amani.

On June 7, 1997, the husband and wife remarried. On December 21, 2001, the wife petitioned to annul the marriage. The wife argued that the husband was still married to Amani because the wife and husband remarried before the idaa period was over. In contrast, the husband argued that he was divorced from Amani when he remarried the wife because he did not resume marriage with Amani during the idaa period and the date of the divorce is the date of filing and not the end of the idaa period. The trial court ruled in favor of the husband, finding that the husband and Amani were divorced as of May 13, 1997 and therefore, the marriage between the husband and the wife was valid. The wife appealed this decision.

Issue

Whether a divorce is final where the husband remarried prior to the idaa period ending and did not resume marriage with his ex-wife.

Ruling

The appellate court affirmed the trial court’s decision. The court based its decision on evidence presented at the trial level and on case law. The court found that there was “substantial evidence” provided by the husband and the husband’s expert witness to substantiate the trial court’s decision. Moreover, the court paralleled Matter of Hassan to the present case, in which the Board of Immigration ruled that the date of divorce was the date that the revocable divorce decree was granted, as Hassan had not resumed the marriage. Since the husband did not take Amani back as his wife during the idaa period, the date of the divorce was the date the revocable divorce decree was granted, May 13, 1997. Therefore, the marriage between the husband and wife was valid.

Louisiana

Amin v. Bakhaty

Supreme Court of Louisiana, No. 2001-C-1967)

Facts

The parties were married in Egypt on November 21, 1991. The wife was an Egyptian national while the husband held dual citizenship in the U.S. and Egypt. One child was born of the marriage in Egypt in 1992. The wife and child lived in Egypt for most of the parties’ marriage, while the husband lived and worked in New Jersey. The husband visited Egypt a few times a year, for a week to ten days at a time.

In early December 1998, the wife moved to Louisiana, where her sisters resided, and sought an apartment for herself, her husband, and the parties’ child, as per an alleged agreement between the parties. The husband instead traveled to Egypt and brought criminal charges against the wife for removing the minor child from Egypt without his permission.

Thereafter, on January 7, 1999, the wife petitioned the Louisiana Family Court for divorce, sole custody, and child support on the grounds of abandonment. On January 9, 1999, the husband obtained an Egyptian divorce and subsequently filed for custody of the minor child in Egypt. On May 28, 1999, the husband filed for custody of the child. The parties stipulated during trial in March 2000 that the Egyptian divorce was final.

Issue

Whether the Louisiana Family Court had jurisdiction to determine child custody when the plaintiff and child were Egyptian nationals who had only recently moved to Louisiana and the father was a dual U.S./Egyptian citizen residing in New Jersey.

Ruling

The trial court asserted subject matter jurisdiction on the grounds of residual jurisdiction (that no other state could maintain jurisdiction). The trial court declined to treat Egypt as a state, and instead ruled it would be in the child’s best interests for the Louisiana court to assume jurisdiction. The trial court also ruled it had personal jurisdiction over the defendantf as, in filing his Petition for Civil Warrant to obtain custody of the child, he had “availed himself of the privilege of conducting activities within the Louisiana.”

For the foregoing reasons, the appellate court affirmed the trial court’s decision on June 20, 2000 to grant interim custody to the wife and fixing child support, among other relief.

Ghassemi v. Ghassemi

998 So.2d 731

Facts

The parties were married in Iran. The husband and wife were first cousins. A divorce action was initiated in Louisiana, where the trial court determined the marriage was invalid as it violated Louisiana public policy (Louisiana prohibits marriages between first cousins).

Issue

Whether a marriage performed in Iran between first cousins was valid under Louisiana law.

Ruling

The appellate court reversed the trial court’s decision. Although L0uisiana prohibits marriages between first cousins when contracted in Louisiana, the appellate court stated that “first cousin marriages were not considered odious.” The marriage was performed and was valid in Iran, and therefore Louisiana must grant recognition of the marriage according to the doctrine of comity.

Maryland

Aleem v. Aleem

175 Md. App. 663, 931 A.2d 1123 (2007)

Facts

Husband and wife were Pakistani citizens residing in Maryland. The wife had lived in Maryland for over 20 years and was a permanent U.S. resident. The wife initiated a divorce in Maryland; however, during that time, the husband divorced the wife by talaq in accordance with Pakistani law. The Maryland court did not give the husband’s Pakistani talaq comity and equitably distributed the parties’ marital property. The husband appealed.

Issue

Whether the trial court should have given comity to the Pakistani divorce (talaq) and therefore declined jurisdiction to divide the marital property.

Ruling

On appeal, the appellate court affirmed the trial court’s decision, citing that the application of Pakistani law in this circumstance would be contrary to Maryland public policy because Pakistani law provided husband had no duty to equitably divide the parties’ marital property.

Hosain v. Malik

671 A.2d 988 (1996)

Facts

The parties were married in Pakistan in 1982 and had a daughter. In 1990, the parties separated and the wife moved in with her parents, taking her daughter with her. Subsequently, the wife fled to the United States with her daughter. The husband filed a lawsuit against the wife for custody of his daughter. The wife was represented by counsel in the Pakistani custody hearing, although she refused to appear in person. The Pakistani judge awarded custody to the husband.

The wife filed for custody of her daughter and a restraining order against the husband with the Circuit Court of Baltimore county. The circuit court determined that it had jurisdiction over the case and awarded temporary custody to the wife and issued a restraining order against the husband.

The husband appealed the decision, challenging the circuit court’s jurisdiction over the case since a Pakistani custody order had already been issued to the husband. The appellate court remanded the case to the circuit court, instructing the circuit court to determine two issues: 1) Whether the Pakistani court did not apply the best interest of the child standard when making its custody determination; and 2) whether the Pakistani court applied law and procedure that was profoundly contrary to Maryland’s public policy.

At the remand hearing, the circuit court held that the wife failed to prove both issues by a preponderance of the evidence; as such, the circuit court granted comity to the Pakistani court’s decision. The wife appealed.

Issue

Did the circuit court err in determining that appellant failed to prove that Pakistani law was not in substantial conformity with Maryland law?

Did the circuit court err in not assuming jurisdiction under the Uniform Child Custody Jurisdiction Act?”

Ruling

The court affirmed the circuit court’s decision, finding that the Pakistani court did apply the best interest of the child standard.

The court rejected the wife’s argument that the Pakistani law applied was not in conformity with Maryland’s public policy because its decision was based in part on the right of Hazanit. Hazanit is the parental right to a child under Islamic law, depending on the age and sex of the child. In this case, the wife argued that she lost her parental rights under Hazanit by fleeing Pakistan so that the husband was unable to exercise his natural control over the child and by engaging in an adulterous relationship. The appellate court held that the Pakistani court’s application of Hazanit did not make its law repugnant to Maryland’s public policy because the right of Hazanit is similar to Maryland’s maternal preference rule and there was enough “substantial competent evidence” presented to justify the circuit court’s ruling.

Moustafa v. Moustafa

888 A.2d 1230 (Md. Ct. Spec. App. 2005)

Facts

The parties were married in Egypt in June 1976. An Egyptian divorce was granted in September 1985 and registered with the Maryland trial court, after which wife returned to Egypt with the children. Husband married a new wife in Maryland just a few months later. Husband remarried his first wife in Egypt in June 1986, while he was still married to the new wife.

In November 2002, the first wife filed for divorce in Maryland. The husband immediately thereafter renounced the validity of the 1986 marriage contract in Egypt. The trial court granted the first wife an annulment, but that “does not affect the Court’s authority to award [wife] relief to include, but not be limited to, custody, child support, alimony, monetary award or attorneys’ fees.”

Issue

Whether the “Maryland Court, having personal jurisdiction over the parties, have authority to void a bigamous marriage without any showing that it was invalid in the Islamic nation where it was entered?”

Ruling

The Appellate Court affirmed. The court stated if the husband wanted the trial court to apply Egyptian law, he was required to “(1) provide notice of his intent to rely upon that law, and (2) prove what that law is.” The husband did neither. Further, “[a]lthough foreign judgments are entitled to a degree of deference and respect under the doctrine of comity, courts will nonetheless deny recognition and enforcement to those foreign judgments which are inconsistent with the public policies of the forum state.”

Massachusetts

Charara v Yatim

Appeals Court of Massachusetts

Facts

The husband and wife are Shia Muslims born in Lebanon, but residing in Massachusetts. In May 2004, the parties and their children traveled to Lebanon to obtain a religious divorce. The husband did not institute divorce proceedings, but did obtain custody of the two children. He also instituted a travel ban against the wife which prevented her from traveling outside Lebanon. Once the travel ban was lifted, the wife returned to Massachusetts without the children and instituted divorce proceedings, wherein she requested custody and child support.

