Opinion
Decided June 18, 2008.
DAVID I. GRAUER, Esq., Attorney for Plaintiff.
ELI FEIT, Esq., HELLER, HOROWITZ FEIT, P.C, Attorney for Defendant.
This is a motion by the plaintiff (hereafter wife) for omnibus pendente lite relief. The defendant (hereafter husband) cross moves for an order pursuant to CPLR 3211(1) and (7) dismissing the complaint.
The parties were married in what is referred to as a "customary marriage" in Ghana on April 20, 1977. Neither party has alleged that said marriage was ever registered, licensed or otherwise officially validated by any civil authority of the Republic of Ghana. There are two emancipated children of the marriage. The Court gleans, from documents submitted by the husband, that a "customary marriage" is "customarily dissolved" when the wife's family returns the "customary drinks which originally sealed the marriage" to the head of the husband's family. In addition, said Act apparently authorizes the male heads of the husband's and wife's families to jointly petition the court in Ghana for an order confirming the validity of the "customary divorce" and the freedom of the former spouses to remarry. According to a document signed by the Deputy Consul-General of the Republic of Ghana stationed in New York, "customary divorces," performed in conformity with section 41(2) of the Matrimonial Causes Act (Act. 367 of 1971) may be civilly confirmed by an order granted by a competent Registrar.
An order issued on August 28, 1997 by the Circuit Court of Ghana, sets forth that on August 27, 1997, J. A. (the husband's uncle) and K. F. (the wife's father) filed a joint petition in support of an ex-parte motion seeking confirmation of the customary dissolution of the parties' "customary marriage". Upon hearing J.K. Yeboah, Esquire, counsel for the applicants, the Circuit Court confirmed that the "customary marriage" of the parties' had been customarily dissolved on July 1, 1994; that the "customary divorce" was recognized under the laws of Ghana; and that both parties had been free to remarry since July 1, 1994. The document signed by the Deputy Counsel-General affirms that the order issued by the Circuit Court dissolved the parties' marriage in accordance with the applicable laws of Ghana.
On March 23, 1999, the husband "customarily remarried" in Ghana. Said marriage was "customarily dissolved" on August 21, 2001. A dissolution order was granted on January 14, 2002. On December 28, 2003, the husband "customarily married" his third wife in Ghana. Said marriage was "customarily dissolved" on November 17, 2006. A dissolution order was granted on January 17, 2007.
In or about 2004, the husband's "second wife" commenced a divorce action in Suffolk County, New York. Said action was dismissed on consent after the Court upheld the validity of the divorce granted in Ghana.
The husband alleges that the wife herein had knowledge of his aforesaid second and third marriages and divorces. His tax return for the year 1998 indicates that he was not married. His tax returns for 1999 and 2000 indicate he was married to his second wife, D. A. His 2002, 2003 and 2004 tax returns indicate that he was single. His 2005 tax return indicates that he was married to his third wife, J. Z. His 2006 and 2007 returns indicate that he was single. The husband further states that the wife was not covered under his health insurance after 1998, and he has not listed her as his wife on an employment or other official document since that year. He points out that although he transferred title to the premises located in Uniondale in June 2007, to himself and the wife to obtain a mortgage, the deed does not convey a tenancy in the entirety to them as husband and wife.
In opposing the husband's motion to dismiss, the wife alleges the following: she and the parties' two sons came from Ghana to New York to join the husband in 1995; she was never aware that their marriage had been dissolved by court order; neither she nor the husband were residents of Ghana at the time the divorce order was granted.
The wife's attorney asserts that the Ghana divorce order is not entitled to full faith and credit on the ground that the wife was not served with any process and did not have notice of the commencement of an action for divorce. Counsel also points out that neither party has resided in Ghana for the past twenty years (the Court notes the wife's affidavit states she came to the United States in 1995, thirteen years ago). The wife's affidavit concedes that she and the husband have had an "off and on relationship." She advises the Court that the husband excluded her from the residence in Uniondale after she served him with the summons and complaint in this action.
