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Foreign Law in American Courts
Texas Court Refuses to Enforce Pakistan Court's Divorce Judgment, in $100M-Marital-Community-Asset Case
From Azhar v. Choudhri, decided today by the Texas Supreme Court:
A man who has lived in Houston since he was three years old, who built several businesses in Texas, and who accumulated over $100 million in community assets during a Texas-domiciled marriage, traveled to Pakistan to obtain a unilateral divorce from his wife.
He did so without her knowledge or consent, using an Islamic legal mechanism called talaq. His wife was not served with process. She was not heard. She received no notice at all until two years after the divorce was final.
In an unbroken line of decisions originating before the ratification of our Constitution, we have recognized the fundamental "principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result." As a result, efforts to give notice "must include inquiries that someone who really wants to find the defendant would make." Gamesmanship designed to "hide the ball" and prevent the defendant from learning of the lawsuit is inconsistent with our foundational notions of justice.
The Pakistani divorce judgment was issued contrary to these principles. Accordingly, it cannot be afforded comity….
Husband and Wife married in Pakistan in 2008 when Wife was eighteen and Husband was twenty-eight. Husband had been living in Houston since age three but had traveled to Pakistan to find a wife through an arranged marriage. Wife came to Houston in 2010 after obtaining a visa.
Throughout the course of their marriage, the couple amassed over $100 million in community assets. At the same time, Wife alleges that Husband continuously abused her physically and emotionally. In 2012, Husband sent Wife back to Pakistan, ostensibly to renew her visa. But this turned out to be a ruse: In January 2013, Husband divorced her, without her knowledge, through a talaq proceeding in Pakistan.
"A divorce under Sharia law is called a talaq." American courts have recognized that "under Islamic law," a husband initiates a talaq divorce by pronouncing the words "I divorce thee" three times. Our colleagues in North Dakota recently described talaq proceedings as follows:
Under Islamic law, a husband has the right to initiate a divorce ("talaq") against his wife. All that is required to achieve talaq is for a husband to pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. The husband does not need to communicate his three pronouncements to his wife. She need not be present for them or even aware of them. A wife cannot object to a talaq.
According to Wife, Husband did not inform Wife before or afterwards that they would be divorced. No one notified Wife of the proceedings or served her with process. Instead, Husband purported to effectuate service by publishing a notice in a small local Pakistani newspaper a mere five days in advance. Wife did not happen to come across that publication.
Two years later, Wife finally learned of Husband's actions. She then set about challenging that talaq divorce in Pakistan under Pakistani law. When Wife made it back to Houston in June 2015, she promptly filed for divorce in a Harris County court and sought division of marital property. After much procedural wrangling across multiple Pakistani courts, the Pakistan Supreme Court in 2018 denied relief. (The parties dispute whether this denial was procedural or substantive, a debate we need not resolve today.) The Harris County trial court relied on those Pakistani proceedings to dismiss Wife's divorce petition for want of jurisdiction. The trial court granted comity to the Pakistan Supreme Court's judgment and thereby recognized that Husband and Wife were divorced in Pakistan as of May 22, 2013.
The trial court then denied Wife's claim for division of the marital estate. It heard testimony that under Pakistani law: (1) Wife was precluded from bringing additional claims for division of property under Pakistan's preclusion rules and its prohibitions against claim splitting; and (2) Pakistan does not recognize community property—instead, each party is entitled to the property titled in his or her own name. On the basis of that testimony, the trial court concluded that the Pakistani proceedings were conclusive. It accordingly rendered a take-nothing judgment against Wife. The court of appeals affirmed….
The Texas Supreme Court reversed:
In the nineteenth century, the U.S. Supreme Court explained that no sovereign is ever required to recognize the judgment of a foreign sovereign, and comity "is neither a matter of absolute obligation, on the one hand nor of mere courtesy and good will, upon the other." The Court then identified relevant considerations a state court should review in exercising its discretion. Particularly relevant here, it explained that "[a] judgment affecting the status of persons, such as a decree confirming or dissolving a marriage, is recognized as valid in every country, unless contrary to the policy of its own law." That view comports with the longstanding principle that in deciding whether to recognize a foreign judgment, American courts must balance "international duty and convenience" with the rights and protection of their own citizens…. [C]omity of nations "is derived altogether from the voluntary consent [of each nation]" and is not required when comity would be "contrary to [the forum's] known policy, or prejudicial to its interests" …. As Justice Story explained almost 200 years ago, "No nation can be justly required to yield up its own fundamental policy and institutions in favour of those of another nation."
Our State's courts have said much the same….
With those background principles in mind, we turn now to the petition before us. Husband claims that the notice he provided of the Pakistani talaq proceeding—i.e., publication in a local Pakistani newspaper, which Wife never saw, five days before the proceeding at issue—was adequate. We disagree, and we conclude that on these facts, the deficient notice forecloses comity….
"[U]nder both the United States and Texas Constitutions, a 'fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" This is "no mere rule of procedure," but rather, "a 'principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result.'" When courts render judgment "without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict." …
To be sure, service by publication is not always impermissible, and there are situations in which it may be appropriate—as an obvious example, when the victims of terrorist attacks needed to serve Osama Bin Laden and other Al Qaeda operatives notice of pending lawsuits. Still, we have cautioned "that citation by publication or posting violates due process when the address of a known defendant is readily ascertainable." …
Husband put on no evidence that the typical channels of spousal communication—telephone, text messages, email, social media messaging, in-person communication, mutual friends, and so on—were unavailable. Under these circumstances, the trial court should have heeded the default rule that "when a defendant's identity is known, service by publication is generally inadequate." As a matter of law, the notice provided here is constitutionally inadequate, and far short of what our public policy demands. Other countries are welcome to conclude otherwise, but their judgments are not entitled to comity in a Texas court.
{There may well be other reasons to deny comity to this Pakistani judgment, and Wife invokes multiple alternative bases in her petition. We do not address those issues, however, because it is sufficient for our purposes to reverse the judgment below for the reasons set out in this opinion.}
Thanks to Josh Blackman for the pointer.
