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Foreign Law in American Courts
Ohio Court Recognizes Telephonic Marriage Ceremony Under Bangladesh Sharia Law Between Two Bangladesh Citizens
From Momotaz v. Sattar, decided Thursday by the Ohio Court of Appeals, in an opinion by Judge Sean Gallagher, joined by Judges Anita Laster Mays and Eileen Gallagher:
On August 22, 2005, the parties participated in a telephonic marriage ceremony, which was conducted over a speaker phone. At the time of the marriage ceremony, husband resided in the United States, wife resided in Bangladesh, and both were citizens of Bangladesh. Husband traveled from Pennsylvania to New York and was with friends and relatives during the ceremony. Wife was in Bangladesh with friends and family members and husband's father. Also present in Bangladesh was Mawlana Kofiul Ahmed, who solemnized the marriage and identified himself as an assistant marriage registrar, and Abul Hashem Majumdar, a community leader who appeared to sign the marriage register on husband's behalf as his "pleader."
Pictures of the marriage ceremony were provided. {One photograph depicts Majumdar signing the marriage register during the marriage ceremony. Wife alleges that Majumdar was invited by husband's father to be the pleader. Although there are conflicting statements from witnesses, several witnesses stated that during the ceremony husband was asked for the appointment of Majumdar as his pleader and husband consented.} Witness statements indicated that the solemnization was according to Sharia law.
The legal marriage contract that was entered into between the parties is referred to as a "Nikah Nama." Husband stated in his deposition that there were no issues with the ceremony or the solemnization of the marriage before witnesses according to Muslim law, and he believed he was lawfully married according to Bangladesh law.
Following the marriage ceremony, wife continued to reside in Bangladesh until 2007, when husband traveled to Bangladesh. The marriage was consummated at that time. After a temporary stay in Canada, in August 2007, the couple arrived together in the United States, and they resided together in Pennsylvania. One child was born as issue of the marriage in February 2009. In October 2009, the family moved to Cleveland. Throughout their marriage, husband and wife presented themselves as a married couple. They lived together for 12 years, raised their child together, filed joint income tax returns, and wife received tuition benefits at Case Western Reserve University because husband was a faculty member.
But when the marriage broke down, the husband took the view that the marriage was invalid from the outset, arguing that various procedural rules required by Bangladesh law were not complied with. No, said the Ohio court:
On April 29, 2021, the trial court granted wife's motion and denied husband's motion. The trial court determined that "[t]he parties' marriage * * * is governed by Muslim Law also known as 'Sharia Law' or 'Mohammedan Law[,]' " that "the validity of the registration document is not an element to a valid Muslim marriage in Bangladesh and an invalid registration does not render the marriage invalid," and that the elements for a valid Muslim marriage were met. Upon the evidence presented, the trial court concluded as follows:
[T]he Court finds that there are no issues of material fact and the parties' marriage in Bangladesh was valid. [Wife] demonstrated that: (1) the parties' admitted telephone marriage on August 22, 2005 met the essentials of a valid Mohammedan and Bangladeshi marriage and [2] registration of the marriage is not an essential element in order to establish the validity of a marriage. Accordingly, [Wife] is entitled to judgment as a matter of law and the Court retains jurisdiction over the parties' divorce.
… The trial court determined that the parties' marriage was valid under Bangladesh law. More specifically, the court found that the parties agreed the marriage met the essentials of a valid Mohammedan and Bangladeshi marriage and that the alleged invalidity of the registration does not render the marriage invalid. Upon our review of the record, we agree….
Husband proceeds to argue that the trial court erred by applying the Muslim Sharia Law of Bangladesh because he was a resident of the United States and not a Bangladesh resident at the time of the 2005 telephonic marriage ceremony. In support of this argument, he cites to the Muslim Personal Law (Shariat) Application Act, 1937, which makes "provision for the application of the Muslim Personal Law (Shariat) to Muslims in Bangladesh" and states that "[i]t extends to the whole of Bangladesh." While husband refers to language referencing a "resident of Bangladesh" he cites no authority or logical reason to limit the Muslim Sharia Law to only residents of Bangladesh. Further, as argued by wife, subsequent legislative enactments to the 1937 Act, including the 1961 Family Laws and the 1974 Registration Act, are indicative of including "Muslim citizens of Bangladesh wherever they may be" and husband availed himself of these laws. Additionally, the expert legal opinions provided by wife support the conclusion that the marriage between the parties was valid.