Issue

Whether the Lebanese Jaafarite Court custody decree should be afforded deference and granted comity in Massachusetts.

Ruling

The appellate court affirmed the trial court’s award of custody to the mother and child support. The court found the Lebanese custody order was not in substantial conformity with Massachusetts law and therefore no deference was due. The wife’s expert testified that in Lebanon, “best interest for the child is being with the father after the age of two” and the mother would only be given custody upon evidence of unfitness, such as being a criminal, taking drugs, or being incapable of caring for the child. This is certainly not in conformity with the Massachusetts best interest standard.

El Chaar v. Chebab

Appeals Court of Massachusetts

Facts

The parties were married in Lebanon in 2001. One child was born of their marriage in September 2002 while they were residing in Lebanon. In 2004, the parties divorced in Lebanon, and the mother was granted custody of the child, with visitation given to the father.

In May 2006, the mother left Lebanon with the child without the father or court’s permission and thereafter settled in Massachusetts. The father filed a petition for custody in Lebanon, where the mother was represented by counsel. A judgment dated September 26, 2006 suspended the mother’s custody as long as she remained outside Lebanon and ordered her to deliver the child to the father. On mother’s appeal, the Lebanese court affirmed the judgment.

On February 12, 2007, the father sought to enforce the Lebanese custody decree in Massachusetts. The trial court dismissed the petition as the Lebanese custody decree did not consider the best interests of the child.

Issue

Whether a Lebanese custody decree should be enforced in Massachusetts, where the mother contested the proceedings and was represented by counsel.

Ruling

The Appellate Court affirmed the trial court’s decision. The court found no indication of the standards applied by the Lebanese court in reaching its decision to suspend the mother’s custody rights in favor of the father. The decision was solely based on the mother’s leaving the jurisdiction with the minor child. Such a consideration, standing alone, is not in substantial conformity with the Massachusetts best interest standard.

Tazziz v. Tazziz

26 Mass. App. Ct. 809 (1988)

Facts

Father is a Jordanian citizen residing in Israel. Mother is a dual citizen of the U.S. and Jordan residing in Israel. The parties had five children, all of whom are dual citizens of the U.S. and Jordan. In May 1988, the mother travelled with her three youngest children to visit her eldest daughter in Jordan, and thereafter travelled to Massachusetts without the knowledge or consent of the father, where she filed custody proceedings in June 1988. The father initiated custody proceedings in the Sharia Court in Israel, then travelled to Massachusetts with the remaining child in July 1988.

The trial court, believing Massachusetts could not take jurisdiction, dismissed the mother’s complaint on August 5, 1988, but stayed the order pending an appellate decision.

Issue

Whether the Massachusetts Probate Court had discretion whether to take jurisdiction over a child custody proceeding later initiated in the Israeli Sharia Court.

Ruling

The Appellate Court remanded the case to the Probate Court for further inquiry in regards to: “(a) the date when proceedings were commenced in Israel and the nature and content of any pleadings there filed; (b) the nature and the composition of the Sharia Court and of the substantive law and principles which would be applied in Israel in that court to family custody disputes between Moslems having the nationalities of each of the parties to this case and of their minor children; (c) whether and to what extent the law which the Sharia Court should apply is consistent with Massachusetts law in respects already discussed; …. (f) the probable physical safety of each of the minor children and the opportunities for education, if they are ordered to return to Israel now….”

Michigan

Ellehaf v. Tarraf

2006 WL 736561 (Mich. App).

Facts

The parties were married in an Islamic ceremony in Michigan without obtaining a marriage license. The husband filed a complaint seeking custody of their children and a declaratory judgment that the parties were never legally married. The trial court ruled in his favor. The wife appealed, arguing that they were legally married despite not having a marriage license because she registered the marriage in Lebanon. Additionally, she argues that the marriage is valid because she substantially complied with Michigan’s statutory requirements.

Issues

Whether a marriage is valid where the parties did not obtain a marriage certificate and the wife registered the marriage in another country after having been religiously divorced twice by the husband and the wife did not hold herself out to be married to the husband.

Ruling

The appellate court affirmed the trial court’s decision, holding that the parties were never legally married because they did not obtain a marriage license. Under Michigan law, a valid marriage requires that the parties obtain a marriage license prior to the ceremony. Here, the parties did not obtain a license. Therefore, their marriage was invalid.

The court noted that the wife’s unilateral registration of the marriage in Lebanon did not validate the marriage in Michigan for two reasons: 1) the wife registered the marriage after the husband had already divorced her twice under Islamic law; and 2) the wife possibly registered the marriage after the husband had legally married another woman in Michigan (court records are unclear as to whether the wife registered the marriage shortly before or after the husband legally married). Moreover, the court noted that the wife did not hold herself out to the public to be married to the husband and the wife was knowledgeable of the difference between a legal and religious marriage, as she had been married legally before.

The wife also argued that the marriage was valid because she substantially complied with Michigan’s statutory requirements by having the Secretary of State validate the Lebanese marriage certificate. However, the court disagreed, using a strict interpretation of the law: “The plain language of MCL 551.2 says that the statutory requirements must be met to form a legal marriage in the State of Michigan, and it does not include an exception for substantial compliance.”

Thus, since the marriage was invalid in Michigan, the “”[a] relationship that does not meet the statutory requirements for a legal marriage does not give rise to property rights, personal rights, or rights to support.””

Lemm v. Salamey

2005 WL 1880200 (Mich. App.)

Facts

The parties were married in Lebanon in 1987. Subsequently, they moved to Michigan and became United State citizens. The parties had two children together, Donna and Ramsey. In 1996, the parties moved back to Lebanon and they divorced. The Lebanese court granted custody of the children to the husband. The husband remained living with the children in Lebanon while the wife returned to live in the United States. After a visit with her Mother in Germany, Donna returned to the United States with her Mother instead of returning to her Father in Lebanon. The wife filed a complaint, seeking custody of Donna and the trial court awarded custody to the wife. The husband appealed, arguing that the trial court did not have jurisdiction to grant custody, as the Lebanese court still had jurisdiction over the matter.

Issue

Whether a foreign court’s custody decree is binding in a state where the husband was a resident at the time the custody claim was filed.

Ruling

The appellate court affirmed the trial court’s decision, granting the wife custody over Donna. The court based its decision on Michigan’s Modification of Child-Custody Determination Statute, MCL 722.1203. This statute states that a Michigan court will abide by a foreign court’s child custody determination unless a Michigan court would have initial jurisdiction over the claim and it “determines that neither the child, nor a parent of the child, nor a person acting as a parent presently resides in the other state.” Here, the husband was a resident of Michigan at the time the wife filed the custody claim as was evidenced by the defendant claiming Michigan as his residence on his 2002 tax returns. Thus, the Lebanese court’s custody determination was not binding on the Michigan courts and therefore the trial court’s decision was proper.

Samman v. Samman

2004 WL 2535219 (Mich. App)

Facts

The parties married under Islamic law and executed a marriage contract that provided that the husband would pay the wife $15,000 if the parties divorced. The parties were married in a civil ceremony in March 1996. Subsequently, the wife filed for divorce under the civil marriage in January 2002. The trial court awarded the wife “the marital home to live in along with the $37,600 marital equity in the home” in addition to the $15,000 promised in the marriage contract, as the trial court considered the latter to be a dowry. In February 2002, the parties divorced under Islamic law and the wife signed an acknowledgment that she had received the $15,000 provided under the marriage contract. On appeal, the husband argued in part, that the property award should be limited to the $15,000 that was provided for under the Islamic marriage contract.

Issue

Whether property should be subject to equitable distribution where the parties agreed to a specified amount in a religious contract.

Ruling

The appellate court affirmed the trial court’s decision, holding that equitable distribution was proper in this case. The court referred to a prior appellate case in noting that the issue was not preserved on appeal because the husband failed to plead the Islamic marriage contract as an affirmative defense. Therefore, the court could not review the issue. The court also noted that the trial court did consider the agreement made under the Islamic marriage contract when it equitably distributed the property.

Tarikonda v. Pinjari

2009 WL 930007 (MICH.APP.)

Facts

The parties were married in India under Islamic law in 2001. Subsequently, they moved to Michigan. In April 2008, the husband traveled to India to perform the triple talaq, a means of divorce under Islamic law which is recognized in India. In order to divorce under the triple talaq, the husband must state “I divorce thee” three times. The husband performed the triple talaq and was granted a divorce certificate in India. The parties disagree as to whether the husband notified the wife about the talaq divorce.

In May 2008, the wife filed for divorce in Michigan. The husband filed to dismiss the complaint on the basis that the parties were already divorced in India under the triple talaq and presented the court with the divorce certificate. The trial court ruled in favor of the husband, recognizing the triple talaq that took place in India and dismissing the wife’s divorce complaint.

