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Foreign Law in American Courts

Maryland Residents' Divorce Governed by Maryland Law—Not Lebanese Law, or Religious Law


From Melki v. Melki (Md. Ct. Spec. App.), decided Tuesday, in an opinion by Judge Kevin Arthur:

In 2009, Husband and Wife were married in Tripoli, Lebanon, at an Orthodox Christian church. Husband is an Orthodox Christian, and Wife is a Catholic. The couple had met a year earlier in Beirut, where Wife, a citizen of Lebanon, worked as an opera singer. Husband, a dual citizen of Lebanon and the United States, has resided in the United States for over 30 years, but often travels to Lebanon to vacation and visit family members….

On August 4, 2016, Wife moved herself and her children out of the couple's home in Montgomery County. On that same day, Wife filed for a limited divorce in the Circuit Court for Montgomery County….

Husband objected to the divorce, "arguing that only Lebanese courts have jurisdiction over the divorce and that the court's dissolution of the marriage would infringe on his free exercise of religion as an Orthodox Christian," and "that Maryland's no-fault divorce statute, as applied to him, violated his constitutional right to marry; that the divorce would infringe on his children's fundamental rights; and that the dissolution of his marriage would impair the obligations under his marriage contract, in violation of the Contracts Clause of the United States Constitution."

No dice, said the court to Husband:

[1.] When a spouse is domiciled in Maryland, Maryland law applies to the divorce. (Note that the initial validity of a marriage is often determined based on where the marriage took place, but not the rules for dissolving the marriage.) "For example, some states (such as Louisiana) permit couples to enter into 'covenant marriages,' in which they agree to forgo no-fault grounds for a divorce. Yet, if one or both of those spouses should become a domiciliary of a state that permits no-fault divorces, that state will apply its own substantive law and will permit a no-fault divorce. Blackburn v. Blackburn (Ala. Civ. App. 2015)."

[2.] The Contracts Clause, which bars states from impairing the obligation of contracts, doesn't apply to marriages. "Although marriage is a civil contract for some purposes (see Section C, below), the Supreme Court has said that 'marriage is not a contract within the meaning of the [Contracts Clause's] prohibition' and that the clause 'never has been understood to restrict the general right of the legislature to legislate on the subject of divorces.' Maynard v. Hill (1888)."

[3.] The no-fault divorce doesn't violate Husband's Free Exercise Clause rights. "Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse's religious beliefs prohibit no-fault divorces."

The [no-fault divorce] statute does not infringe Husband's religious rights merely because it allows Wife, who does not share his beliefs, to obtain a divorce. Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one, and may continue to exercise that freedom of religion according to [his] belief and conscience." In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband's religious beliefs, for the court would then be preferring one spouse's beliefs over the other spouse's.

[4.] The court doesn't seem to discuss Husband's argument that the no-fault divorce "violated his constitutional right to marry," but I expect that, if it did, it would have applied the "it takes two to tango" principle (though it only takes one to stop tangoing).