The New Divorce Court: Where U.S. Laws Meet Foreign Ones?

Family law in the U.S. has never been so interesting.

Notwithstanding changes in the definition of marriage, divorces are currently the subject of debate among state legislatures.

Divorce, and the related legal dissolutions of marriage, provides an excellent example for why Oklahoma and Arizona’s bills to bar the use of foreign (and religious) law—and the several state bills following suit—merit consideration.

Of course, some would argue that these proposals “displace the many subconstitutional rules through which American courts have long tried to accommodate the reality that much commercial and personal life is international.”

This week, an annulment case, Naseer v. Moghal (Va. Ct. App. Aug. 14, 2012), was brought to the public eye.

The facts of the case are complex, so here is a summary by Joe Palazzolo for the Wall Street Journal Law Blog, who also picked up on the case:

“The story begins with a couple, Tahira Naseer and Nasir Mehmood Khan, who married in Pakistan in 2000. The union didn’t last.

The next year, Mr. Khan told his wife three times that he divorced her, under Islamic law. The ‘three times’ rule is considered a religious component to divorce in Pakistan. But the parties still have to obtain a legal divorce. To begin the legal process, Mr. Khan had to give notice to the local government. But he never did.

Ms. Naseer married again in Pakistan in 2003. She and her new husband, Hamid Moghal, moved to Fairfax County, Va., and had a marriage ceremony there in 2004. That union also failed. The couple separated in 2009.

Ms. Naseer had never told Mr. Moghal about her previous marriage to Mr. Khan. But Mr. Moghal found Ms. Naseer’s marriage certificate and took it with him on a trip to Pakistan. When he checked the Pakistani records, Mr. Moghal discovered that Ms. Naseer had never legally divorced Mr. Khan.

Pakistani authorities issued an arrest warrant for her and charged her with bigamy. So she filed a suit in Pakistan to finalize the divorce between her and Mr. Khan. It was done in 2011.

Back in Virginia, Mr. Moghal sought an annulment, arguing that Ms. Naseer had committed bigamy, because she was still married to Mr. Khan when she married Mr. Moghal. Ms. Naseer filed a counterclaim for divorce, in which she argued that the ‘three times’ rule was enough to effect a legal divorce.”

In the end, the trial court sided with Mr. Moghal and the Virginia Court of Appeals affirmed the decision. So, Mr. Moghal was granted an annulment.

UCLA law professor Eugene Volokh—the original commenter on this issue—wrote in defense of the ruling:

“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,” Professor Volokh wrote.

“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.”

The Wall Street Journal Law Blog called a lawyer for Mr. Moghul, Thomas P. Silis, who restated that the case largely turned on the question of whether a religious divorce could satisfy the legal requirements for divorce in Pakistan.

Clearly, the Virginia court ruled that it could not. And, this decision was based on the expert testimony of a lawyer from Pakistan.

“The concept of marriage and divorce being both religious and legal was interesting,” Mr. Silis said to the WSJ Law Blog. “We’re very happy with the way the court ruled.”

Although a representative for Ms. Naseer could not be reached, it might be assumed that they believe the U.S. courts did not accurately interpret Pakistani law.

Professor Volokh and the WSJ Law Blog appear to be in agreement that it’s sometimes ‘sensible’ for U.S. courts to consider foreign law.

Yet, is this story enough to convince you?

The expert witness in the aforementioned case was a Pakistani lawyer, well versed on Pakistani law. However, he was not a member of the Pakistani court. Although the expert lawyer can argue what he believes to be law in Pakistan, it’s hard to say what a court in Pakistan would actually rule.

In parody, an American attorney in the U.S. can certain tout what he believes to be the law. Nevertheless, it takes going to court to receive a fair and enforceable ruling as confirmation of his opinion. Speaking of, how many times have lawyers disagreed with court opinions? How many times have clients been unhappily surprised by verdicts–especially via jury?

Can U.S. courts truly mimic foreign ones? And, should they try?

The discussion is still open. Surely law firms can use this subject as fodder for a Friday legal symposium (remember how roundtable debates drive a happier, more productive office?).

Between equity partners, this story also points to even more reasons why wide diversity of race, gender, background, and expertise is necessary for the success of your practice.

Law firms—now, not simply corporate or M&A specialties, but family law, too—should look abroad for new associates, litigation consultants, and clients.

As states and legal bodies become increasingly divergent on their opinion the application of foreign law (and foreign accreditation of lawyers), firms should stay up-to-date on pertinent legislation and adapt the composition of their personnel and business strategy accordingly.

-WB

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