An interesting case, S.B. v. W.A. (N.Y. trial court Sept. 26, 2012). A quick and oversimplified summary:
1. In 1998, S.B., an American professional woman, married W.A., an Egyptian immigrant who eventually became an architect. They lived until 2006 in America, where their two children were born. They then moved to the United Arab Emirates, where W.A. had gotten a new job.
2. In 2009, S.B. accused W.A. of attacking her, inflicting “severe bruises and a fractured skull.” As a result, W.A. was convicted of assault in the UAE, on the grounds that he had (according to the UAE court) crossed his legal limits to discipline his wife. “The defendant 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 assault formed the grounds for S.B. to divorce W.A., also in the UAE; the UAE divorce court granted S.B. the divorce, awarded her the $250,000 mahr (essentially an amount provided for in the parties’ Islamic premarital agreement in the event of a divorce), ordered W.A. to pay child support and some amount of spousal support, and gave S.B. custody of the children.
3. Both parties then returned to the U.S., and S.B. moved in New York courts for recognition and enforcement of the UAE decree.
4. The short version of what the court generally ruled (setting aside some procedural complexities):
a. The court recognized the UAE divorce.
This seems right to me, given that the UAE was a natural place for the parties to divorce, especially since neither party was planning to move away immediately. (The wife had a banking job in the UAE, and wanted to abide by the terms of her three-year employment contract). Both parties had the opportunity to participate in the litigation (this wasn’t just a case where the husband and wife are living in the U.S., and the husband goes back to Pakistan to get a divorce without the wife’s participation).
Moreover, though one can imagine divorce orders that were unfair to the losing party, for instance because the divorce rules were discriminatory based on sex and religion, there is little reason to think that the party opposing U.S. recognition of the divorce — the husband — was unfairly treated in this way when it comes to the divorce itself. This is a good example of why American courts’ general willingness to recognize (usually) foreign divorce decrees makes sense.
b. The court viewed the decree ordering the payment of the $250,000 mahr enforceable (though there were procedural obstacles, which I won’t go into, with immediate enforcement). “[A]greements predicated upon religious doctrine and customs be enforced in civil courts, as long as enforcement does not violate either the law or the public policy of the state. While ‘the First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,’ a State may adopt ... [a] ‘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.’” “No strong public policy would be violated by the recognition, entry, or enforcement of the foreign judgment upholding the Mahr agreement.”
This too makes sense to me here. Whatever problems there might be with American courts’ enforcing mahrs that are too vague, and that require interpretation of religious law to fill in the blanks seems absent here. American courts need merely enforce the foreign decree, something they can do without interpreting religious law. And even if UAE courts entered the decree based on their interpretation of the mahr using religious law, I don’t think that’s a problem (at least so long as the substantive terms of the decree aren’t contrary to public policy).
c. The court adhered to the UAE order awarding custody to S.B.
This, I think, might potentially be problematic in some cases. According to the court, “The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff.” This suggests that UAE law is sex-discriminatory. That’s not shocking, I think, given that this was the formal rule in the U.S. up until about the 1970s, and apparently still remains the law (though as a presumption rather than as a firm rule) in Mississippi.
But I suspect that it is indeed contrary to modern American equal protection doctrine, and in particular to the public policy of New York. (The court suggests the father didn’t raise this challenge — “[n]either party alleges that any of the child custody laws of the UAE violate fundamental principles of human rights.” But in the very next sentence the court says, “[n]or does this Court find any such violation,” which suggests the court thinks there’s no federal or New York “human rights” difficulty with such a sex-based rule, a conclusion that I think is mistaken.)
Nonetheless, given the facts of the case — both the facts surrounding the father’s attack on the mother, and the judge’s retelling of the father’s later apparent shenanigans — it seems likely the mother would have prevailed on the custody issue even if the court had decided the custody question anew, by applying a sex-neutral best-interests standard.
In any case, this struck me as an interesting case, and I thought I’d pass it along; I’d love to hear what others, especially those familiar with New York family law, have to say about this.