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    FAMILY LAW: Husband's Attempt to Avoid a Maryland Divorce by Claiming That His Marriage Was Invalid Is Rejected by Maryland's Highest Court

    Posted by Gale Burns on Fri, May 16, 2014 @ 12:05 PM

    The Lawletter Vol 39 No 3

    Sandra Thomas, Senior Attorney, National Legal Research Group

         Maryland's highest court has rejected an attempt by a husband to avoid a divorce in Maryland by claiming that he did not participate in the marriage that the wife testified had occurred in 1993 in Zaire, now known as the Democratic Republic of the Congo. Tshiani v. Tshiani, 81 A.3d 414 (Md. 2013).

         According to the wife's testimony, the husband participated in the marriage ceremony by telephone and was represented at the event by his cousin and by other members of his family who provided the dowry required by the tribal tradition and who joined in the eight-hour celebration following the marriage. The husband was reported to have been asked: "'Do you know this girl? Do you like this girl? Do you want us to give the dowery [sic] and the gift to this family so that you, this person can be your husband or wife?'" Id. at 417. Several days after the ceremony, the wife traveled to Virginia, where she lived in an apartment with the husband for a period of time before they moved to Maryland, where they remained until their separation, almost 15 years later. The parties had three sons during the marriage. The husband was employed at the World Bank.

         At the hearing on the wife's complaint for divorce, first filed in 2009, the husband contested the divorce, arguing that he and the wife were never legally married. The trial court rejected the husband's claim, and in the divorce judgment issued in 2011 the trial court ordered the husband to pay the wife "a $543,000.00 monetary award, $23,493.75 in attorneys' fees, indefinite alimony, child support for the parties' three children, and 50% of the marital portion of the pension and separation grant he may receive eventually from his employer." Id.

         In appeals to the intermediate appellate court and the Maryland Court of Appeals, the husband argued variously that the wife had failed to provide adequate evidence of Congolese law with regard to marriage, that she had failed to adequately document the facts of their marriage, and that such a marriage was against the public policy of Maryland. In rejecting these claims, the court of appeals documented the evidence presented by the wife, including the husband's letters to his employer seeking benefits for his "wife" or "spouse"; similar references in an immigration application for the wife's legal residency papers; and testimony confirming real property in Maryland titled in the names of the parties as "tenants by the entireties," which in Maryland is reserved for married couples.

         Electing not to address the question of whether a telephone marriage would be valid if conducted in Maryland, the court concluded that a marriage by telephone conducted in the Congo was not "'repugnant' to Maryland's 'public policy'" and thus was sufficient to be entitled to comity in the courts of Maryland. Id. at 426.

         The court distinguished its decision in Aleem v. Aleem, 947 A.2d 489 (Md. 2008), in which it had refused to recognize a divorce acquired by the husband, who had gone to the Embassy of Pakistan in Washington, D.C., and obtained a unilateral divorce after the wife had filed for divorce in Maryland. In Aleem, the court of appeals had concluded that the foreign divorce "was in conflict with Maryland statutes and deprived the wife of her constitutional rights." Tshiani, 81 A.3d at 426. There appeared to be no comparable objection to the foreign procedures in Tshiani. The court of appeals therefore affirmed the lower-court decisions.

    Topics: legal research, family law, Sandra Thomas, Tshiani v. Tshiani, Md. Suprem Court, foreign marriage recognized, divorce valid, The Lawletter Vol 39 No 3

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