Husband further claims that the trial court erred by recognizing a transnational telephonic marriage solemnization despite the lack of any authorizing provision of Bangladesh law or Muslim law. However, as stated in the legal opinion of Mahmud & Bhuiyan Barristers & Advocates, under Bangladesh law or Mohammedan law, "there is no legal bar against such telephone marriage" and they "are common in Bangladesh, and since they have all the essentials of a valid marriage contract, they are valid under the laws of Bangladesh." This is consistent with authority that "[m]arriage under the Mohammedan Law is a civil contract requiring no ceremony or special formality." Thus, as observed by Barrister Kahn, "[t]here are witness statements that this marriage was conducted according to Sharia law" and "the mere fact that the marriage was conducted through telephone will not invalidate this otherwise valid marriage."
Based on the facts and circumstances of this case, we find the trial court did not err in finding the marriage between husband and wife was valid….
Judge Gallagher, joined by Judge Laster Mays, added:
I concur with the decision issued by this court and write separately to express my incredulity with appellant's position that there was no legal marriage between himself and his ex-wife. I am flummoxed by his assertion.
As appellant suggests that there was no legal marriage, then I would suggest that there was fraud committed by him against the United States of America and his employer, Case Western Reserve University.
Appellant secured entry into this country, albeit through Canada for reasons which are unclear, for his spouse. Appellant and his spouse filed joint tax returns thereby utilizing the system in that respect. Appellant and his spouse took advantage of his employer, Case Western Reserve University, to avail themselves of tuition benefits for spouses of employees.
I find that for appellant to now argue that there was no valid marriage is staggering.
Congratulations to Sharon Comet-Epstein and to John Sayre (Nicola, Gudbranson & Cooper, LLC), who represented the wife.
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The concurrence makes good points in the quoted bit. The husband’s arguments have a strong odor of bad faith.
I’m tempted to say they should find the marriage invalid, then charge him with all the fraud he committed and see which route he prefers.
I had similar thoughts when I first read this: “Are you sure you really should be making this argument?”
And the wife should have him charged with rape too.
That husband is a damn fool, regardless of what his lawyer advised. He should be careful what he wishes for.
It’s a shame he can’t be charged with perjury or fraud for the 12 years of marriage benefits he claimed.
I disagree, this would not be fraud. Fraud requires an intentional mis-statement of fact made with intent to deceive. If someone makes a mistake of law and believes that their marriage is valid and applies for a green card or tuition discounts for their wife then he would not have an intent to deceive.
This situation sounds entirely reasonable. The guy probably believed the marriage was valid until his attorney told him there was a long-shot argument available to avoid alimony.
This is just a sad situation. I understand why many lawyers say they prefer representing murderers over family law. Wild dirty tricks seem more common in the latter.
I would have hoped that the man’s lawyer would have stopped this before it ever got to a judge, much less an appeals court. “If you lose, we lose face. If you win, you are admitting to immigration and tax fraud”.
Interestingly, Ohio does not have a common law marriage statute, but in most of the rest of the country, even if they did somehow invalidate the wedding, it would have been a loss anyway on those grounds
And I blame the family court judges. I’ve done just enough family law to know that in family court, there is no downside to not playing by the rules. It’s the judges who allow that state of affairs to continue.
“I would have hoped that the man’s lawyer would have stopped this before it ever got to a judge, much less an appeals court.”
Then he would not have gotten paid the 33,000 [likely more] in fees. Two man family law practices don’t get too many such cases.
re: “Ohio does not have a common law marriage statute, but in most of the rest of the country …”
I don’t think that’s strictly true but I’d be happy to be corrected if you have better sources.
First, Ohio no longer recognizes new common law marriages but does still recognize common law marriages started before Oct 10, 1991. Second and more to the point, at the time Ohio did this, they were in the minority in still recognizing common law marriages at all. According to this source, common law marriages are recognized in only 9 states plus the District of Columbia.
Even if the validity of the marriage could be attacked by third parties, the husband was in no position to do so.
In my state invalid or missing paperwork does not necessarily invalidate a marriage. This rule dates back to a time when marriage was really important and the state didn’t want a house full of bastards because the priest got drunk after the ceremony and forgot to turn in the certificate. I think the marriage license obtained before the marriage still has to be more or less correct. Not fully accurate, but at least clearly naming the right people. A former governor was considered legally married even though she had lied on her marriage paperwork by saying her husband-to-be had only been married once.
