Oleiwi v Shlahi

[*1] Oleiwi v Shlahi 2021 NY Slip Op 21301 Decided on November 5, 2021 Supreme Court, Monroe County Dollinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 5, 2021
Supreme Court, Monroe County

Ali Oleiwi, Plaintiff

against

Noor Salah Shlahi, Defendant



Index No. E2020007354



Leland T. Williams, Esq.

Attorney for the Plaintiff Ali Oleiwi

Rochester, New York

Matthew R. St. Martin, Esq.

Attorney for the Defendant Noor Salah Shlahi

Newark, New York 14513
Richard A. Dollinger, J.

A couple is married in Iraq and signs a mahr, which mandates certain payments from the husband to his wife at the time of marriage and thereafter, if a divorce occurs. The mahr is executed, based on the evidence before this Court, in accordance with the marriage laws of Iraq. Now, after the husband commences a divorce action in New York, the parties filed competing declaratory judgment actions: the wife seeks to enforce the mahr and the husband argues that it is not acknowledged in accordance with New York law and hence unenforceable.

The mahr is a marriage agreement in accordance with Islamic law wherein the husband pledges to pay the wife a "deferred dowry" in the event of a divorce. Badawi v. Alesawy. 56 Misc 3d 949, 960. n.1 (Sup. Ct. Westchester Cty 2017). The New York courts have varied in their treatment of mahrs and, a recent case suggests that if the mahr were executed in New York but not properly acknowledged, then it is unenforceable in a matrimonial action. Khan v. Hasan, 201 NY Misc Lexis 4673 (Sup.Ct. Nassau Cty 2021)(Goodstein, J.). In contrast, in this matter, the mahr was executed in Iraq and, in this Court's view, raises the issue that skirts the broad and persuasive ruling in Khan v. Hasan that, by its terms, applies only to mahrs executed in New York.

The mahr before this Court is drafted in Arabic. The wife contends that the mahr is authentic and she produced a copy for the Court. The document — described in the translation as a "marriage deed" — references a Judge of the Personal Status Court in Al-Zahoor,[FN1] Mr. Dheyaa Faisal Mohammed, who declared that the husband and wife in this matter were identified and having "declared their mutual consent and approval:"

. . . marriage between them was solemnized upon an advance dowery of 10 million and 500 Iraqi dinars and a late dowery of 20 million Iraqi dinars, to be paid by the husband in case of death and divorce, this marriage deed was issued and registered on 12/6/2016.

The mahr contains a signature by the officiant, Dheyaa F. Mohammed. In addition, there is a section described as the "Civil Status Card," which includes recording numbers, ethnic identification of the wife as from Karkh (a suburb of Baghdad), the husband as Bathaa (Batha is a community between Basra and Baghdad in Iraq), lists the dates of birth of the couple and their prior marital status. The wife also offers a copy of an authentication document, which contains a seal from the officiant, a further signature from Jasmin Mohammed Abood, a board president of the Federal Appeal Court in Baghdad and stamps from the Supreme Judiciary Council Presidency of the Federal Appeals Court in Baghdad and the Supreme Judiciary Council Presidency of the Federal Appeal Court in Baghdad.

In the copies before this Court, it is difficult to determine what other marks are affixed to the marriage deed. However, the wife contends that the marriage deed includes ink marks by both spouses made with their respective index fingers. Based on these facts, the wife seeks to enforce the mahr. Importantly, in the responsive papers, the husband does not contest the authenticity of the mahr. He does not dispute that he was present when it was issued, that he affixed his finger print to the document, that he paid the first installment required by the mahr at the time of marriage and that the document before the Court is an accurate translation of the Arabic terms of the mahr into English.

The husband's defense is simple: the "marriage deed" is not acknowledged according to DRL 263(b)(3) and hence, unenforceable. The statute provides:

An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.

Id. It is undisputed that the mahr before this Court was not acknowledged in accordance with that statute. A proper acknowledgment is an "essential prerequisite" to comply with the terms of DRL 236(B)(3) and the mahr in this case, while simply signed by a witness and marked by the husband and wife does not, on its face, satisfy the requirements of DRL 236(B)(3). See Matisoff v. Dobi, 90 NY2d 127 (1997); Galetta v. Galetta, 21 NY3d 186 (2013).

The New York courts have generally struggled in determining whether to enforce a mahr under any circumstances. In Farag v. Farag, 4 AD3d 502 (2d Dept 2004), the Court refused to let a mahr limit the terms of equitable distribution or marital support because the document did not contain an express waiver of the wife's rights under New York law and was not properly executed under New York's requirements. See also Ahmad v. Khalil, 40 Misc 3d 1206(a)(Sup. Ct. Westchester Cty 2013). The Second Department seemed to take a different tack in Badawi v. Alesawy, 135 AD3d 792 (2d Dept 2016), in which the court upheld a mahr which required the husband to pay $250,000 to his wife when they divorced, even though the agreement, signed by two witnesses and the iman of Islamic Cultural Center of New York, was not acknowledged in accordance with DRL 236(b)(3). Other New York trial courts have resorted to strict construction [*2]of mahrs, holding that if they meet customary contractual requirements, they can be enforced. In O.Y. v. A.G., 48 Misc 3d 1222(A)(Sup.Ct. Westchester Cty 2015), the Court noted that the mahr, while unusual under New York law, was enforceable under Islamic law, even though signed by the wife's uncle, as her proxy, because the wife had given clear acceptance of the mahr before witnesses. In an earlier decision, the trial court in Aziz v. Aziz, 127 Misc 2d 1013 (Sup.Ct. Queens Cty 1985) held that a mahr executed in accordance with New York civil law could be enforceable, relying on the Court of Appeals decision in Avitzur v. Avitzur, 58 NY2d 108 (1983). In the later case, the court, in a 4-3 decision, permitted enforcement of the secular terms of a Ketubah, a contract at the heart of the Jewish marriage ceremony.