The husband's attorney contends that New York must accord full faith and credit to the divorce order in issue on the ground that same was obtained in full compliance with the laws of Ghana.
The law is well settled that the validity of a marriage is determined by application of the laws of the country where the marriage was undertaken ( see e.g., RM v Dr. R, 14 Misc 2d 1222(A); see also, Amsellem v Amsellem, 189 Misc 2d 27 [upholding religious ceremony conducted in France]; Matter of Estate of Huyot, 169 Misc 2d 805 [holding claimant was a concubine and not a wife according to French law]; Singh v Singh, 67 Misc 2d 878 [invalidating an arranged marriage in India]; In re White, 129 Misc 835 [upholding customary Canadian marriage]; Xiong ex rel Edmondson v Xiong, 255 Wisc2d 693, 648 NW2d 900 [ upholding marriage in Laos]; Farah v Farah, 16 Va App 329, 429 SE2d 626 [invalidating Muslim marriage ceremony conducted in England]).
There is also precedent holding that the validity of a divorce granted in a foreign country must be tested by applying the laws of that country ( see, Matter of Estate of Dominguez, 2002 WL 31844696 [denying full faith and credit to a Dominican Republic divorce].
In the case at bar, neither party contests that the applicable laws of Ghana recognize their "customary marriage". The wife does not deny that the same laws recognize "customary divorce" and provide a procedure whereby certain relatives of spouses, divorced through customary practice, may jointly petition a court in Ghana for an order confirming the validity of the "customary divorce."
The wife does not dispute the accuracy or veracity of the documents that state that her father joined in an application with the husband's uncle on August 27, 1997 seeking confirmation of the validity of the "customary divorce" ritual performed on July 1, 1994. Rather, she contends that this Court should not accord comity to said confirming order on the ground that it was obtained without her consent, without notice to her, and without personal jurisdiction over her in contravention of the due process public policies of this State. The wife asserts that neither she nor the husband were residents of Ghana in 1997. She contends that absent residency, notice, and personal jurisdiction, this Court should not accord comity to the confirming order. (The Court notes that neither the wife nor her attorney specifically address the issue of according comity to the "customary divorce" ritual).
The husband states that the wife had knowledge of his second and third marriages, but he does not set forth affirmatively that the wife had prior notice of either the "customary divorce" or the motion seeking a confirming order. In fact, neither the husband nor his attorney address the issues of jurisdiction or prior notice. The husband's attorney states only that this Court should accord comity to the confirming order on the ground it is facially valid and was obtained in conformance with the laws of Ghana.
There are a plethora of cases setting forth the application of the principle of comity as it relates to divorce decrees granted by a foreign country.
"It is well settled that (a)lthough 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 courts to judgments of our sister States' ( Greshler v Greshler, 51 NY2d 368, 376). However, in order for a divorce decree of a foreign court to be accorded recognition in this State, the foreign court must have had in personam jurisdiction over both spouses ( see, Greshler v Greshler, supra, at 376)" ( Aranoff v Aranoff, 226 AD2d 657). A divorce granted by a foreign country will also be accorded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties and residency, rather than domicile, was established by a statutory "brief contact" through the appearance of one of the parties (Scheinkman, Practice Commentaries, 9A Part 1 West's McKinney's Forms MFL, 7:03 [2003]; see, Greshler v Greshler, supra; Rosenstiel v Rosenstiel, 16 NY2d 64, cert. den. 384 US 971; Rosenbaum v Rosenbaum, 309 NY 371; Caldwell v Caldwell, 298 NY 146; Matter of Estate of Lovick, 201 AD2d 736; Rabini v Rabini, 178 Ad2d 637; Matter of Brown, 132 Misc 2d 811).
A foreign divorce decree obtained on the ex parte petition of a spouse will not be recognized in New York, where the other spouse did not appear and was not served with process in the foreign action ( see, Matter of Gotlib v Ratsutsky, 83 NY2d 696; Farag v Farag , 4 AD3d 502 ; Alfaro v Alfaro, 5 AD2d 770, aff'd 7 NY2d 949; Steffens v Steffens, 238 AD2d 404; Tal v Tal, 158 Misc 2d 703).
