This was originally posted on the SGR Blog.
Was Agreement Enforceable in New York If Not Executed Accordance with DRL?
A prenuptial agreement is often at the center of New York divorce litigation. But, as a recent case illustrates, the enforcement of a “prenup” becomes a complicated matter for adjudication by the Court where the agreement, in a foreign language, is duly signed abroad—but the execution does not comport with New York law.
Ali Oleiwi and Noor Salah Shiahi were married in Iraq and signed a mahr, a marriage deed, which mandated certain payments from the husband to his wife at the time of marriage and after that, if a divorce occurred. The mahr was executed, based on the evidence before the Court, under the marriage laws of Iraq. But after the husband commenced a divorce action in New York, the parties filed competing declaratory judgment actions. The wife sought to enforce the mahr. And the husband argued that it was not acknowledged in accordance with New York law and was unenforceable.
The mahr is a marriage agreement under Islamic law in which the husband pledges to pay the wife a “deferred dowry” in the event of a divorce. New York courts have varied in their treatment of mahrs. And the decision in another case (Khan v. Hasan) suggested that if the mahr were executed in New York but not properly acknowledged, it would be unenforceable in a matrimonial action. In contrast, in this case, the mahr was executed in Iraq– and, in the Court’s view, raised the issue, not addressed in Khan v. Hasan, that, by its terms, applied only to mahrs executed in New York.
The mahr before the Court was drafted in Arabic and was issued and registered on December 6, 2016. The wife contended that the mahr was authentic, and she produced a copy for the Court. The document — described in the translation as a “marriage deed” — referenced a Judge of the Personal Status Court in Al-Zahoor, Dheyaa Faisal Mohammed, who declared that the husband and wife in this matter were identified and had “declared their mutual consent and approval” and the 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.
The mahr contained a signature by the Judge. In addition, there was a section described as the “Civil Status Card,” which included recording numbers, ethnic identification of the wife as from Karkh (a suburb of Baghdad), the husband as Bathaa (a community between Basra and Baghdad, listed the dates of birth of the couple and their prior marital status. The wife also offered a copy of an authentication document, which contained 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 of the mahr before the Court, it was difficult to determine what other marks were affixed to the marriage deed. However, the wife contended that the marriage deed included ink marks by both spouses made with their respective index fingers. Based on those facts, the wife sought to enforce the mahr. The husband did not contest the authenticity of the mahr. And he did not dispute that he was present when it was issued; he affixed his fingerprint to the document; he paid the first installment required by the mahr at the time of marriage, and the document before the Court was an accurate translation of the Arabic terms of the mahr into English.
The husband’s defense was simple: the “marriage deed” was not acknowledged according to DRL 263(b)(3) and was enforceable. 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.”
It was undisputed that the mahr before the Court was not acknowledged in accordance with the DRL. 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 did not, on its face, satisfy the statutory requirements.
New York courts had generally struggled in determining whether to enforce a mahr under any circumstances—but had not specifically addressed the validity and enforceability of unacknowledged mahr agreements when all the proceedings had 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 and history of DRL 236(B)(3) created no exception to the acknowledgment requirement. And the decision 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.”
Here, the mahr was executed in Iraq, and there was no dispute that the document was 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–and New York’s strong public policy further favored individuals ordering and deciding their interests through contractual agreements.
The generally accepted rule is that all matters bearing upon the execution, the interpretation, and the validity of contracts are determined by the law of the place where the contract was made. And, 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 was permissible by a New York courts if required because of some compelling public policy. And 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.
In this case, the Court found that the mahr met the criteria for comity application. The husband never suggested that the mahr was not enforceable in Iraq or that the 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.
However, while the Court would enforce the agreement, the consequence of that enforcement might impact equitable distribution under New York law. The Court viewed the mahr as a contract that required payment by the husband with the benefit of that contractual payment to the wife. And the payment, as her asset, might be a factor in determining equitable distribution or offset against a potential claim for maintenance.
The Court declined to determine, at this time, whether the payment required by the mahr was a marital asset for the wife or a marital liability for the husband. If the mahr payment was a separate liability for the husband, it might also impact equitable distribution of other assets or liabilities. Those issues remained for final resolution, either through negotiation or trial. The wife’s motion for a judgment declaring the mahr enforceable against the husband was granted. The husband’s request for a declaratory judgment otherwise was denied.