Abed Awad, U.S. Editor, summarizes one of his recent cases on family law in which the defendant claims his maʿzūn-authenticated ṭalāq defers judgment of the divorce to the Family Court in Egypt.
A revocable ṭalāq is not a final divorce to defeat a pending New York divorce action, said the New York Apellate Division
The story of Fouad v. Magdy, No. 312366/15, 2017 WL 485798 (N.Y. App. Div., 2017) starts in Egypt. In 2006, Dina and Amr—both Muslim Egyptian citizens—fell in love. They married shortly thereafter in Egypt and had two children. Amr accepted a job in Dubai, where the couple lived until 2012, when Amr was admitted to the MBA program at MIT. After his graduation in 2014, the family moved to New York City when Amr accepted an investment associate position at Deutsche Bank.
It seemed like the parties had everything going for them, until Amr admitted he was having an extramarital affair. Amr convinced Dina to return to Egypt temporarily to give them space to work on their marriage. In July 2015, Dina and the children went to Egypt to stay with her parents. Sometime in October of that year, Dina realized that Amr was not interested in salvaging their marriage. On October 9, 2015, Dina 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 Dina’s New York divorce complaint, Amr, 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 law seemed to be on his side in Egypt. In Egyptian law, the maʿzūn possessed the non-judicial authority to preside over marriages and these types of male-initiated divorces. In addition, Egyptian law, like Islamic law, permits Muslims to marry and divorce by proxy, that is, to have a representative in his or her stead to marry or divorce on his or her behalf. (In Egypt, a marriage is dissolved through either judicial dissolution or administrative dissolution. Amr chose to go the administrative route.). Dina was not present, but she would theoretically thereafter receive a copy of the completed ṭalāq decree notifying her that Amr had divorced her.
A ṭalāq decree in hand, Amr filed a cross motion to dismiss Dina’s New York divorce action, intending to circumvent the application of the more favorable financial rights Dina would have under New York family law. Egyptian law, for example, does not recognize the equitable distribution of marital assets or New York-style post-divorce alimony.
Amr presented the trial court with an unauthenticated copy of a ṭalāq certificate, stating simply, “The Husband’s proxy did attend and declared that on 13/10/2015 that the mentioned Husband had divorced his . . . Wife . . . by saying to her: ‘You are divorced by me.’”
Under Egyptian law, according to Article 5 of the Egyptian Family Code, every divorce action initiated by a husband through the ṭalāq procedure is a revocable divorce, up until the third time. [1]A revocable divorce means that, when a husband initiates a ṭalāq proceeding, Egyptian law considers the husband’s request to dissolve the marriage to be a request that he can withdraw upon his request by reconciling with his wife anytime before the divorce becomes final. Generally consistent with classical Islamic law, Egyptian law also states that the husband has the right to revoke his marriage dissolution-by-ṭalāq request within three months. If he does not, the divorce becomes final and irrevocable. A husband is entitled to revoke his ṭalāq request only twice. On a third time, the ṭalāq decree becomes is irrevocable and is made final after 90 days (to coincide with classical Islamic law’s “divorce waiting period (ʿidda)” of a woman’s three monthly cycles).[2] It is only if and when the wife marries and then divorces a third party that her former husband would be an eligible candidate for remarriage.
Amr’s ṭalāq certificate confirmed that he had entered into his first revocable attempt to secure divorce-by-ṭalāq, which would become final only upon the expiration of 90 days. Consistent with Islamic and Egyptian law, the ṭalāq certificate also advised Amr that he could revoke his request during a 90-day waiting period and resume his marriage with Dina without her consent or permission. Amr actually exercised his right to revoke the ṭalāq on December 5, 2015. Amr later filed a second ṭalāq decree in February 2016.
Dina informed the New York trial judge 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. She provided substantial documentary evidence to support her claim.
Over Dina’s objections and documentation, the trial court granted Amr’s motion to dismiss Dina’s New York divorce complaint on August 18, 2016, concluding that that the parties were already divorced in Egypt. The judge and referred jurisdiction to the Family Court in Egypt to determine custody and all marital financial issues. Dina appealed.
