A New York judge has determined that an Islamic marriage contract entered into during a 1977 wedding ceremony in Egypt is not binding on the court’s consideration of the couple’s divorce now.
While Westchester County Supreme Court Justice Lawrence Ecker said New York courts have recognized that the marriage contract, called a “mahr,” can be enforceable, Ecker wrote in O.Y. v. A.G. that the document must be accompanied by proof of authentication in order to be valid under New York Real Property Law §301 and Domestic Relations Law §236.
Ecker said the mahr in question has not been subscribed nor acknowledged by the wife. Since the husband did not otherwise present authentication by a method approved by the Hague Convention of 1961, Ecker said he would not recognize the marriage contract as valid.
In any event, Ecker said, since the mahr in question is worth a total of $131 for the wife in event of the husband’s death or the dissolution of their marriage, it is in the best interests of all the parties to eliminate it as a consideration at this point in the couple’s current divorce proceedings in New York.
“Given the de minimis benefit to have been conferred upon plaintiff (the wife), there is no reason for the parties’ resources, or the court’s time, to be further expended in attempting to prove the validity of the mahr in question by expert testimony or otherwise, as suggested by the defendant,” Ecker wrote from White Plains. “Accordingly, the court finds that the mahr now under consideration is not enforceable in New York.”
Ecker granted the wife’s motion and dismissed the husband’s affirmative defense in relation to the mahr pursuant to CPLR 3211(b). He also ruled that the wife is estopped from seeking recovery of the $131.
The husband, “A.G.,” had argued that the mahr should govern the settlement the couple is now trying to reach before Ecker in a divorce action filed by the wife, “O.Y.”, on Aug. 11, 2014.
The husband cited to Avitzur v. Avitzur, 58 NY2d 108 (1983) for that contention. In Avitzur, the Court of Appeals upheld the enforceability of the secular terms of a “Ketubah” agreement between a man and wife entered into as part of a Jewish religious marriage ceremony.
Like the Ketubah, the mahr spells out a groom’s responsibilities toward the wife. In the O.Y. v. A.G. marriage, the husband signed the mahr, and the wife acquiesced through the signature of her uncle, according to Muslim tradition. She did not sign the mahr herself during the Islamic wedding ceremony on July 28, 1977, in Zagazig, Egypt, according to Ecker’s ruling.
Ecker also rejected the husband’s argument that a postnuptial agreement the couple signed in 2013 relieves the husband of further financial responsibilities the wife is seeking in her 2014 divorce filing. Ecker said the 2013 agreement should be looked at, not as an opt-out agreement binding the parties in a future divorce proceeding, but as signed in settlement for the wife’s agreement to discontinue without prejudice a 2012 divorce filing she made.
Ecker said the divorce action under the wife’s 2014 filing will proceed with the customary consideration of the principles of maintenance, equitable distribution, attorney fees and the other factors that are at play in the dissolution of a marriage in New York. The judge said he accepted the husband’s argument that any considerations that flowed to the wife under the 2013 postnuptial agreement should be weighed by the judge in working out the equitable distribution of the couple’s assets.
The judge ordered the parties to return to his court on Sept. 24.
Ecker said he did not have enough information to pass judgment on the distribution of marital property in the husband’s name in Egypt. The judge noted that the husband questioned whether an Egyptian court would honor the distribution of Egyptian property as ordered by a New York court in a divorce decree.
Ecker said he wanted time to get more information from the parties on the precise Egyptian property holdings and to consider “alternative dispositions” of the couple’s assets “to do justice to each of the parties.”
Howard Pobiner of White Plains represented the husband.
Pobiner said Ecker was “well within” his authority when finding that neither the mahr nor the 2013 postnuptial agreement were “opt outs” of the divorce decree that Ecker is trying to formulate.
Pobiner said “prevailing case law” around the country has been coming to the consensus that a mahr with the type of money called for in the case of O.Y. and A.G. represents an “unconscionably low” settlement by the standards of American customs and equitable distribution laws.
The wife’s attorney, Neveen Nesheiwat of Yonkers, praised Ecker for making a nuanced analysis of the mahr and determining that the one for O.Y.-A.G. is not valid for purposes of the couple’s divorce in 2015.
“Many lawyers are using it [the mahr] to curtail equitable rights and equitable distributions of assets,” Nesheiwat said in an interview Friday. “They are putting mostly women at risk.”
Nesheiwat said Ecker’s ruling will create case law in New York on the side of women who are unfairly disadvantaged by applications of Islamic Law outside of the Middle East.
She said it was also significant that Ecker announced his intention to try to draw any property holdings that the couple may have in Egypt into the New York divorce settlement because U.S. courts have tended “not to address those assets in light of the fact that those foreign nations do not give full faith and credit to American court directives.”
“Women tend to lose interests in those properties abroad,” she said.
Nesheiwat characterized the couple’s assets as being in excess of $1 million. She said the couple had children, but they are all emancipated.
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