Issue

Whether a foreign divorce decree should be recognized where the wife was not afforded due process, did not have the right to be present in court, and there was no hearing on the merits of the divorce.

Ruling

The appellate court reversed the trial court’s decision, holding that the trial court erred in recognizing the Indian divorce because the requirements for comity were not met. Generally, “a judgment should be accorded comity if: 1) ” ‘the basic rudiments of due process were followed,’ ” 2) “the parties were present in court,” and 3) ” ‘a hearing on the merits was held.” Here, all elements were missing. The wife was not afforded due process as she had no prior notice of the triple talaq, she had no right to be present at the divorce, and there was no hearing on the merits of the divorce. Thus, the trial court should not have awarded the Indian divorce comity under Michigan law.

Additionally, the court noted that it would be against public policy to recognize the Indian divorce because Islamic law differs substantially from Michigan law in regards to property distribution. Specifically, Islamic law limits property distribution to that which is designated under the Islamic Marriage Contract. In contrast, Michigan law allows for the equitable distribution of property in light of all circumstances unless the parties entered into a prenuptial agreement, which would then take precedent. “Given this difference between the Muslim personal law in India and Michigan law, affording comity to the Indian divorce would again ignore the rights of citizens and persons under the protection of Michigan’s laws.

Minnesota

In re Ombabi

A16-0403 (Minn. Ct. App. Aug. 8, 2016)

Facts

Nadir Ibrahim Ombabi is a taxi driver and Minnesota resident. Ombabi married respondent Nariman Sirag Elsayed Khalil in Sudan. Ombabi died in a car accident and his estate brought a wrongful-death claim that settled for $183,000 in Minnesota.

Following the settlement, Ombabi’s trustee, his brother Hosameldin Ibrahim Ombabi, requested an order to determine the pecuniary loss of individuals entitled to the settlement. The appellant argued that the Minnesota District Court should apply Islamic law which would “distribute 25% of the proceeds to respondent, 16.7% to Ombabi’s mother’s estate, and the remaining proceeds to Omababi’s siblings, with the males to receive ‘twice the share of the female.'”

The district court denied the appellant’s request and applied Minnesota state law to divide the estate. Hosameldin Ibrahim Ombabi appealed this decision on the basis that Islamic Law should have been followed since all parties were Muslim.

Issue

Whether the Minnesota district court erred in applying Minnesota State Law instead of Islamic Law to divide the estate of the deceased when all parties involved were Muslim.

Ruling

The Appellate Court upheld the District Court’s Opinion on the basis that appellant, acting without an attorney, failed to provide adequate legal argument or authority.

Appellant also argues that the Minnesota District Court erred in not following a Sudanese Family Court law regarding distribution of wrongful death settlements under Islamic Law. However, since appellant failed to provide the appellate court with a transcript of the district hearing, it was unclear whether or not this issue was raised in the lower court, and therefore the argument could not be considered.

United Islamic Society v. Masjed Abubakr Al-Seddiq

A16-0140 (Minn. Ct. App. Aug. 29, 2016)

Facts

The organization, Masjed Abubakr Al-Seddiq, Inc. (MAAS) was founded in 1995 and played a key role in the establishment of Masjed Abubakr Al-Seddiq. In 2007, MAAS and the Rochester Islamic Center (RIC) had a dispute regarding the management of the mosque. A meeting was held by the board members of MAAS and RIC where attendees all agreed that the mosque property, including cemetery lands, would be conveyed to the North American Islamic Trust (NAIT) and that a new organization would be created to manage the masjid. Attendees also agreed that all current members of MAAS and RIC, with the exception of MAAS’s current president, Mohammed Bouarfa, could not run for election onto the new organization’s board.

In December 2007, the new organization, United Islamic Society (UIS) began managing the mosque’s activities. MAAS declared that their assets would be transferred to NAIT as trustee, and that the masjid would be leased to UIS.

On March 12, 2012, NAIT’s executive director Mujeeb Cheema, and MAAS’s treasurer, Tanveer Zubair, executed a declaration of trust agreement between NAIT and MAAS listing NAIT as the trustee and MAAS as the grantor and beneficiary. Under the agreement, the mosque and it’s property were designated as waqf property.

In response, UIS filed two lawsuits for damages and requested the removal of NAIT as trustee.

The court denied MAAS and NAIT’s motion for summary judgment. MAAS and NAIT appealed arguing that any court decision over the matter would violate the establishment clause.

Issue

Whether the lower court issuing judgment on the matter would violate the Establishment Clause of the First Amendment.

Ruling

The appellate court ruled that the lower court’s denial of the appellant’s motion for summary judgment did not violate the establishment clause. The court held that the case may be decided using neutral principles of law.

The court denied the appellant’s argument that in order to make a decision over the matter, the court must rule on religious doctrines such as the meaning of the word waqf. Although the deeds reference the word waqf, they do not specify that the beneficiary must observe waqf requirements.

Therefore, the lower court has jurisdiction over the matter and may decide without violating the establishment clause.

New Hampshire

In the Matter of Ramadan

Supreme Court of New Hampshire (2006), No. 2004-757

Facts

The parties were married in Lebanon on December 5, 1986. Prior to their marriage, the parties entered into a marriage contract with a dower of 250,000 Lebanese liras. The parties moved to New Hampshire in 1999, and wife filed for divorce on October 14, 2003. The husband claimed to have initiated a talaq divorce in Lebanon the day before wife’s filing, then travelled to Lebanon on October 18, 2003. He returned to New Hampshire on December 12, 2003 and was served with the New Hampshire divorce proceedings. On December 18, 2003, the Lebanese divorce decree was issued, with a backdate of October 13, 2003. Husband moved to enforce the Lebanese divorce decree and dismiss the New Hampshire divorce action.

The trial court denied the husband’s motion to dismiss and instituted a temporary decree for sole custody, child support and alimony, and certain personal and real property. The husband thereafter travelled to Lebanon, ignored the temporary decree, and refused to return or participate in the New Hampshire proceedings. A default was entered and a final divorce decree was filed in New Hampshire on September 16, 2004. Husband appealed.

Issue

Whether or not the trial court had subject matter jurisdiction, and whether the Lebanese divorce decree should have been granted comity.

Ruling

The appellate court affirmed. Jurisdiction over a divorce action in New Hampshire “exists… where both parties were domiciled in the state when the action was commenced.” At the time the New Hampshire divorce petition was filed, both parties had been domiciled in New Hampshire with their minor children for three years. Therefore, the trial court had subject matter jurisdiction over the divorce. Further, “a divorce obtained in another jurisdiction shall be of no force or effect in this state… if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” Since the parties were both a domiciliary of New Hampshire at the time of filing, the court need not concern itself with the validity of the Lebanese divorce decree, as New Hampshire has jurisdiction.

New Jersey

Abouzahr v. Abouzahr

361 N.J. Super. 135 (App. Div. 2003)

Facts

The parties were married in a civil ceremony in Missouri on April 11, 1986. A year later, they were married in Muslim and Catholic ceremonies. In 1992, they had a daughter and in 1998, the wife filed for divorce. With the help of separate legal counsel and a mediator, they made a property settlement agreement (PSA), which permitted the husband, a Lebanese citizen, to bring his daughter to Lebanon to visit for one month during the summer since he would be moving back permanently. This agreement, which the wife signed, was incorporated into their divorce papers. The wife claimed it was only after the divorce was finalized that she learned about the potential problems that could arise under Islamic law if the husband refused to return her daughter after the one month visit.

In August 2000, the husband came to the United States to pick up his daughter for her one month visit to Lebanon. When he arrived at the wife’s home, he was served with an order to show cause and a temporary restraining order, preventing him from traveling outside New Jersey with his daughter. The husband appeared in court, seeking to dissolve the restraining order and prevent the wife from modifying the property settlement agreement.

The trial court held in favor of the husband, finding that there was no change in circumstance to justify a modification of the PSA and that it was in the best interest of the daughter to visit her father. The trial court found that the wife was informed by counsel before signing the PSA that the wife risked losing parental rights over her daughter in Lebanon since Islamic law would be controlling. Moreover the trial court found that no event occurred between the signing of the PSA and the husband coming to the United States to bring his daughter to Lebanon which would show cause to restrict the husband’s visiting time with his daughter. The wife appealed the decision, arguing that there was a change of circumstance to justify modification of the PSA, namely that the husband became hostile after the divorce and that the wife had increased her knowledge about Islamic law and the consequences of her decision to sign the PSA.

