Wednesday, June 01, 2016

Recognition and Enforcement of Mahr Agreements in New York


By
Prof. Gabriel Sawma

In 2012, a client called me seeking expert opinion on recognition of a divorce decree issued by the highest court in Abu Dhabi. The decree granted divorce, mahr, and child custody to the wife. The case can be summarized as follows:

The couple are US citizens of Egyptian background. They lived in New York until 2006, where their two children were born. They moved to Abu Dhabi, UAE, where the husband had gotten a job.

The marital relationship soured and the husband attacked his wife, inflicting “severe bruises and a fractured skull.” As a result, the husband was convicted of assault in Abu Dhabi, on the grounds that he had crosses his legal limits to discipline his wife according to the UAR court. The husband “never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The husband’s assault formed the grounds for the wife to seek divorce in Abu Dhabi. The court granted her the divorce, awarded her the mahr of $250,000, ordered the husband to pay child support and some amount of spousal support, and gave the wife custody of the children.

The court proceedings in Abu went through three tiers of judiciary: The Court of the First Instance, the Court of Appeal and the Court of Cassation, which is the highest court in the UAE.

Following the decision of the Court of Cassation, the husband returned to the United States without notifying the plaintiff, and brought with him the passports of the children without the knowledge of the wife. It took the wife several months to get temporary passports from the US Embassy to return to the United States.

Once in New York, the ex-wife initiated divorce proceedings at the Supreme Court of Westchester County seeking recognition and enforcement of the decree obtained from the UAE. This author submitted an affidavit to the Supreme Court on behalf of the wife and was cited by both the Supreme Court and the Appellate Division, Second Judicial Department. The court order is available at this link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Supreme Court recognized the UAE divorce in the following terms: “The general principle of aw is that a divorce decree obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York…Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States…Loosely, [comity] means courtesy, respect, or mutual accommodations; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which is won’t.”


The Court Recognizes the Mahr Agreement in the Abdu Dhabi Judgment of Divorce
Mahr is the amount of money or goods that the groom pays his future wife in anticipation of marriage. It is part of the marriage contract; it can be paid at the marriage ceremony (prompt) or in the event of divorce, or death of the husband (deferred). Mahr is considered to be the wife’s sole property and may not be taken over by the husband, nor by her father or other relatives. In the case at hand, the husband promised to pay his wife, in the event of divorce, an amount of $250,00 as her mahr .

The Supreme Court of Westchester County recognized the divorce decree and all its contents, including the mahr agreement of $250,000. The court agreed that the mahr agreement was “executed as part of a religious ceremony two months after the parties’ civil marriage on July 19, 1998.” The court reasoned that: “In seeking recognition, entry, and enforcement of the Abu Dhabi judgment in the amount of $250,000 pursuant to the Mahr agreement, the plaintiff is not seeking any new relief against the defendant, but rather, she is asking this Court to perform the ministerial function of recognizing the foreign country’s judgment and converting it into a New York judgment… “New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts, ‘and in accordance with that tradition, the State adopted the Uniform Foreign Country Money-Judgments Recognition Act as CPLR article 53. . . . Article 53 applies to any foreign country judgment which is final, conclusive and enforceable where rendered’. . . and a foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money” . . .Unless a ground for non-recognition exists under CPLR section 5302, a foreign money judgment is to be recognized under the doctrine of comity. 

“[T]he inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York’s concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law. If the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under will-settled comity principles without microscopic analysis of the underlying proceeding” . . . Moreover, it is not required that the “foreign tribunal’s procedures exactly match those of New York. Rather, [CPLR sec. 5304 (a)(1) is satisfied if the foreign court’s procedures are compatible with the requirements of due process of law” 


The Mahr Agreement Can Be Enforced in Civil Courts Pursuant to Neutral Principles of Law
As long as enforcement does not violate either the law or the public policy of the state, an agreement predicated upon religious and customs is enforceable in a civil court. The Supreme Courts stated that: “The First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,” a State may adopt any approach to settling these disputes, “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith” (Jones v. Wolf, 443 US 595, 602 [1979]; Avitzure v. Avitzur, 58 NY2d at 114). Use of the “neutral principles of law” approach, which “contemplates the application of objective, well-established principles of secular law to the dispute,” has been found to be “consistent with constitutional limitations.” This approach permits “judicial involvement to the extent that it can be accomplished in purely secular terms.”