Under certain circumstances, a court of this State, in its discretion, may accord comity to a divorce decree granted by a foreign country for the limited purpose of recognizing the termination of the parties' marriage, however said court may exercise jurisdiction to determine financial issues ancillary to said foreign divorce pursuant to the laws of this State (DRL 236B; see, e.g., Nikrooz v Nikrooz, 167 AD2d 334; Braunstein v Braunstein, 114 AD2d 46). Where one spouse is a resident of a foreign country and the nonresident spouse is afforded sufficient notice of a divorce proceeding, but the foreign country does not acquire personal jurisdiction over the nonresident spouse, any divorce obtained in the foreign country is in rem only, and same will terminate the parties' marital status, but will not affect the nonresident spouse's marital economic rights ( see, e.g., Vanderbuilt v Vanderbuilt, 1 NY2d 342, aff'd 354 US 416; Williams v North Carolina, 325 US 226; Somma v Somma , 19 AD3d 477 ; Braithwaite v Braithwaite, 299 AD2d 383; Mattwell v Matwell, 194 AD2d 715).
Neither party has provided the Court with the applicable laws of Ghana, leaving this Court unable to ascertain whether said laws require that spouses personally participate in or be afforded notice, or must consent, before the heads of their families perform a "customary divorce" ritual and/or file a motion for an order confirming the "customary divorce." Further, this Court has no information as to whether Ghana law requires that one or both spouses reside in Ghana at the time of the "customary divorce" or at the time the confirming order is granted. Regardless of whether or not the laws of Ghana require jurisdiction over the spouses and/or prior notice, the wife herein may oppose the granting of comity to the "customary divorce" and/or confirming order, on the ground that same were obtained without jurisdiction or service of process or prior notice.
The parties have set forth their respective contentions relating to comity only with regard to the confirming order dated August 28, 1997. Neither party has addressed this Court's authority to accord comity to the "customary divorce." Nevertheless, this Court will determine whether it will accord comity to the "customary divorce."
All of the case law cited herein above relates to foreign divorces decrees or judgments granted by a judicial authority. In the case at bar, neither party commenced a divorce action in Ghana and neither party was granted a decree or judgment of divorce by a court of that country. Instead, by ex parte motion, the wife's father and husband's uncle purportedly procured an order dated August 28, 1997 confirming that the parties' marriage had been "customarily dissolved" on July 1, 1994 and that both parties had become free to remarry on that date. The order of the Circuit Court of Ghana dated August 28, 1997 did not divorce the parties; said order merely confirmed that the parties were divorced "customarily" on July 1, 1994. As said order states on its face that it was obtained ex parte and as the husband herein has not demonstrated, or even alleged, that the wife was served with any process or had any prior notice of the motion seeking a confirming order, this Court declines to afford comity to the order at issue herein dated August 28, 1997.
This Court must next determine if it will accord comity to the "customary divorce" allegedly carried out on July 1, 1994.
This Court has located only one line of cases dealing with "customary divorces." In In re Spondre, 98 Misc 524, the Surrogate, in upholding the common law marriage of a widow and a decedent on the high seas while immigrating to the United States, acknowledged the validity of a "customary divorce" granted to the widow from her prior husband in Russia /Roumania by a rabbi under the principle locus regit actum ( see also, Kantor v Cohn, 181 AD 400; In Re Rubenstein's Estate, 143 Misc 917; Sorenson v Sorenson, 122 Misc 196 [all upholding customary divorces granted by rabbis in Russia/Roumania/Poland, citing In re Spondre, supra]). It is important to note that the Spondre line of cases upheld rabbinical divorces granted in foreign countries when one, if not both, of the former spouses were residents of the foreign country and said divorces were granted prior to the time the former spouse litigating before the New York court immigrated to the United States.