Since Lebanon is a non signatory of the Hague Convention on the Civil Aspects of International Child Abduction, Islamic law would predominate over the issue. Under the Hague Convention, a child who was unlawfully abducted would be returned to his or her “habitual residence.” However, under Islamic law, the husband would have custody over the daughter after she turned 9 years old. Moreover, under Islamic law, the wife would lose custody if she was deemed unfit, which would likely be the case since she was raising the daughter Catholic instead of Muslim.

Issue

Whether a former spouse may alter the terms of a property settlement agreement (“PSA”) to prevent visitation in a country which is not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction and whose laws could be employed to inhibit the return of the child to the primary custodial parent.

Ruling

The appellate court affirmed the trial court’s decision. The court noted that there are several factors that a court must consider when deciding whether to permit or restrain out-of-country visitation, amongst them the fact that the country where the child will visit is a non-signatory to the Hague Convention. However, this factor alone is not determinative. The court instructed that:

[i]n addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the domicile and roots of the parent seeking such visitation, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

In considering these factors, the court found that there was no evidence to indicate that the husband intended to keep his daughter in Lebanon, as he himself valued the life he had in the United States and wanted his daughter to reap the same benefits. Thus, the court found that there was no change in circumstances to modify the PSA. However, as a result of heightened political tensions in the Middle East, the court did impose a requirement that the wife be notified at least four weeks prior to her daughter’s visit so that she could apply to the Family Part to evaluate the daughter’s safety and to reconsider the factors mentioned above.

Ali v Ali

279 N.J. Super. 154 (N.J. Super. Ch. Div. 1994)

Facts

The parties were married in a religious ceremony in Gaza in July 1983. On February 1, 1986, the parties had their first and only son. In or around 1991, the parties separated. Wife returned to her home state of New Jersey, and the husband returned later with the son. Their son attended public schools in New Jersey through the 1992-1993 academic year. From May of June of 1993 through July 1993, the parties vacationed in Paris and Gaza. The plaintiff/mother returned to the U.S. on July 15, 1993; the defendant/father and the child were due to return before the 1993-1994 academic year began in New Jersey.

Upon the defendant/father’s retaining the child in Gaza, the plaintiff/mother filed a complaint on September 16, 1993 seeking a divorce, sole legal custody, and other relief. A motion was thereafter filed for the child’s return to New Jersey. Subsequent orders called for the defendant’s arrest and granted the plaintiff custody pendente lite. The defendant filed a motion to vacate in March 1994, citing, among other relief, that he had already divorced the plaintiff in Gaza on July 28, 1993; the court had allegedly also granted him custody of the minor child.

Issue

Whether the trial court should have given comity to the Gaza divorce and custody decree.

Ruling

Defendant did not provide a copy of the Gaza decree, but did submit as proofs the laws of Gaza (Article 391 of Islamic Sharia Law and Article 118 of the Law of Family Rights) indicating fathers are automatically entitled to custody of sons at age 7, but mother can apply to prolong her custody until the age of 9. Such laws do not comport with the best interests standard in New Jersey “by any stretch of the imagination.” For those reasons, the courts determined the Sharia Court custody decree from Gaza could not be enforced or recognized by New Jersey courts under the doctrine of comity.

Based on this determination, among others, the trial court ordered a plenary hearing to determine custody of the minor child.

Chaudry v. Chaudry

159 N.J. Super 566 (1978); 388 A.2d 1000

Facts

The husband and wife are Pakistani citizens. They were married in 1958 in Pakistan and at that time signed a nikah nama (marriage contract). By February 1971, the parties were residing separately – wife and the children in Pakistan and the husband in New Jersey. On December 16, 1973, the husband initiated a talaq divorce at the Pakistan consulate in New York City. The divorce was confirmed on November 5, 1974; thereafter, the wife appealed and was represented by counsel in the Pakistani court.

On March 4, 1975, the wife instituted a separate maintenance action in New Jersey, alleging unjustifiable abandonment. The husband moved to dismiss as he had already obtained the Pakistani divorce decree and met all obligations under their nikah nama in Pakistan.

The trial court refused to recognize the Pakistani divorce on the grounds it was against New Jersey public policy – wife was not entitled to alimony and the nikah nama awarded the wife only 15,000 rupees ($1,500) in the event of divorce. The trial court also denied support for the three children, as it asserted a lack of authority over support for children beyond its jurisdiction. Both parties appealed.

Issue

Whether a Pakistani divorce decree is valid in New Jersey and whether the New Jersey Superior Court had jurisdiction to grant equitable distribution and support to an out-of-state wife and/or jurisdiction to grant child support for out-of-state children.

Ruling

The appellate court reversed. The Pakistani divorce was confirmed after being contested by the wife, and she thereafter appealed the judgment with the help of Pakistani counsel. The Pakistan appellate court held the divorce was valid. Under such circumstances, the principles of comity require the divorce be recognized in New Jersey.

The wife was further barred from requesting alimony or equitable distribution, even though there are no such reliefs in Pakistan, because there was no adequate nexus of the marriage to the State of New Jersey; indeed the wife had resided outside of New Jersey for six (6) years at the filing of her petition. The nikah nama, the court found, was negotiated by the wife’s parents, and therefore limited her rights to 15,000 rupees ($1,500).

Ivaldi v. Ivaldi

288 N.J. Super. 575 (1996)

Facts

The parties were married in Morocco in 1992. Within the next few years, the parties settled in New Jersey. The parties’ marriage deteriorated, and the husband moved out of the marital home. One February 22, 1995, the parties signed a separation agreement, which included joint legal custody, but physical custody to the wife. Visitation and child support were also settled upon, and the wife was granted the right to obtain a religious divorce. A week later, the wife sent the parties’ daughter to live with her parents in Morocco. The wife moved to Morocco a few months later in April 1995; thereafter, sometime between April 27 and May 3, 1995, the wife filed for divorce and custody in Morocco.

The husband filed for divorce in New Jersey on May 2, 1995. The wife filed a motion to dismiss, which was denied; the trial court determined New Jersey had subject matter jurisdiction and that New Jersey was the child’s home state. The judge determined the wife had wrongfully removed the child to Morocco and ordered the child’s return as well as ordering a custody hearing, granting the husband sole custody pendente lite, and restraining the wife from proceeding with her petition in Morocco. The wife appealed.

Issue

Whether New Jersey had subject matter jurisdiction over a parties’ divorce when a proceeding had already been filed in Morocco.

Whether or not the wife had wrongfully removed the child from New Jersey to Morocco, a non-signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

Ruling

On appeal, the appellate court found no basis for the conclusion that the child had been wrongfully removed from New Jersey as the parties’ settlement agreement clearly contemplated the wife’s leaving of the U.S. to reside in another country. The agreement expressly granted the wife permission to reside in another country. Further, the appellate court found there was no breach of the agreement for denial of husband’s visitation as husband never made support payments or offered to tender travel expenses, which was a precondition to his right of visitation.

The court then reviewed whether the child was wrongfully removed under the International Child Abduction Remedies Act (ICARA). In this case, the Hague Convention and ICARA could not be invoked as: (1) Morocco was not a signatory to the Hague Convention; (2) the husband did not have custody rights prior to the child’s removal from the U.S.; and (3) there was no basis found that the child had been wrongfully removed from New Jersey. Thus, ICARA did not apply and the appellate court concluded New Jersey lacked subject matter jurisdiction.

The appellate court went further to explain that even if New Jersey courts had subject matter jurisdiction, Morocco’s jurisdiction must be recognized under principles of international comity. Nothing was presented indicating Morocco could not or would not fairly resolve the parties’ custody disputes. There was further no evidence that Morocco would not take into account the best interests of the child in its judgment. Thus, the appellate court believed Morocco should take jurisdiction and New Jersey should abstain even assuming it had subject matter jurisdiction.

Odatalla v. Odatalla

355 N.J.Super.305, 810 A.2d 93 (2002)

Facts

The parties were married in a religious ceremony on June 15, 1996 and executed an Islamic Marriage Contract that included a mahr provision. The mahr agreement provided that the mahr would be one golden pound coin immediate payment and $10,000.00 U.S. dollars deferred payment. The wife filed for divorce based on extreme mental cruelty and sought the specific performance of the mahr agreement. The husband objected to the enforceability of the mahr agreement on two grounds: (1) the First Amendment precluded the court from reviewing the mahr agreement, as it would violate the separation of church and state doctrine; and (2) the agreement is not valid under New Jersey contract law.

Issue

Whether the mahr agreement is valid where the evidence proved that the husband made an offer, the wife accepted the offer, and the husband intended to bind himself to the contract by paying a portion of the mahr.

Ruling

The court, consistent with Supreme Court jurisprudence, held that the court would not violate the separation of church and state doctrine by reviewing the mahr agreement. The court noted that as long as it applied neutral principles of law to the validity and enforceability of the mahr agreement, “then the mahr agreement survives any constitutional implications.”