There has been some distance from the Victorian novels that end happily when a defrauded woman, horrified that she is ruined for life, discovers by that by an unintended accident the fake marriage that her defrauder used to seduce her was actually valid, meaning she’s really a wife, and she can live for the rest of her life as a married celibate basking in the respect of society and able to a attend all the social functions, rather than as a tramp and a slut, damaged goods that everybody who’s anybody spits on and nobody respectable ever invites to anything. The fact that her husband won’t be seeing her again, will continue to do the same thing to other women, and she’ll be living alone the rest of her life doesn’t detract in the least from her radiant happiness at having escaped a terrible fate.
Interesting…is there a particular novel in this genre which is outstanding?
Nothing like family law to make for interesting reading.
Wonder why the fool didn’t just file for a divorce?
He was upset by the property distribution and alimony order. If there was no marriage to dissolve he could have ended up better off financially.
I don’t know Ohio law on “palimony”. In some states the woman who thought she was a wife but wasn’t could still get money from the man she thought she was her husband but wasn’t.
Ironically, after legal fees and the ultimate decision he would seem to be much worse off.
The purpose was ro get out of the requirements of divorce. You have to pay a spouse only. In a conservative state, if you break up with a shack up you don’t have to pay anything.
This reminds me of the old sit-com trope where happily married couple learns their minister was a fraud, and hilarity ensues. Except here, there doesn’t seem to have been much hilarity.
I think that there should generally be a presumption in favor of the regularity and validity of foreign marriages by state courts, at least in cases where the parties have held themselves out as husband and wife for a substantial period of time. It seems to me that because foreigners obviously cannot comply with state registration laws when they marry, and it may be difficult to determine if a marriage entered into years or decades ago met every jot and tittle of the local formalities, holding them to the strictures of registration formalities tends to work an injustice. Having some sort of facially plausible formal marriage ceremony and holding oneself as husband and wife for a substantial period of time ought to be enough, and the courts generally shouldn’t take a super-close look at the underlying ceremonial details.
I wouldn’t necessarily take this position in every case. Perhaps a telephonic marriage conducted just before an immigration application might warrant additional scrutiny if used for immigration purposes. Perhaps immigration purposes generally might warrant closer scrutiny. But here, as the concurrence especially noted, the parties lived and held themselves out as husband and wife in the US for some time, and the husband took considerable advantage of the marital status to obtain benefits available only to spouses. And the marriage is being challenged in a state court for purely domestic purposes.
I’ve heard of a defendant marrying the star witness for the prosecution to prevent her from testifying against him.
Would that really work?
It can work in Massachusetts.
According to an article I read a long time ago, the scenario goes like this. You have a boyfriend and girlfriend. They’re serious but he at least is not planning to get married any time soon. One night they’re out for a drive and *bang* he hits somebody. His girlfriend has been with him all night. She know’s if he’s been drinking. She had a perfect view from the passenger seat. She can put him in jail. Without her testimony there is reasonable doubt. The prosecutor sees what’s coming and tells the judge to order the couple to stay apart until trial. But love, I mean guilt, conquers all and they get married. Under state law he can now prevent her from testifying against him even about incidents before they were married.
Justice would see him convicted of attempted immigration and tax fraud for declaring himself married when he didn’t believe it.
And then separately give her the full estate because they really were married, but he attempted to defraud her by claiming otherwise.
I’m not sure why estoppel was not the deciding issue.
Judge: “You claimed marriage for years. You reaped the benefits of marriage during the entire relevant time. Therefore, you are now estopped from claiming the marriage was never valid.”
Easy-peasy. Works even for when a husband had an absolutely good-faith belief in a valid marriage and now has an absolutely good-faith belief that the marriage was never legitimate. The only exception might be if the husband had been the victim–ie, the wife used fraud or the like to get husband to enter into the marriage.
Judge: “Hey, wife…you’re estopped from relying on estoppel.”
I think the basic answer is that whether a marriage is valid or not depends, at least in a registration state, on more than whether the couple simply says it is.
Perhaps tue best analogy might be business, where certain formalities are still regarded as having something of a magic character that makes a real difference in people’s status and lives. It would be like claiming you are a corporation, or that you own a certain real property. Simply asserting these things doesn’t make it so. There are formal documents and acts required to determine if this is so ot not. You don’t become a corporation by estoppel.
In a common-law marriage state what the couple say and do is much more critical. But even there, there’s no estoppel concept. The couple’s words and acts are simply evidence of the objective existence or non-existence of the status.
