Aleem v. Aleem

CATHELL, J. Farah Aleem filed suit for a limited divorce from her husband, Irfan Aleem in the Circuit Court for Montgomery County. The husband thereafter filed an Answer and Counterclaim. He raised no jurisdictional objections. Without, however, any advance notification to the wife, and while the Montgomery County action was pending (between the filing of the action for a limited divorce and the filing of the amended complaint for an absolute divorce), the husband, a Muslim and a national of Pakistan, went to the Pakistan Embassy in Washington, D.C., and performed talaq 1 by executing a written document that stated: ⁴⁰⁷ “Now this deed witnesses that I the said Irfan Aleem, do hereby divorce Farah Aleem, daughter of Mahmood Mirza, by pronouncing upon her Divorce/Talaq three times irrevocably and by severing all connections of husband and wife with her forever and for good. “1.

I Divorce thee Farah Aleem “2. I Divorce thee Farah Aleem “3. I Divorce thee Farah Aleem.... ” Petitioner posits that the performance by him of talaq under Islamic religious and secular Pakistan law, and the existence of a “marriage contract,” deprived the Circuit Court for Montgomery County of jurisdiction to litigate the division of the parties’ marital property situate in this country. 2 The trial court found that the marriage contract entered into on the day of the parties’ marriage in Pakistan specifically did not provide for the division of marital property and thus, for that reason alone, the agreement did not prohibit the Circuit Court for Montgomery County from dividing the parties’ marital property under Maryland law. The Court of Special Appeals agreed and stated “[t]hus, the Pakistani marriage contract in the instant matter is not to be equated with a premarital or post-marital agreement that validly relinquished, under Maryland law, rights in marital property.” Aleem v. Aleem, 175 Md.App. 663, 681 , 931 A.2d 1123, 1134 (2007).

The Court of Special Appeals further stated: “If the Pakistani marriage contract is silent, Pakistani law does not recognize marital property. If a premarital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law.... In other words, the ‘default’ under Pakistani law is ⁴⁰⁸ that Wife has no rights to property titled in Husband’s name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband’s name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy.” Id. at 681 , 931 A.2d at 1134 .

Petitioner presents two questions 3 for our review: “1. [Did] the Court of Special Appeals disregard[ ] fundamental principles of international comity and conflicts of laws in refusing to recognize a Pakistani divorce because Pakistan and Maryland employ different ‘default rules’ for the division of property between spouses[?]” “2. [Did] the Court of Special Appeals disregard[ ] fundamental principles of international comity and conflicts of laws in concluding that Pakistan lacked jurisdiction to dissolve the parties’ marriage because the parties resided in Maryland on diplomatic visas[?]” The Relevant Facts The parties, both citizens of Pakistan, were married in Pakistan in 1980. The marriage was arranged by the families of the parties. In accordance with Pakistani custom there was a written agreement presented to the wife on the day of the wedding for her to sign. At that time she was 18 years old and her husband was 29 years old.

She had just graduated from high school and he was a doctoral candidate at Oxford University in England. The agreement provided as follows: ⁴⁰⁹ “TRUE TRANSLATION 4 (URDU TO ENGLISH) FORM NO. 2. (See Rules : 8 & 10) Under Rules: 8 & 10 of Muslim Family Laws Ordinance, 1961 (VIII of 1961) FORM MARRIAGE CERTIFICATE/ CONTRACT 1. Name of the Ward .

Saddar TownAJnion: 7 3 Tehsi!/ ATTESTED Police Station ; saddar and District Karachi Where the marriage took place 2. Neme of the bridegroom & His father, with their respective residence: IRFAN ALEEM S/o DR. ABDUL ALEEM QURESHE, 3-B,South Circular. Avenue, Defence Soceity, Karach i. 3.

Age of the Bridegroom: 2 9 ysar<! . 4. Name oftha Bride &herfather, with their farah mirza d/o MEHM00D mirza, respective residence: A-100, umt-3, Latifabad, Hyderabad. Not previously married 5. Whether the Bride Is VlrgOft a Widow or a Divorced Wife: virgin 6.

Age of the Bride : IS years. 7. Name oftheVaMl.ifany, appointed by the muhammad sultan mirza s/o mühammad ahmfid mjrza Bride, his father's name and his residence : d-20, p.e.c.h.s., Karachi. " 3. Names of the Witnesses to tie appointment i) of Bride’s Vakil, with their father's name, their residence and the relationship with the 2) Bride.