In applying the neutral principles of law (i.e. the principles of contract law in New Jersey) to the mahr agreement, the court found that the mahr agreement was valid and enforceable under New Jersey law because the husband voluntarily bound himself to the agreement. The court noted that the videotape that was admitted into evidence showed the husband freely making an offer to the wife by signing the mahr agreement, the wife accepting the offer by signing the agreement, and the husband intentionally binding himself to the agreement by making the first payment required by the mahr. Moreover, the court found that the $10,000.00 deferred portion of the mahr was due on demand or upon death of the husband or dissolution of the marriage by using the parole evidence rule to interpret the meaning of the written words of the contract.

It is noteworthy that the court, while not stating so in the published decision, equitably distributed the marital property, assets, and debts, and made a finding as to alimony.

Rahman v. Hossain

2010 WL 4075316 (N.J.Super.A.D.,2010)

Facts

The parties married in Maryland on September 6, 2009 under Islamic law. The parties signed an Islamic Marriage Contract that included a mahr of $12,500 immediate payment. About a year later, the wife moved out of the house and in December 2007, the husband filed for a divorce or an annulment. The wife defaulted and the trial court proceeded with a default hearing. The wife and attorney were present, but did not participate in the trial. The trial court granted the husband a divorce on the basis that the wife’s failure to engage in sexual relations, the wife’s lack of personal hygiene, and her decision to move out of the house constituted extreme cruelty. The trial court also held that the wife return the $12,500 mahr, because she did not disclose important information at the time of the marriage ceremony, such as her mental illness, which caused the downfall of the marriage. Lastly, the trial court ordered the wife to pay half of the appraised value of jewelry that she received at the time of the marriage. The wife appealed.

Issue

Whether the mahr, or prenuptial agreement, is refundable where one spouse did not disclose a mental illness, engage in sexual relations and personal hygiene, and moved out of the marital home.

Ruling

The appellate court affirmed the trial court’s decision on both issues, finding that there was no conflict of interest and that the wife was the cause for the termination of the marriage.

The appellate court held that the wife was at fault in terminating the marriage. The court found that there was evidence to support the trial court’s findings.

Since the wife could not prove she was not at fault in terminating their marriage, the court affirmed the trial court’s order to refund the husband the $12,500 mahr.

Yaghoubinejad v. Haghighi

384 N.J. Super. 339 (A.D. 2006)

Facts

The parties were married in an Islamic ceremony on June 30, 2001 and executed an Islamic Marriage Contract. They executed the document before two witnesses and the religious cleric that solemnized the marriage. The parties never obtained a marriage license from the State of New Jersey. Four years later the wife filed for divorce. The husband objected, claiming they were never legally married. The trial court held that the marriage was valid and granted the wife a divorce, as the surrounding circumstances of the marriage ceremony cured any defect in the marriage.

Issue

Whether parties who married under a religious ceremony are legally married where the parties never obtained a marriage certificate from the state.

Ruling

On appeal the appellate court reversed, holding that the parties were never legally married because under New Jersey Law, it is an absolute requirement that the parties obtain a marriage license in order to validate their marriage.

New York

Ahmad v. Naviwala

306 A.D.2d 588; 762 N.Y.S.2d 125 (2003)

Facts

Husband and wife were married in New York. They had four children. At the time the wife/mother initiated the divorce in 1998, the children were between the ages of 9 and 15 years old. The father and mother spoke to Islamic law scholars, and with their recommendations, they made a plan for mother to retain custody of the son until 2001 and the three daughters until 2002, after which sole custody would be transferred to the father. In 2000, the father took all four children to Saudi Arabia for what was supposed to be a 3 month vacation, but he never returned to the U.S. Father alleged the Saudi courts had granted him sole custody of all four children, but mother never received notice of any custody proceedings.

When father and the children returned to the U.S., the mother petitioned the New York Family Court for custody of the children. The Family Court gave custody to the father.

Issue

Whether a mother should be granted custody after father retains the child in a non-Hague country and initiated custody proceedings there.

Ruling

On appeal, the appellate court gave custody to the mother. Custody with the mother was determined to be in the best interests of the children, with father’s “willful interference with a noncustodial parent’s rights to visitation” as a basis for the transfer. Father was granted visitation in the U.S., but the mother was given control over the children’s passports.

Aziz v. Aziz

127 Misc.2d1013, 488 N.Y.S.2d 123 (1985)

Facts

The parties were married in the State of New York according to Islamic Law and executed a Marriage Certificate that incorporated a Islamic Marriage Contract. It was signed by both parties and witnessed by a religious leader who performed the ceremony. The Contract provided a mahr of $32.00 prompt payment and $5000.00 deferred payment. The wife sought enforcement of the deferred portion under her Islamic Marriage Contract.

Issue

Whether the Marriage Certificate is enforceable under contract law where the parties agreed to the terms “as part of a religious ceremony.”

Ruling

The court ruled in favor of the defendant, awarding the wife immediate payment of the $5000.00 that was originally provided for as deferred payment under the Islamic Marriage Contract. The court held that the Marriage Certificate conformed to the requirements of New York contract law. Therefore, the secular terms of the contract are “enforceable as a contractual obligation notwithstanding that it was entered into as part of a religious ceremony.”

Farag v. Farag

772 N.Y.S.2d 368 (N.Y. App.Div. 2004)

Facts

The husband attempted to register an Egyptian “Bill of Revocable Divorce” in New York. The husband, though living in New York, had traveled to Egypt to obtain the divorce without notice to the wife. The New York trial court refused to grant comity to the Egyptian divorce as wife did not appear in the Egyptian proceedings and was not served with notice.

The husband then attempted to argue the parties Egyptian “Marriage Deed” governed the equitable distribution of the parties’ assets and maintenance obligations in the event of divorce. Specifically, the parties’ Marriage Deed provided a deferred mahr of 10,000 Egyptian Pounds. Again, the trial court refused to enforce the Marriage Deed as a contractual obligation and ordered equitable distribution of the parties’ marital residence as well as spousal support. The husband appealed.

Issues

Whether or not an Egyptian Bill of Revocable Divorce should be granted comity in New York.

Whether or not an Egyptian Marriage Deed should be enforced as a contractual obligation governing equitable distribution in the event of divorce.

Ruling

The appellate court affirmed the trial court’s decision, holding that comity could not be granted to the Egyptian Bill of Revocable Divorce. “The general rule is that a ‘foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process.'” The husband never informed the wife he was traveling to Egypt to obtain the divorce.

The appellate court concurred with the trial court as well in regards to the Egyptian Marriage Deed. While Muslim marriage contracts have been upheld in New York as a contractual obligation, no authority supports that the Marriage Deed would govern equitable distribution in the event of a New York divorce. Further, the Marriage Deed could not be enforced as a prenuptial agreement as the document was not “executed pursuant to Domestic Relations Law § 236(B)(3) and nothing in that document speaks to the issues of equitable distribution of assets or maintenance obligations in the event of a divorce.”

Thus, the trial court’s order equitably distributing the parties’ marital residence and fixing a maintenance obligation upon the husband was upheld.

In Re. Farraj

23 Misc.3d 1109(A), 886 N.Y.S.2d 67 (N.Y.Sur.,2009)

Facts

The parties married on May 2, 2003 and executed an Islamic Marriage Contract. The husband resided in the State of New York and the wife resided in the State of New Jersey. The husband traveled from New York to the wife’s family home in New Jersey to participate in the marriage ceremony. An Imam from New York solemnized the marriage before two witnesses. The parties thereafter lived as husband and wife in the State of New York. They did not obtain a marriage license prior to solemnizing their marriage. The husband was previously married and has five (5) adult children. On July 14, 2007, the husband died intestate. The children from the former marriage sought to bar distribution of the Estate to the new wife on the grounds that she was never legally married to their father.

Issue

Whether a marriage is valid under the law where the marriage ceremony was performed or under the law of matrimonial domicile.

Ruling

The New York Surrogate Court held that New York law applies and therefore, the marriage is valid.

The court considered the relevant Restatement of Conflict of Law to determine the applicable law. The Restatement (Second) of Conflict of Law provides important factors to consider for purposes of determining marital status: (1) the protection of justified expectation; (2) the relevant policies of the forum state; and (3) the relevant policies of other interested states and the relative interests of those states in the determination of a particular issue. The court noted that “the interest of the parties, the forum state and contracting state must be weighed” against one another. “The marriage should not be held invalid in such a case unless the intensity of the interest of the state where their marriage was contracted in having its invalidating rule applied outweighs the policy of protecting the expectation of the parties by upholding the marriage and the interest of the other state with the validating rule in having this rule applied.” Restatement (Second) of Conflict of Law, §283(1).