The New York Supreme Court’s Appellate Division, First Department, unanimously reversed:
We reject the husband’s contention that the doctrine of comity mandates dismissal of the wife’s divorce action. Initially, 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 New York Supreme Court’s Appellate Division correctly concluded that Amr’s own unauthenticated ṭalāq decree confirmed that Dina’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 New York Supreme Court noted that “the wife avers that the husband did in fact revoke that divorce on December 5, 2015, before he allegedly instituted a second divorce in February 2016.”
Amr’s failure to submit a certification of the purported Egyptian divorce in the form required by CPLR § 4542(a) was correctly highlighted by the New York Supreme Court. Without an affidavit verifying that the October 20, 2015 ṭalāq decree was final and irrevocable under Egyptian law, there was no properly authenticated foreign decree that was admissible or subject to comity.
As to Amr’s forum non conveniens argument (see CPLR 327)—the New York Court of Appeals called it unpersuasive.[3] Finding that “the matter has a substantial nexus with this state,” the Court concluded that:
Although the wife, upon separating from the husband, moved with the two children to her parents’ home in Egypt, the parties had lived in the United States for the final three years of their nine-year marriage, the last marital domicile was in New York, and the husband continues to reside and work in New York, the last factor having particular significance to financial issues in this matter.
Similarly, the Appellate Division found no merits to Amr’s argument that the trial court lacked subject matter jurisdiction to determine custody. New York was the children’s home state. The Court accordingly clarified that financial issues in this matter shall be determined in New York, and left for the trial court’s consideration only the question whether child custody should not be determined in Egypt, where the children currently reside.
During oral arguments, the Appellate Division acknowledged that even if the ṭalāq decree were valid, New York Domestic Relations Law section 236(b)(2) accommodates “proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.” The Court was essentially saying that the lower court erred irrespective of the question whether the ṭalāq decree was entitled to comity.[4]
There is more. Even if the Egyptian ṭalāq decree were final, properly authenticated, and did not violate New York public policy, that decree would dissolve the marital status only, without determining equitable distribution, alimony, child support or counsel fees. The Appellate Division was clear that New York is the appropriate jurisdiction to determine these financial issues.
This case represents a correct reading of the law that rejected a husband’s attempt to circumvent the application of New York family law by injecting a foreign divorce – here an Egyptian Islamic law ṭalāq – while a previously filed New York divorce was pending. In sum, the husband’s legal strategy failed as the wife’s fair claims prevailed through the application of U.S. law to sensitive questions of Islamic family law as they arose in court.
Abed Awad, Esq., SHARIAsource U.S. Editor, represents Dina Foud.
Follow him @abedawadesq.
[1] Article 5, Personal Status Code of Egypt, Law 25 for year 1929, amended by Law number 100 for year 1985. “Personal Status Law of Egypt.” http://www.mohamoon.com/montada/Default.aspx?action=ArabicLaw&ID=11 (accessed March 6, 2017).
[2] The common rationales given for this period under classical Islamic law is (1) to give the parties a cooling-down period to determine if there is a reasonable prospect for reconciliation; and (2) to make sure that the wife is not pregnant. If she is pregnant, she is entitled to support until she delivers.
[3] “Rule 327. Inconvenient forum. (a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action. (b) Notwithstanding the provisions of subdivision (a) of this rule, the court shall not stay or dismiss any action on the ground of inconvenient forum, where the action arises out of or relates to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part.” “CPLR 327.” New York Civil Practice Law & Rules. http://www.newyorkcplr.com/327.php (accessed March 6, 2017).
[4] Comity is “the legal principle that political entities (such as states, nations, or courts from different jurisdictions) will mutually recognize each other’s legislative, executive, and judicial acts. The underlying notion is that different jurisdictions will reciprocate each other’s judgments out of deference, mutuality, and respect.” “Comity.” Legal Information Institute, Cornell University Law School. https://www.law.cornell.edu/wex/comity (accessed March 6, 2017).