Perhaps parental status might also be a reasonable analogy. One doesn’t become a child’s parent by estoppel, although ones behavior can be relevant. Parental status has an objective character that exists independently of how one represents things to be.
Reader,
But aren’t you talking about something slightly different. I’m not saying that a person or business should be able to claim corporation status via estoppel. I’m saying that, once the business *has* been established as a corp, has reaped corp benefits, has held itself out as a corp…then it very well might be estopped from suddenly claiming, “I don’t have responsibility X since we’re really not a corporation.”
I would think a judge could respond: “Sorry. You’re estopped from disclaiming your corp status. Now, once this case is done and once you’ve paid out the fines (or whatever the costs happen to be) in this and other existing cases…THEN you are absolutely free to get rid of your corp status. In fact, given what you’ve said under oath, it’s gonna be an order of this court that you indeed do just that.”
I realize coming up with an analogy is not so easy, and since people generally take corporate status to limit liability, coming up with a hypothetical where someone would disclaim corporate status to avoid liability may be a stretch.
But I think the real property analogy is easier.
A squatter invites people over, or maybe rents to them, falsely claiming to own the property. An accident happens and he gets sued. Here, there might be reasons why he might want to disclaim ownership of the property in order to get out of duties applicable only to property owners.
Suppose the would-be tenants sued only for causes of action applicable only to landowners. Then while the fraudster might be liable for fraud and perhaps other causes of action that might result in greater total damages than a landowner’s liability for an accident, nonetheless the fraudster would be able to get out of these particular causes of action. Simply representing you are a landowner doesn’t make you one. There might be situations where that might create, or be perceived to create, a tactical advantage of some sort.
Also, you may have misunderstood my corporate hypothetical. In my hypothetical you never register as a corporation, i.e. you never file articles of incorporation with the state. So you aren’t actually a corporation. You simply claim to be one.
I understand that a case where you file some sort of corporate papers and then later claim there is a defect in them so they were never valid might be closer to this case than one where you never file them at all.
I make $1800 a day working from home to solemnize Bangla marriages over the phone.
thread-winner
This seems depressing.
If the marriage was contracted under Muslim law, I somehow doubt the divorce will be dealt with according to Muslim law.
Your honor, I plead: talaq, talaq, talaq. Am I free to go?
It is routine for people with religous concepts of marriage dissolution to go through religious proceedings in addition to the secular ones. Catholics get annulments, Jews and Muslims get divorces, etc.
Whether this particular couple did so is another question. The ex-husband certainly sounds like a shnook.
Divorce in Islam (Wikipedia)
A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi court to obtain judicial divorce, but they must have compelling grounds for dissolving the marriage. The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences. Examples of fault are cruelty; husband’s failure to provide maintenance or pay the immediate installment of mahr; infidelity; desertion; moral or social incompatibility; certain ailments; and imprisonment harmful to the marriage. Judicial divorce can also be sought over violations of terms stipulated in the marriage contract. Different legal schools recognized different subsets of these grounds for divorce. The Maliki school, which recognized the widest range of grounds for divorce, also recognises wife’s hatred for husband as a valid ground for divorce and stipulates a category of “harm” (ḍarar), which gave the judge significant discretion of interpretation.
But the judge has no jurisdiction over Muslim law divorces, no more than Jewish divorces, Catholic annments, etc.. It’s the parties’ responsibility to address religious divorce. The only exception would be if the parties had a prenuptual agreement to provide for a religious divorce. But even there it might not be enforcible unless the agreement provided for religious arbitration to umpire disputes over what constitutes religious divorce.
I’ll point out that attitudes of some legislators and members of Congress to elections seem very similar to what this man tried to do.
You set up an election schema with complicated rules that can’t be perfectly met. So there will always be minor defects. Then, if long after the fact there turns out to be an outcome you don’t like, you simply disclaim the results, throw out the whole thing, and you get a second bite at the apple. If you like the results, you get the benefits of legitimacy. If you don’t like the results, you just come up with some defect and throw them out.
It’s pretty much the same principles as the ones here.
The reasons why society has traditionally been reluctant to throw marriges out because of claimed technical defects are, I think, very similar to the reasons why today people argue that society should be reluctant to do this with elections.
Elections today, like marriage traditionally, are characterized as sacred and central to society’s stability and ability to function. Hence the legitimacy of elections has something of the character that the legitimacy of marriage had traditionally. A world where past elections could be easily thrown out long after someone had taken office would have a disruptive effect similar to the effect throwing out a marriage long after the fact has traditionally had.