The court held that several events surrounding the marriage ceremony gave petitioner and decedent a justified expectation that their marriage would be valid. First, the parties intended to be married, took part in a religious ceremony and executed a Certificate of Marriage issued by the Mosque. In signing the Certificate of Marriage, they agreed to be united in marriage by their own free will. Second, the husband and the Imam that solemnized the marriage traveled from New York to New Jersey in order to abide by cultural customs and not to evade the applicability of matrimonial law. Third, New York was the matrimonial domicile for the entire marriage and the parties expected that their marriage would be upheld in New York.

The court also held that New York had a significant relationship with the decedent, the petitioner and their marriage because New York was their marital domicile. New York has a strong public policy interest in validating marriage of its domicile to protect their individual rights. This is especially the case where a marriage ceremony takes place and the parties hold themselves out to the public as husband and wife and are believed to be reasonably married. The New York Legislature has allowed a marriage to be valid if solemnized even without a marriage license because the harm of denying the benefits of a valid marriage outweighs the administrative ease of requiring a marriage license. A public wedding ceremony, the executed document eliminates the problems of a common law marriage.

While New Jersey has a substantial interest in enforcing its formal marriage requirements as the marriage was entered into in New Jersey, the court noted that this fact alone is insufficient to warrant application of New Jersey Law. Specifically, the court, in quoting another precedent, stated that “the state where the marriage was contracted does not necessarily have the most significant relationship to the spouses and the marriage even at the time the marriage was contracted.” The court found that the New Jersey Legislature’s concern in abolishing common law marriages and preventing possible manipulation by requiring a blood test is absent here. Here, the parties were married in a formal public ceremony and the marriage was not formed merely by cohabitation. There was no threat that the parties would claim that they had a common law marriage established in New Jersey because the parties resided in New York immediately after the marriage ceremony and New York was the matrimonial domicile. The parties did not intend for New Jersey to be their domicile when they were married. Therefore, New Jersey’s interest is minimal.

In sum, since New York has the most significant relationship with the parties and the marriage, the laws of New York govern the validity of the marriage. The court found the marriage to be valid and distributed the Estate according to New York intestacy laws.

Fouad v. Magdy

2017 WL 485798 (N.Y. App. Div. 2017)

Facts

In 2006, the parties – both Muslim Egyptian citizens – married in Egypt and shortly thereafter had two children. The husband accepted a job in Dubai, where the couple lived until 2012, when husband was admitted to the MBA program at MIT. After his graduation in 2014, the family moved to New York City when husband accepted an investment associate position at Deutsche Bank.

In 2015, the husband and the wife agreed she would return to Egypt temporarily to give them space to work on their marriage. In July 2015, the wife and the children went to Egypt to stay with her parents. Sometime in October of that year, the wife realized that the husband was not interested in salvaging their marriage. On October 9, 2015, the wife filed for divorce in New York. Shortly thereafter, she filed a motion seeking temporary financial support while the divorce action was pending.

On October 20, 2015, eight days after being served with the wife’s New York divorce complaint, the husband, through a proxy, met with a maʿzūn – a government official similar to a municipal clerk. He asked the official to witness and memorialize his ṭalāq (a type of divorce in Islamic law initiated by the husband) in an administrative action designed to dissolve his marriage. The wife was not present, but she would theoretically thereafter receive a copy of the completed ṭalāq decree notifying her that her husband had divorced her.

A ṭalāq decree in hand, the husband filed a cross motion to dismiss the wife’s New York action. This ṭalāq decree was revocable and not final, and the husband in fact exercised his right to revoke on December 5, 2015. He later filed a second ṭalāq decree in February 2016.

The wife argued that the Egyptian divorce decree (ṭalāq) memorialized by the maʿzūn on October 20, 2015 was fraudulent and had no validity in Egypt or in New York, that the New York action was filed first, and that the purported Egyptian divorce was not authenticated, was not final, and had in fact been revoked.

Over the wife’s objections, the trial court granted the husband’s motion to dismiss the wife’s New York divorce complaint on August 18, 2016, concluding that the parties were already divorced in Egypt. The judge referred jurisdiction to the Family Court in Egypt to determine custody and all marital financial issues. The wife appealed.

Issue

Whether an Egyptian ṭalāq decree should be granted comity in New York, even after a New York action was filed first and the ṭalāq decree was revoked, but later re-initiated.

Ruling

The New York Supreme Court Appellate Division unanimously reversed. They rejected the contention that the doctrine of comity mandates dismissal of the wife’s divorce action for a number of reasons, including that New York’s “first-in-time” rule provides that “the court which has first taken jurisdiction is the one in which the matter should be determined.” The appellate court concluded that the husband’s own unauthenticated ṭalāq decree confirmed that the wife’s divorce complaint was “first-in-time” because the decree expressly stated that the October 13, 2015 ṭalāq was revocable for a period of 90 days and thus not final. Moreover, the husband had revoked that divorce on December 5, 2015, before instituting a second divorce in February 2016.

Further, the husband failed to submit a certification of the Egyptian divorce in the form required by CPLR § 4542(a). Without an affidavit verifying the ṭalāq decree was final and irrevocable under Egyptian law, there was no properly authenticated foreign decree that was admissible or subject to comity.

Against the husband’s forum non conveniens argument, the New York Court of Appeals found is unpersuasive and found that “the matter has a substantial nexus with this state.” Although the wife had moved to Egypt with the two children, the parties had lived in the U.S. for years, the last marital domicile was in New York, and the husband continued to reside and work in New York.

The Appellate Division was clear that New York was the appropriate jurisdiction to determine the financial issues of the marriage but left the question whether child custody should be determined in Egypt or New York to the trial court’s consideration.

Habibi-Fahnrich v. Fahnrich

Not reported in N.Y.S.2d, 1995 WL 507388 (N.Y. Sup., 1995)

Facts

The parties were married in a civil ceremony in New York. Shortly thereafter, the parties held a religious ceremony in Washington, D.C. During the religious ceremony, the parties signed a “sadaq” (marriage contract). The marriage contract stated “The SADAQ being: a ring advanced and half of husband’s possessions postponed.”

Less than one year later, the wife filed a divorce action in New York and requested enforcement of the sadaq. The husband argued that the sadaq did not meet the requirements for enforcement under New York contracts law.

Issue

Whether a sadaq should be enforced in New York under contract law where the material terms are not specific.

Ruling

The court found the sadaq did not meet any requirements under New York contract law. The material terms, which must be specific so that anyone reading can understand the terms of the contract, were vague and undefined. There was also no specifications on what the husband’s possessions included or when the sadaq should be paid. Therefore, the court refused to enforce the sadaq as a valid contract under New York contracts law.

Jackson K. V. Parisa G.

2016 NY Slip Op 50660(U)

Facts

Plaintiff, Jackson K., and defendant, Parisa G. knew each other since childhood and entered a romantic relationship in 2006. On July 11, 2009, plaintiff asked defendant’s parents for permission to marry her. Plaintiff proposed to defendant on July 29, 2009 with an engagement ring purchased by plaintiff and the defendant’s mother. Defendant said yes, and the couple planned a wedding ceremony for September 4, 2010.

Approximately 200 guests attended the “wedding,” during which programs were distributed to guests stating it was the “Wedding of Parisa and Jackson.” The wedding proceeded as a traditional Iranian Islamic wedding.  

A ceremony was performed by Ms. Sholeh Shams, who was flown in from California to be the “Ceremony Officiant” as listed in the wedding program.

The parties’ relationship soured. The husband filed for divorce. Wife moved to dismiss alleging there was no legal marriage.

Issue

Whether the marriage is valid in the state of New York where the ceremony was performed, by an unauthorized official.

Ruling

Defendant’s claim that the marriage is invalid because Ms. Sham is not clergy and the plaintiff was not Muslim was denied.

According to New York law, an officiant at a wedding ceremony is not limited to a traditional concept of a clergy member. Therefore, since the plaintiff has shown that clergy is not needed in the defendant’s denomination, the marriage is valid.

Ohio

Ahmad v. Ahmad

Court of Appeals of Ohio

2001 Ohio App. LEXIS 5303 (2001)

Facts

The parties were married in Jordan in 1991. The couple then moved to Ohio, where they resided for the duration of their marriage. In winter 1998, the couple traveled to Jordan where the husband filed for divorce on December 2, 1998. The husband’s divorce was granted on December 6, 1998.

On December 14, 2018, the wife filed for divorce in Ohio. The husband filed a motion to dismiss, arguing that the Ohio court did not have subject matter jurisdiction since the Jordanian divorce decree was already finalized.