In its final analysis, the court agreed with our argument that a “mahr agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a free exercise’ of religious beliefs, no matter how diverse they may be.” A mahr agreement will survive constitutional challenges and can be enforceable as a contractual obligation.


The Appellate Division, Second Judicial Department Affirms
On January 20, 2016, the Appellate Division, Second Department affirmed the decision of the trial court. In its opinion, the Appellate Court stated: “Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law Sec. 236(B) (3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby (see Greschler v Greschler, 51 NY2d 368; Rabbani v Rabbani, 178 AD2d 637). Accordingly, the court properly granted that branch of the plaintiff’s motion which as to enforce so much of the judgment of divorce as awarded the plaintiff the sum of $250,000 pursuant to the mahr agreement.” (See the Affirmation Order of the Appellate Division at this link: http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2012-11549.html


DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA. 
·        Professor: Middle East Studies at Fairleigh Dickinson University.
·        Lawyer with Middle East Background; Graduated from the Lebanese University, school of law.
·        Admitted to the Lebanese Bar Association of Beirut.
·        Practiced law in Beirut.
·        Nominated to be a judge in Lebanon, Lebanese Judicial Studies.
·        Supervised contracts in Europe and the Middle East.

·        Travelled extensively to the Middle East, including Lebanon, Syria, Jordan, Saudi Arabia, Qatar, Bahrain, United Arab Emirates.
·        Worked in Saudi Arabia.

·        Expert consultant on Islamic law.

·        Expert consultant on Islamic divorce in USA.

·        Expert consultant on mahr agreements in Islamic marriage contracts.

·        Expert consultant on Islamic finance.



Professor at Fairleigh Dickinson University


Taught the following courses:
·        Arabic 1001, Fall 2007, Spring 2008
·        Arabic 1002, Spring 2008
·        Arab Culture and Civilization, Fall 2009
·        Arab-Islamic Culture and Civilization, Fall 2011
·        Near East as Source of Western Culture
·        Middle East Constitutional Law – comparative study, including Islamic law of marriage, divorce, child custody and inheritance

Lecturer on Islamic Finance at the University of Liverpool:

Course taught at Mercer Community College, West Windsor, New Jersey, Fall 2011.
·        Arabic 101


Professor of Arabic 101 at Princeton Adult School in Princeton, NJ (2010, 2011, 2012, 2013)


Lecturer on Islamic Shari’a and its sources. See my lecture at Fairleigh Dickinson University to students and faculty:


Expert Consultant on Muslim family laws of the Middle East, Central and southeast Asia, Africa, and India.


Expert Consultant of Islamic divorce in USA, see our website at:


Featured on the BBC as, “Expert Consultant on Islamic divorce in USA.” The interview is posted on BBC’s website:


Featured on CNN as “Professor and Expert Consultant on Islamic sharia law.” The interview is posted on CNN’s website:


Editor in chief of a blog on International Law, mainly Islamic law of marriage, divorce and custody of children:



Won A Landmark Case In New York Involving Recognition of a Foreign Divorce Judgment including custody, and securing a mahr of $250,000 for the client
In 2012, the Supreme Court of Westchester County handed down a decision in favor of my client. The court recognized a divorce decree obtained from Abu Dhabi (UAE), including custody of children and recognizing a mahr agreement of $250,000. The entire court order is available on this link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Appellate Division Affirms
On January 20, 2015, the Appellate Division, Second Judicial Department, issued a ruling, in which the Court affirmed the decision of the lower Court. The decision of the Appellate Division is available on this link: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2016/D47647.pdf


Won A Landmark Case Involving Custody of Children
Saudi Arabia’s Shari’a Court issued a custody order against a U.S. citizen woman who was married to a Saudi husband. The husband obtained a court judgment from Saudi Arabia granting him custody of his two daughters. The Court in Allegheny, Pennsylvanian agreed with our argument that Saudi Arabia does not have jurisdiction, and the custody order violates Pennsylvania public policy and that Saydi Arabia is in violation to international human rights treaties.