Recently, in Khan v. Hasan, supra, the Nassau County Supreme Court held that:

New York courts have not specifically addressed the validity and enforceability of unacknowledged mahr agreements when all the proceedings have taken place in New York. But, even if the New York courts had adopted the "neutral principles of law" approach and applied it to the parties' mahr agreement, it still could not be upheld due to the lack of an acknowledgment. The language, history, and subsequent New York statutory law of DRL 236(B)(3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement.

Khan v. Hasan, 201 NY Misc Lexis 4673 at 13. The Court in Khan v. Hasan confined its determination solely to whether to enforce the mahr "when all of the proceedings have taken place in New York." Id.

Here, the mahr was executed in Iraq and there is no dispute that the document is authentic and would be enforced in Iraq. New York has long held that comity should be extended to uphold the validity of foreign nuptial matters unless recognition of the judgment would do violence to a strong public policy of New York. Matter of Gotlib v. Ratsutsky, 83 NY2d 696, 699-700 (1994)(recognizing a divorce in the Soviet Union). New York's strong public policy further favors individuals ordering and deciding their own interests through contractual agreements. Bloomfield v. Bloomfield, 97 NY2d 188, 193 (2011); Matter of Greiff, 92 NY2d 341 (1998); see also H.S. v M.S., 48 Misc 3d 1212(A) (Sup Ct Westchester Cty 2015). The generally accepted rule is that " '[a)ll matters bearing upon the execution, the interpretation and the validity of contracts ... are determined by the law of the place where the contract is made' " Auten v. Auten, 308 NY 155, 160 (1954); see also McKoan v. McKoan, 15 Misc 3d 1115[A) [Sup Ct Westchester Co 2007) ). Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts have generally recognized all the provisions of such decrees, including any agreement which may have been incorporated therein, regardless of whether the agreement was acknowledged in accordance with DRL §236(b)(3). The only modification of such a foreign agreement is permissible by a New York courts if required by reason of some compelling public policy. See Greschler v. Greschler, 51 NY2d 368, 376-377 (1980).Therefore, a duly executed prenuptial agreement executed in a foreign nation in accordance with that nation's laws will be found to be valid and enforceable in New York. Greschler v. Greschler, 51 NY2d 368 (1980). See H.S. v M.S., 48 Misc 3d 1212(A) (Sup Ct 2015) (the Agreement, in German, was subscribed by the parties before a notary public in Germany); Cohen v Cohen, 93 AD3d 506, 506-07 (1st Dept 2012)(acknowledgment requirement in Property Law § 301-a was [*3]satisfied by plaintiff's filing, at the direction of the court, of a certificate of conformity attesting to the credentials of the French official who drafted the agreement, and certifying that his proof of acknowledgment of the agreement conformed to the laws of France)[FN2] ; Badawi v Alesawy, 135 AD3d 792, 793 (2d Dept 2016)(the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York and the trial court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby); Crowther v Crowther, 27 Misc 3d 1211(A) (Sup Ct 2010)(plaintiff's status as a Dutch citizen, the parties' Dutch civil marriage ceremony at the Dutch embassy in Ghana, and the fact that the pre-nuptial agreement was drafted by a Dutch attorney in the Netherlands, and executed by the parties' agents in the Netherlands, provide sufficient nexus for the application of Dutch law and the application of Dutch law to the pre-nuptial agreement under the circumstances would not violate any strong public policy of the State of New York).

In this instance, the mahr meets the criteria for application of comity as enunciated above. The husband never suggests that the mahr is not enforceable in Iraq or that its execution in Iraq was coerced or otherwise less than a voluntary agreement. To give comity to the marriage in Iraq — and all of its features —the Court must enforce the mahr and require the husband to pay the required second installment of the dowry.[FN3] However, while this Court will enforce the agreement, the consequence of that enforcement may impact equitable distribution under New York. Because this Court views the mahr as a contract that requires payment by the husband, then the benefit of that contractual payment to the wife — it is her asset — may be a factor in determining equitable distribution or offset a potential claim for maintenance. This Court declines to determine, at this stage, whether the payment required by the mahr is a marital asset for the wife or a marital liability for the husband. If the mahr payment is a separate liability for the husband, then it may also impact equitable distribution of other assets or liabilities. These issues remain for final resolution, either through negotiation or trial. The wife's motion for a judgment declaring the mahr enforceable against the husband is granted. The husband's request for a declaratory judgment otherwise is denied.

SUBMIT ORDER ON NOTICE. 202 NYCRR 202.48

Dated November 5, 2021

________________________________

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1:Al-Zahoor is suburb of Baghdad, the capital of Iraq.

Footnote 2:In this instance, as noted earlier, the wife produced an official recording document, containing the signature of the officiant, a signature of a recording official and a stamp indicating the documents recording according to Iraqi law. The husband does not contest the authenticity of the certificate of conformity document.

Footnote 3:The husband also claims that his wife told him she wanted a divorce and hence, under Islamic law in Iraq, she forfeited the mahr payment. There is no substantiation of the husband's claims under Islamic law or culture and, even if so, the husband is the plaintiff in the divorce action — he commenced the divorce.