The trial court ruled that the Jordanian divorce decree was valid, but si nce the Jordanian divorce was silent on division of property and spousal support, Ohio would take jurisdiction to handle those issues. The court then ordered the husband to pay spousal support and equitable distributed the couple’s assets, including the real estate and husband’s pension; the court also awarded the wife counsel fees.

Issue

Whether the Ohio courts had subject matter jurisdiction to divide the couple’s assets and order the husband to pay spousal support after a Jordanian divorce decree terminated the parties’ marriage.

Ruling

On appeal, the appellate court affirmed the lower court’s ruling in favor of the wife. The court found that the couple was domiciled in Ohio, the husband was a U.S. citizen, and the Jordanian divorce violated the Wife’s due process and Ohio public policy. Therefore, the appellate court found no abuse in the trial court’s assessment and division of marital property, spousal support, and attorney fees.

Hashime-Bazlamit v. Bazlamit

2009 WL 2079948 (Ohio App. 3 Dist., 2009)

Facts

The parties were married in Jordan on November 27, 1993. The parties thereafter moved to Ohio, where they had two children In May 2007, the wife and the children traveled to Jordan to visit wife’s family. Roughly a month later, the husband traveled to Jordan and filed for divorce. The wife was served with the revocable divorce while in Jordan. Additionally, the husband placed a travel ban on the minor children, prohibiting them from returning to their home in the U.S.

Over six months later, on January 17, 2008, the wife filed for divorce in Ohio. On December 1, 2008, the magistrate filed a decision dismissing the wife’s amended complaint for divorce as the Jordanian divorce decree was valid and entitled to recognition in Ohio and the issues of custody, child support, visitation, alimony, and dowry had all been resolved in the Jordanian divorce proceedings. The trial court adopted the magistrate’s decision and dismissed the case with prejudice on December 16, 2008. The wife appealed.

Issue

Whether a Jordanian divorce should be enforced for nonresident spouses in Ohio, and whether or not Ohio would be the home state of children who had been prevented from returning to Ohio.

Ruling

On appeal, the appellate court first addressed the wife’s failure to file a timely objection to the magistrate’s decision in December 2008. Objections were to be filed within fourteen days, but wife failed to timely object. The magistrate’s decision was then adopted by the trial court and the wife’s case was dismissed. Under Ohio case law, if a party does not properly object to a conclusion of law or finding of fact by a magistrate, the party is precluded from raising the issues for the first time on appeal.

Zawahiri v. Alwattar

2008-Ohio-3473 (Ct. App. 2008)

Facts

The parties were married on February 2, 2006 and entered into an Islamic Marriage Contract which contained a mahr provision. The mahr provided for immediate payment of a ring and certain gold that the husband had already given to the wife and a deferred payment of $25,000.00. The parties executed the document before two witnesses and the religious cleric that solemnized the marriage.

The husband filed for divorce and the wife countered, seeking enforcement of the $25,000.00 postponed portion in her Islamic Marriage Contract. The trial court refused to enforce the Islamic Marriage Contract on two grounds: (1) separation of state and church; and (2) the Islamic Marriage Contract was an invalid prenuptial agreement under Ohio law.

Issue

Whether a prenuptial agreement is valid where the husband was pressured into signing the mahr provision and did not have an attorney present.

Ruling

On appeal the court affirmed the trial court’s decision, holding that the prenuptial agreement is invalid under Ohio law. To have a valid prenuptial agreement, Ohio law requires that (1) the parties enter into the agreement freely without fraud, duress, coercion or overreaching; (2) there is full disclosure or full knowledge and understanding of the nature, value, and extent of the prospective spouse’s property; and (3) the terms promote divorce or profiteering by divorce. In this case, the appellate court found that the first element was lacking, as the husband entered into the marriage contract as a result of overreaching or coercion by the wife. There were two reasons for the court’s findings. First, the issue of including a mahr provision in the Islamic Marriage Contract was raised by the religious Imam only two hours prior to the beginning of the ceremony with family and guests already present. The husband agreed to a postponed mahr because he was embarrassed and stressed. Second, the husband did not consult with an attorney prior to signing the Contract. Thus, the court found this demonstrated overreaching and coercion.

For the first time on appeal, the wife raised the argument that her Islamic Marriage Contract was not a prenuptial agreement but simply a general contract. Because she failed to raise this argument at the trial level, the appellate court waived the argument and did not permit the wife to raise it for the first time on appeal.

Pennsylvania

Alkhafaji v. TIAA-CREF

2010 WL 1435056 (Pa.Com.Pl. 2010)

Facts

This case is a dispute over the proper beneficiary of a decedent’s retirement certificate. The decedent, as per the Property Settlement Agreement with his second wife in 1995, listed his son from his second marriage and two daughters from his first marriage as beneficiaries of his retirement account. However, his Will provided that the beneficiaries of his pension were his third wife and all his biological children. In addition, the Will provided that the pension be distributed according to Islamic law. He wrote this will prior to his death, when he was hospitalized as a result of deteriorating health.

After decedent’s death, petitioner – third wife – sent a copy of his Will to the pension administrator. The respondents argued that the Will was not sufficient to change the beneficiary designation on the pension.

Issue

Whether the decedent’s Last Will and Testament was sufficient to effectuate a change of beneficiary given decedent’s deteriorating health and hospitalization prior to his death.

Ruling

The court found that the Will was sufficient written notice to effectuate the change in his life insurance. Under Pennsylvania law, an insured may change the beneficiary of his life insurance policy by making a reasonable effort under the circumstances to effect the change. In making its findings, the court noted that the decent made reasonable efforts to change the beneficiary, as he was hospitalized the entire time after an accident in March 2007 where he became a quadriplegic and was therefore confined to the hospital. Thus, the pension was distributed according to the decedent’s Will.

It is noteworthy that the court, in reviewing the marital settlement between the decedent and his second wife, found that there was no language to indicate that the beneficiary set forth in the marital agreement were to be the sole and exclusive beneficiaries of the account. Nor was there any provision in the marital settlement agreement that prevented or prohibited the decedent from changing beneficiaries of the account or prohibited or prevented him from adding beneficiaries to the account.

In sum the court found that the decedent’s Last Will and Testament was sufficient to comply with Pennsylvania law and his pension was distributed in accordance with Islamic law.

Tennessee

Aghili v Saadatnejadi

958 S.W.2d784 (Tenn.App.,1997)

Facts

The parties obtained a marriage license and were married by Mr. Tarahian, an individual knowledgeable in Islamic Law. The parties signed the marriage license, but Mr. Tarahian did not sign it. On May 4, 1995, the husband filed for divorce or annulment and the wife counterclaimed for divorce on the basis of fraud or misrepresentation. The husband moved for summary judgment, arguing “the marriage was invalid because Mr. Tarahian was not qualified to solemnize marriages and because the marriage license had not been returned to the Rutherford County Clerk within three days following the December 17, 1994 ceremony.” The trial awarded summary judgment to the husband. The wife appealed the decision.

Issue

Whether a marriage is invalid where the officiant was not an official of a religious institution and the marriage license was not filed within the time prescribed by law.

Ruling

The appellate court reversed the trial court’s decision, holding that Mr. Tarahian was authorized to solemnize the marriage and his failure to return the marriage license within three days of the ceremony did not invalidate the marriage. Tennessee law presumes all marriages to be valid unless cogent and convincing evidence is provided to prove the marriage is invalid.

The court noted that Islamic law only requires the officiant to be knowledgeable in Islamic law and does not need to hold the title of Imam for the marriage to be valid. The court found Mr. Tarahian to be knowledgeable in Islamic jurisprudence as the Muslim community recognizes his competence. Since Mr. Tarahian is knowledgeable in Islamic law, he was authorized to solemnize the marriage.

Additionally, the court noted that as long as the officiant is authorized to solemnize the marriage, “[t]he failure of an officiant to return the marriage license to the issuing clerk within three days after the ceremony does not invalidate the marriage.” Moreover, the court stated that the purpose of the filing requirement was fulfilled, as Mr. Taharian’s filing of the marriage license in February provided a reliable and accurate record of the marriage. Since the husband was unable to provide cogent and convincing evidence that the marriage was invalid, the appellate court held the marriage to be valid.

Texas

Ahmed v. Ahmed

261 S.W.3d 190

Facts

The parties were married in a civil ceremony in November 1999. In May 2000 they were married under Islamic law and executed a Marriage Contract which included a mahr in the sum of $50,000.00 deferred payment. The parties divorced and the trial court awarded the wife $50,000.00 as liquidated contract damages, as it construed the mahr to be a valid, binding, and enforceable premarital contract under Texas law.

Issue

Whether the mahr agreement should be construed as a premarital contract where the parties entered into a civil wedding ceremony and subsequently signed the mahr agreement.

