The Lawletter Vol 38 No 11
With increasing frequency, American courts are being asked to recognize divorces that are obtained by one of the parties in a foreign country and entered according to rules that differ from the rules governing divorce in this country. In Siddiqui v. Siddiqui, 968 N.Y.S.2d 145 (App. Div. 2013), the New York Appellate Division was asked to consider such a case, which had been further complicated by the fact that the wife had waited two years before challenging in a New York court the foreign divorce that the husband had obtained.
The parties in Siddiqui got married in Pakistan in 1994 and subsequently moved to the United States. In 2005, the husband began divorce proceedings in New York. While those proceedings were pending, the husband obtained a divorce by performing talaq in Pakistan.
Under Pakistan's Muslim Family Laws Ordinance, a man may obtain a divorce by performing talaq, which consists of stating or writing three times that the man is divorcing his wife, and following various other procedures. In particular, written notice of the pronouncement of talaq must be given to a certain Pakistani governmental official, and a copy of such notice must be provided to the wife. The divorce will be given effect by the Pakistani government upon the expiration of 90 days from the day on which such notice was delivered to the governmental official. A woman does not have a right to talaq without her husband's permission.
Id. at 146.
In June 2008, after he had obtained the divorce in Pakistan, the husband withdrew the divorce pleadings in New York. In July 2009, the husband remarried. In August 2010, more than two years after the parties were divorced under Pakistani law, the wife filed a New York action seeking a judgment declaring the foreign divorce void and unenforceable and the husband's subsequent remarriage void, bigamous, and illegal.
Each party then asked the court for summary judgment. The trial court denied the wife's motion and granted the husband's motion dismissing the complaint. The appellate division affirmed but limited its holding "to the particular facts and circumstances of this case." Id. In affirming, the appellate court noted that the husband had submitted evidence to establish that the wife had been notified of the foreign divorce "several weeks before it was given effect by the Pakistani government" but that she did not challenge the validity of the divorce until more than two years later, by which time the husband had remarried. Id. at 146-47. The court also noted that the foreign divorce obtained by the husband "simply terminated the parties' marriage, while the parties have filed petitions in the Family Court to determine issues of child custody, maintenance, and child support." Id. at 147. The court concluded that under the particular circumstances presented, the wife was not entitled to declaratory relief.The court concluded the opinion by stating: "We express no opinion on the issue of whether the foreign divorce is fundamentally offensive to the public policy of this State." Id.