In past discussions, especially about the Oklahoma foreign law ban and about similar proposals in other states, some people have questioned why American courts would want to look at foreign law. Yesterday’s Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012) offers an excellent example. The facts:
On August 1, 2000, wife [Tahira Naseer] married Nasir Mehmood Khan in Pakistan. On June 12, 2001, Khan told wife three times that he divorced her pursuant to Islamic law. In Pakistan, this is considered the religious component to a divorce. Then, the parties have to obtain a legal divorce. Once the husband pronounces the divorce, he gives notice to the local government, known as the Union Council, and the wife receives a copy. The Union Council gives notices to both parties to try to reconcile. After ninety days, if there is no reconciliation between the parties, the Union Council issues a certificate confirming the divorce. In this case, wife and Khan did not give notice to the Union Council to start the process to receive a legal divorce in Pakistan. Wife assumed she was divorced after Khan said that he divorced her three times.
On January 26, 2003, wife and husband [Hamid Moghal] married in Pakistan, and on July 4, 2004, had a subsequent marriage ceremony in Fairfax County, Virginia. Wife did not tell husband that she had been previously married. She indicated on their marriage certificate that this was her first marriage. Husband and wife separated on November 18, 2009.
On December 3, 2009, husband discovered a marriage certificate from wife’s first marriage. He took the document with him on his trip to Pakistan, where he learned that wife never obtained a legal divorce from Khan. The Pakistani authorities issued an arrest warrant for wife and charged her with bigamy. Wife filed a Suit for Declaration in Pakistan, and on July 19, 2011, the Pakistani court finalized the divorce between wife and Khan.
On February 22, 2011, husband filed a complaint for annulment, alleging that wife committed bigamy by marrying husband while she was still legally married to Khan. Wife filed an answer and counterclaim for divorce. On January 17, 2012, the trial court heard evidence and argument from the parties and granted the annulment.
In the process, the trial court heard from experts on Pakistani law, accepting the testimony of husband’s expert — a Pakistani lawyer — who “testified that in order to be divorced in Pakistan, a person had to obtain a legal divorce, not just a religious divorce” and rejecting the testimony of wife’s expert (not a Pakistain lawyer) who “testified that based on Islamic law, wife was divorced and that Islamic law controls.” The Virginia Court of Appeals deferred to the trial court’s judgment about the experts’ credibility, and concluded:
“A marriage entered into prior to the dissolution of an earlier marriage of one of the parties” is prohibited. [Va.] Code § 20–38.1(1). ["]When a marriage is alleged to be void or voidable for any of the causes mentioned in §§ 20–13, 20–38.1, 20–45.1 or by virtue of fraud or duress, either party may institute a suit for annulling the same; and upon proof of the nullity of the marriage, it shall be decreed void by a decree of annulment.["] Code § 20–89.1(a). The burden of proof in an annulment case based on bigamy is “clear and convincing.” Rahnema v. Rahnema, 47 Va.App. 645, 665, 626 S.E.2d 448, 458 (2006)....
The trial court found that the testimony of husband and his witnesses was more credible than the testimony of wife and her witnesses.... Husband carried his burden of clear and convincing evidence to prove that wife had not obtained a legal divorce from Khan before she married husband. Therefore, the marriage between husband and wife was bigamous. The trial court did not err in granting husband an annulment.
Note what happened here:
1. Under Virginia law, if A marries C while A is still married to B, the A-C marriage is void, and C can get it annulled.
2. Virginia courts naturally decide annulment questions using Virginia law.
3. But many Virginians came to Virginia from other places, including other countries. Virginia law therefore provides that, for purposes of Virginia law, whether an out-of-state marriage or divorce is valid is determined by the law of the place where the marriage or divorce took place (at least when that place was also the place of residence of the parties). To my knowledge, all American states apply a similar “choice of law” rule to marriage and divorce questions.
And that’s because such a rule is sensible: If you need to find out whether someone who had lived in Pakistan (or Germany or Canada) was properly married or divorced in Pakistan (or Germany or Canada), you naturally can’t expect them to have gone through the proper Virginia formalities at the time — perhaps when they weren’t even planning to move to Virginia. The best you can do is figure out whether they were properly married or divorced under the law of the place where the marriage or divorce happened.
To be sure, some out-of-state marriages and divorces might be contrary to Virginia public policy, and won’t be recognized in Virginia even if they are recognized elsewhere. Polygamous marriages probably qualify. But that’s the exception, not the rule.
4. So to determine, under Virginia law, whether the Naseer-Moghal marriage was valid, the Virginia judges had to decide whether Naseer was still married at the time, which required them to determine whether Naseer had divorced Khan (whom she had undoubtedly married) under the law of Pakistan. That’s not because Pakistani law is somehow being forced on Virginia. Rather, it’s because Virginia chooses to apply such law, in an attempt to better manage the lives of its residents, who come from all over the world.
5. Naturally, Virginia judges might not know much about Pakistani law, which is why the parties call experts on the subject, and the trial judge decides whom to believe. (In some situations, the judge could also consult treatises on the matter.) This is an imperfect process, but it’s generally reliable enough.
6. In this instance, the judge concluded that Pakistani law imposed requirements beyond those required by religious law. But Virginia law calls for application of the foreign law in such a situation, whether the foreign law is based partly on religious law, entirely on religious law, or not at all on religious law. If it turns out in a later case that under the law of some other country, a religious ceremony (say, one conducted consistently with Sharia law as understood within that country) suffices to produce a legally recognized divorce — or, in a different case, a religious ceremony suffices to produce a legally recognized marriage — then Virginia judges would follow that law, and call experts to determine just what religious ceremonies suffice and what effect they have.
And this wouldn’t be because Virginia was being governed by Sharia, or because American Muslims are entitled to have their legal rights adjudicated under Sharia. Rather, it’s because Virginia law calls for the application of the law of the jurisdiction where the marriage or divorce took place, whatever the law might be — again, except in rare situations where the law is contrary to Virginia public policy.
Perfectly normal behavior for American courts, and in my view perfectly sound behavior. American courts should apply American law, but sometimes American law calls for the application of foreign law, and then American courts should apply that. Yet under the Oklahoma constitutional amendment, Oklahoma courts would have been barred from considering Pakistani law in this situation, had the amendment not been enjoined on Establishment Clause grounds. Likewise, under the proposed Arizona statute that I cited at the beginning of this post, Arizona courts would have been barred from doing the same.