Ruling

The appellate court reversed, holding that “because the parties participated in a valid civil wedding ceremony six months before signing the mahr agreement, they were already spouses, not ‘prospective spouses’ and their agreement could not have been made ‘in contemplation of marriage.” Thus, the trial court erred in enforcing the mahr agreement as a premarital agreement.

In the alternative, wife argued that the mahr agreement should be enforceable as a post-marital agreement. While the appellate court recognized that the mahr agreement was sufficiently specific in this case so as to be a legally binding contract, it was unable to conclude whether the mahr agreement could constitute a valid post-marital agreement under Texas law because evidence was lacking to prove other statutory requirements. Specifically, partition and exchange agreements require an intent to convert community property into separate property and the record was devoid of any evidence that the parties intended the mahr agreement to operate in such manner. Despite its findings, the court remanded the matter and allowed the wife another opportunity to prove an enforceable marriage contract on grounds other than a premarital agreement.

Virginia

Abdallah v Sarsour

2006 WL 1134034 (Va. Cir. Ct.)

Facts

The parties were married on January 30, 2000 in the state of Virginia according to Islamic law and executed a Muslim Marriage Contract. As part of the divorce litigation, the wife sought enforcement of the Contract. It provided that the husband pay an immediate dower of $10,000.00 upon the marriage and the wife’s undergraduate expenses up to $15,000.00 as they became due. The husband argued that the document was void for vagueness because the term “later” was used to designate the time of performance of the dower. Additionally, he argued that the Contract was void for failure of consideration because the wife failed to remain in the marriage as required under Islamic customs.

Issue

Whether the Marriage Contract is enforceable where the term “later” was used to designate the time of performance of the dower and the wife failed to remain in the marriage as required under Islamic customs.

Ruling

The court ruled in favor of the defendant. The court held that the Contract was not void for vagueness, explaining that “where an agreement is to pay money and no time is specified, it is interpreted as being an agreement to pay the same on demand; and if it is an agreement to do something other than to pay money, it is interpreted as a promise to do it in a reasonable time.” Thus, the term “later” as used to designate the time of performance of the dower would be interpreted as requiring payment on demand. Accordingly, the court directed the husband to pay the $10,000.00 dowry as requested.

Additionally, the court rejected the husband’s argument that the Contract was void for failure of consideration. The court noted that the Contract was fully integrated, as it set forth the offer to marry and pay the two obligations and the acceptance of the offer and the proposed dowry. Therefore, the court was not required to consider additional terms such as Islamic customs. Accordingly, the court directed the husband to pay a portion of the wife’s undergraduate expenses actually incurred.

Afghani v. Ghafoorian

2010 WL 1189383 (Va.App)

Facts

The parties were married in Iran after executing a “Deed of Marriage,” – a Muslim Marriage Contract. The document provided the “gift of a tome of Holy Koran valued at 50,000 Rials [Iranian currency], a bar of rock candy, and the pledge of five hundred fourteen (514) full Bahar-e Azadi (Liberty Spring) gold coins remaining totally the liability of the husband who must pay the above-mentioned wife.” The fair market value of the gold coins is approximately $141,100 U.S. dollars.

The parties subsequently filed for divorce in Virginia. The Circuit Court construed the Contract as a premarital agreement and awarded the wife all provisions, including the 514 gold coins. On appeal, the husband argued that the property under the Contract should be equitably distributed as marital property.

Issue

Whether the Marriage Contract should be construed as a premarital agreement where there was “a binding contract entered by the parties.”

Ruling

The appellate court affirmed the Circuit Court’s decision enforcing the Marriage Contract as a premarital agreement. The court noted that the Circuit Court based its decision on its finding that the gold coins were “due and payable under the binding contract entered by the parties,….” (Emphasis added). Additionally, the appellate court stated that “[i]n Virginia, parties are permitted to enter into premarital agreements, which are akin to contracts, in which they can ‘contract with respect to…[a]ny other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing criminal penalty.”

Chaudhary v. Ali

1994 Va. App. LEXIS 759; 1995 WL 40079 (VA Ct.App. 1995)

Facts

The parties were married in Pakistan. During the religious ceremony, the parties signed a nikah nama (marriage contract). The marriage contract essentially barred the wife from receiving any assets or support in the event of a divorce.

Issue

Whether a Pakistani nikah nama was an enforceable prenuptial agreement.

Ruling

The court held that a nikah nama was not a valid prenuptial agreement as there were no fair or reasonable provisions, no disclosure of the husband’s assets, and the wife did not receive independent legal advice before signing. Thus, the court awarded the wife spousal support.

Farah v. Farah

429 S.E.2d 626 (1993)

Facts

The parties were married on July 31, 1988 via proxy in England under Islamic law. They signed a “Nikah,” a marriage contract, which included a dower of $20,000 deferred payment. Neither the husband nor wife was present in England at the time the marriage was solemnized. After the marriage was solemnized, the parties went to Pakistan, the wife’s home country, to attend a wedding reception that her father held for them. Subsequently, the parties returned to Virginia and lived together for one year. They did not have a civil ceremony in Virginia. The parties separated on June 29, 1989. The husband filed to have the marriage void and the wife filed for divorce and equitable distribution.

The trial court held in favor of the wife, granting the parties a divorce and equitable distribution. During trial, the husband presented evidence that the marriage was void ab initio under British law because they did not perform the formalities required under the Marriage Act of England. However, the trial court found that since Pakistan recognizes Islamic law, the marriage was valid in Pakistan and therefore, Virginia should grant comity to Pakistan’s recognition of the marriage. The husband appealed this decision.

Issue

Whether a marriage is valid where the parties contracted and celebrated a marriage in Country A and did not perform the formalities required under the laws of that country.

Ruling

The appellate court reversed the trial court’s decision, holding the marriage to be void ab initio under British law. The court found that British law governed because the marriage was “contracted and celebrated in England.” Since the parties did not perform the formalities required under British law, the marriage was void. Moreover, the court noted that the parties did not create a common-law marriage in another jurisdiction, which Virginia would have recognized.

Washington

Altayar v. Muhyaddin

139 Wash.App. 1066 (Wash.App.Div. 2007)

Facts

The parties were married in Amman, Jordan in July 2000 and entered into a Marriage Certificate/Contract under Islamic law. The Contract provided a dowry of one Quran and payment of 19 grams of 21 karat gold in the event of a divorce or death.

The wife filed for divorce in Washington and sought all her rights under state law. The trial court found that the Islamic Marriage Contract was not a prenuptial agreement and applied state law to adjudicate all issues arising out of the marriage. On appeal the husband argues that the Islamic Marriage Contract was a valid prenuptial agreement and therefore, the wife should only receive that which was provided for in the Contract.

Issue

Whether the Islamic Marriage Contract should be construed as a prenuptial agreement where the Contract provisions are unfair on its face.

Ruling

The appellate court ruled in favor of the wife. The court held that a “prenuptial agreement is valid only when it is plainly shown that the transaction was fair.” In this case, the court found that “the exchange of 19 pieces of gold for equitable property rights under Washington law is not fair and [husband] presented no evidence to prove otherwise. Even if it were a fair agreement, there is no evidence that he disclosed his assets or that [wife] received any independent advice in the three days between their initial meeting and marriage”. Thus, the court found the prenuptial agreement was invalid.

In Re. Marriage of Obaidi

154 Wash.App. 609, 226 P.3d 787 (2010)

Facts

The parties were married on December 30, 2005 in the State of Washington under Islamic Law. They entered into a Islamic Marriage Contract which included a mahr provision written in Farsi. The husband did not speak, read, or write Farsi. The mahr was $100.00 immediate and $20,000.00 postponed. The parties executed the contract before two witnesses and a religious Imam conducted the marriage. The terms of the mahr provision were explained to the husband after he had executed the document.

The wife later filed for divorce, seeking enforcement of the $20,000.00 postponed payment. The trial court ruled in favor of the wife. On appeal, the husband argued that the mahr provision was unenforceable under contract law or as a prenuptial agreement.

Issue

Whether the mahr agreement is enforceable where one party executed the document without understanding the terms of the contract until after signing.

Ruling

The appellate court reversed, holding that neutral principles of contract law governed the interpretation and enforceability of the prenuptial agreement. The court held that a valid contract requires “mutual assent, offer, acceptance and consideration.” Here, the court concluded that the contract was invalid for lack of mutual assent. Specifically, the court noted that a meeting of the minds did not exist because: 1) the husband was advised of the mahr ceremony 15 minutes before he signed the document, 2) he did not read, write, or speak Farsi, and 3) was unaware of the terms of the agreement until they were explained to him by an uncle after the document was signed. The court also held that there was duress and pressures to sign the agreement by family.