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Foreign Law in American Courts

California Court Rejects Lebanese Bigamous Marriage


From In re Marriage of Elali & Marchoud, decided yesterday by the California Court of Appeal (written by Justice Carol Codrington and joined by Presiding Justice Manuel Ramirez and Justice Douglas Miller):

While Mr. Samir Elali was married to Ms. Angeles Elali and resided with her in California, Samir married Ms. Mayssa Marchoud in Lebanon. {Samir[ testified] that he married Angeles in 1987, and had remained married to her for almost 35 years, including when he married Mayssa in Lebanon in 2012.} After Samir attempted to terminate the Lebanese marriage, Mayssa filed a petition in California for spousal support without dissolution against Samir. The trial court ruled the Lebanese marriage was bigamous and therefore void under Family Code section 2201, subdivision (a)…. We … conclude the trial court did not err in ruling the bigamous Lebanese marriage was void under section 2201(a)[:]

[A subsequent marriage contracted by a person during the life of his or her former spouse, with a person other than the former spouse, is illegal and void, unless:

(1) The former marriage has been dissolved or adjudged a nullity before the date of the subsequent marriage.

(2) The former spouse (A) is absent, and not known to the person to be living for the period of five successive years immediately preceding the subsequent marriage, or (B) is generally reputed or believed by the person to be dead at the time the subsequent marriage was contracted.] …

Under [Family Code] section 308, "[a] marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California." … Mayssa argues that although Samir had two simultaneous marriages, the second marriage in Lebanon was valid because Lebanese law permits bigamy….

McDonald v. McDonald (Cal. 1936) and Brandt v. Brandt (Cal. App. 1939) state that in California, a bigamous marriage is against public policy and therefore invalid…. Penal Code section 281 [also] demonstrates that in California a bigamous marriage is against public policy and therefore application of section 2201(a) to such a bigamous marriage is proper even if the bigamous foreign marriage is valid under the law of the situs of the marriage. Penal Code section 281 states that "Every person having a spouse living, who marries … is guilty of bigamy." Penal Code section 281 further states in relevant part that, "[u]pon a trial for bigamy, … when the second marriage … took place out of this state, proof of that fact, accompanied with proof of cohabitation thereafter in this state, is sufficient to sustain the charge."

And the court concludes that Estate of Bir (Cal. App. 1948), which did consider an Indian polygamous marriage in deciding how property was to be distributed on death in the absence of will, was limited to such intestate succession controversy:

In Bir, the court recognized under principles of comity, the decedent's marriage entered in India, where the laws of India permitted bigamous marriages. Bir is inapposite because the court's recognition of the bigamous foreign marriage was solely in the context of a petition to determine intestate succession by the decedent's two wives, who were residents of India, not California.

The court in Wong v. Tenneco, Inc. (Cal. 1985) explained that the public policy exception to the comity doctrine "precludes application of a foreign state's law where to do so would violate California's public policy. [Citations.] The standard, however, is not simply that the law is contrary to our public policy, but that it is so offensive to our public policy as to be 'prejudicial to recognized standards of morality and to the general interests of the citizens ….' [Citations.]" Even when a foreign law offends public policy, "it may still be applied in a limited context where the potential harm is minimal," as the court found in Bir [in the context of intestate succession only, India's law permits polygamy to be applied under principles of comity].

The court in Bir stated that "Where only the question of descent of property is involved, 'public policy' is not affected…. True, there are cases holding invalid polygamous marriages entered into in places where such marriages are legal, but in each such case found, all the parties were living and no question of succession to property was considered…. 'Public policy' would not be affected by dividing the money equally between the two wives, particularly since there is no contest between them and they are the only interested parties."

In the instant case, unlike in Bir, the parties to the bigamous marriage are both living, there is a dispute over their marital rights to support and the division of property under the California Family Code. Section 2201(a), Penal Code section 281, and case law supports the determination that bigamous marriages in California are against public policy, illegal, and thus void. We therefore conclude the trial court properly ruled that the Lebanese bigamous marriage was void under section 2201(a)….