The court order is not published yet, but I have a copy at request. Once published, I will post the link online. For more information on Abduction of children or fear of abduction to Muslim majority countries, please see our website at: www.gabrielsawma.blogspot.com

Author of dozens of articles dealing with Islamic divorce in USA and on International Law: Most of these articles can be found on our website at, http://www.gabrielsawma.blogspot.com

Following is a partial list of my articles on Islamic and Hindu Divorces:[1]

·        Iraqi Divorce in U.S. Courts
·        Yemeni Divorce and U.S. Immigration
·        Egyptian Divorce and U.S. Immigration
·        Palestinian Islamic Divorce of West Bank in USA
·        Saudi Divorce in USA
·        Saudi Divorce and U.S. Immigration
·        Saudi Arabian Child Custody Cases in USA
·        Pakistani Divorce and U.S. Immigration
·        Muslim Divorce in Tunisia
·        Muslim Divorce in Bangladesh
·        Marriage of Minors in Islam
·        The Iddat of a Woman in Islam
·        Muslim Men Marrying Non-Muslim Women
·        The Law of Marriage and Divorce in the United Arab Emirates
·        Islamic Syrian Divorce in USA
·        Islamic Yemeni Divorce in USA
·        Islamic Jordanian Divorce in USA
·        Recognition of Hindu Divorces in New York State
·        Islamic Divorce in New York State
·        The Khul’ Divorce in Egypt
·        Islamic Women Divorce Laws in Egypt
·        Muslim Iranian Divorce in USA
·        Pakistani Islamic Divorce in U.S. Courts
·        Islamic Lebanese Divorce in USA
·        Islamic Marriage Over the Phone, an interview with BBC, (see above)
·        Islamic Sharia in Theory and Practice, a Lecture at FDU, (see above)
·        Divorce in Egypt, an interview with CNN, (see above)
·        Annulment of Islamic Marriages
·        The Wali (guardian) in Islamic Marriages According to Hanafi Jurisprudence
·        Islamic Marriage Contracts in the Hanafi Jurisprudence
·        The Jihaz in Islamic Marriages
·        The Nafaqa in Islamic Marriage
·        The Mahr in Islamic Marriage Contracts
·        Indian Divorce in US Courts
·        Application of Islamic Sharia in US Courts
·        Abduction of children to Muslim Majority Countries
·        Abduction of American children to Saudi Arabia
·        Abduction of American Children to Jordan

Wrote extensively on International law in the area of the European Union Law. Following are excerpts:
§  Limitations on the Effectiveness of Trademark Laws in the European Union, Case Study, http://gabrielsawma.blogspot.com/2005/04/limitations-on-effectiveness-of.html
§  Islamic divorce in U.S. courts, http://www.phillyimc.org/en/islamic-divorce-us-courts
§  Prohibition of interest in Islamic banking and finance, http://searchwarp.com/swa615826-Prohibition-Of-Interest-In-Islamic-Banking-And-Finance.htm
§  the Scope of Immunity for Heads of States under International Law, http://searchwarp.com/swa65501.htm
§  The mahr provision in Islamic marriage contract, http://searchwarp.com/swa521011-The-Mahr-Provision-In-Islamic-Marriage-Contracts.htm
§  Application of Islamic shari’a in U.S. courts, http://gabrielsawma.blogspot.com/2008/06/application-of-islamic-sharia-in-us.html
§  Muslim brotherhood and the Middle East Upheaval, http://miami.indymedia.org/news/2011/04/22114.php



Partial List of my Articles on International Law:[2]
·        The Shebaa Farms Under International Law
·        The Nigerian Scam and its Impact on Global Economy
·        Public International Law and Organizations

LANGUAGES
Speak, read and write: Arabic, English, French, Syriac, Biblical and Talmudic Aramaic


BAR ASSOCIATIONS
1.     Admitted to the Lebanese Bar Association of Beirut since 1970
2.     Former Associate Member of the New York Bar Association, 1982
3.     Former Associate Member of the American Bar Association, 2003




CONTACT INFORMATION:

Gabriel M. Sawma

Cell (609) 915-2237


               




[1] These articles are published and can be accessed on this blog.
[2] These articles can be accessed on http://www.gabrielsawma.blogspot.com

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