A foreign "customary marriage" can be analogized to a common law marriage recognized by courts of this State if valid in the state in which the common law marriage was contracted ( see, Matter of Mott v Duncan Petroleum Trans., 51 NY2d 289; In re Steiner, 12 AD3d 682). However, our system of jurisprudence does not recognize common law divorce. Accordingly, spouses married in this country under common law, remain married until one spouse obtains a statutory divorce granted by a civil court ( In Re Benjamin, 34 NY2d 277). This Court must determine, as a matter of first impression, whether it will accord comity to a "customary divorce" performed in a foreign country to terminate a "customary marriage."
This Court holds that, despite the fact that our system of jurisprudence does not afford our residents the right to accomplish a common law divorce within the borders of the United States, it will accord comity to a "customary divorce" obtained in a foreign country terminating a "customary marriage" if at least one spouse was a resident of the foreign country or had other sufficient jurisdictional contacts with said country at the time the "customary divorce" ritual was performed; the "customary divorce" would be civilly recognized in a court of law in said country; and the spouse who did not procure the divorce had some prior notice that the ritual divorce would be carried out. Further, such divorce will be recognized only as granting an in rem divorce unless an additional requirement is met, to wit: that the party contesting the validity of the "customary divorce" was a resident of the foreign country at the time the "customary divorce" ritual was performed or had some other jurisdictional contact with said nation sufficient to confer the equivalent of in personam jurisdiction.
In addition, where the "customary divorce" did not address the parties' respective marital financial rights and obligations, under the rule of law set forth in Nikrooz v Nikrooz, supra and Braustein v Braustein, supra, even if the divorce was accomplished with the equivalent of personal jurisdiction over both parties, the Court will accord comity only to the termination of the marriage and will permit either party to seek the adjudication of ancillary financial issues in this forum.
If the wife herein procured the "customary divorce," or participated in same, or if said divorce was performed on notice to her while she was residing in Ghana, in a manner such that the termination of the parties' marriage would be recognized in a court in Ghana, the husband's cross motion will be granted, and the wife's action seeking a divorce will be dismissed. However, if this Court accords comity to the "customary divorce" to the extent of recognizing that same terminated the parties' marriage, but finds that said divorce did not address the parties' respective marital financial rights and obligations, the wife will be granted leave to serve an amended complaint seeking financial relief ancillary to a foreign divorce.
Similarly, if the husband procured said divorce while he was a resident of Ghana, on notice to the wife, but the wife was not a resident of Ghana at the time and had no other contact with that country sufficient to confer personal jurisdiction over her, the Court will recognize the in rem validity of the July 1, 1994 "customary divorce," but the wife will be permitted to serve an amended complaint seeking financial relief ancillary to a foreign divorce.
If the customary divorce was obtained absent the above stated criteria, the Court will not accord comity to the "customary divorce" and will proceed to adjudicate the wife's causes of action for divorce herein.
In the case at bar, there are contested issues of fact as to whether either or both parties resided in Ghana or had other jurisdictional contacts with that country on July 1, 1994. There are also contested issues as to whether or not the wife had knowledge of, consented to, participated in or procured the "customary divorce"; whether a "customary divorce" was performed under such circumstances that it would be recognized in a court of law in Ghana; and whether the "customary divorce" addressed the parties' respective marital financial rights and obligations. Said issues cannot be determined without a hearing.
The Court notes that as the parties are both titled owners of the premises in Uniondale, a partition action may be appropriate and the wife is granted leave to serve an amended complaint within thirty days of the date of this order.
Based upon all of the foregoing, the motions are decided as follows:
The husband's cross motion is set down for a conference on July 31, 2008 at 9:30a.m. to schedule discovery and fix a hearing date. The wife's application for pendente lite relief is denied with leave to renew subsequent to the hearing in the event the Court either denies comity to the "customary divorce" or determines that while the "customary divorce" terminated the parties' marriage, it did not affect the wife's marital economic rights.
This constitutes the decision and order of the Court. The parties shall appear at the conference on July 31, 2008 at 9:30a.m.