MUJAHID FAROOQI S/o KAZAHARUDDIN FAROOQI B-20, Gizn Boulevard, Karachi. ZUBATR HASAN RIZVI S/o NAWAB ABDUL QASIM Rizvi, R-78, Block-5, F.B. Area, Mansoora, 9. Name of the Vakil, if sny, appointed by the Bridegroom, his father's name and his / / / residence: 10. Names of the Witness to the appointment of the Bridegroom’s Vakil with their father’s / / / names and their residence. 11, Name8oftheWitnes8e8totheMarriage. i)bashir akmed s/o s.m. ibrahim, 21 Khayabantheir father’s names and their residence: e-Mujahid, Defence society, Karchi. 2) ABDUR RAZ2AQ DESAN S/o DAWCOD, No.6, Jinnah Society, Shahoed-e-Millat Road, Karachi. 12 Date on which the marriage was solemnized: July 16, 196U ⁴¹⁰ 13.

Amount of Dower: Rs.51,000/-{Rupees Fifty One Thousand only) 14. How much of the Dower is Mu’ajjal (Prompt) and how much Mu’wajjal (Deferred): Deferred 15. Whether any portion of the dbwerwas paid at the time of marriage, if so, how much: Ilf 16. Whether any property was given in lieu of the whole or any part of the dower, wifi specification of the same and its valuation 111 agreed to between the patties: 17.

Special conditions, If any: / / / [This area contains Seats and Stamps] 18.Whetherthehu3bandhaddelegatedthopowar / / / of divorce to the Wife, if so under what conditions: 19. Whether the husband’s right of divorce in any way curtailed: / / (partially obscured by seal] 20. Whether any documents was drawn up at the time of marriage relating to dower and Maintenance,etc., Ifsocontents thereof : [obscured by sealj 21. Whether the bridegroom has any existing wife, and If so, whether he has secured the /[partially obscured by seal] Permission of Arbitration Council under the Muslim Family Ordinance, 1961 to contract another Marriage: 22.

Number and date of the Communications conveying to the Bridegroom the permission III of the Arbitration Council to contract another marriage: 23. Name, father’s name and address of the person by whom the marriage was solemnized: shamsul HASAN, Khateeb Mas^id-eKhizra, Saddar, Karachi. 24. Dots of Registration of Marriage: July 19, 1990 25. Registration Fee Paid: Paid.” That agreement provided for a “dower” of 51,000 rupees 5 ⁴¹¹ the payment of which was “deferred.” There was no other express or implied waiver of any property rights of either party.

During the presentation of the agreement, the wife was advised by her uncle who was acting as a “vakil.” There is no evidence in this case, however, that the wife’s uncle was a lawyer. 6 Under Pakistani law, unless the agreement provides otherwise, upon divorce all property owned by the husband on the date of the divorce remains his property and “the wife has [no] claim thereto.” The opposite is also applicable. The husband has no claim on the property of the wife. In other words, upon the dissolution of the marriage, the property follows the possessor of its title. Shortly after their marriage, the husband moved to England.

The wife joined him later and they resided there for four years while he completed his studies. They then moved to the United States and began to reside in Maryland while the husband worked at the World Bank. They maintained a residence in this State for 20 years and resided here at the time the wife filed for divorce and the husband went to the Pakistan Embassy and performed talaq. The parties have two children, both of whom were born in this country, are United States citizens, and reside in this country.

The wife is now a resident of Maryland, and holds a green card status. The central issue in the present case concerns the wife’s attempt to have the husband’s pension from the World Bank, which relates primarily to his work performed while he was a ⁴¹² resident of this country, declared to be “marital property” and to have other property declared marital property and thus be entitled to half of that pension and property under Maryland law. 7 Discussion More than a hundred years ago, the Supreme Court of the United States, in an extensive discussion relating to the judgments of foreign countries, discussed the comity due judgments of foreign countries and full faith and credit issues. We include a comprehensive discussion from that opinion, in order to place the issue in historical context. In Hilton v. Guyot, 159 U.S. 113 , 16 S.Ct. 139 , 40 L.Ed. 95 (1895), the Supreme Court of the United States opined, as follows: “International law, in its widest and most comprehensive sense,—including not only questions of right between nations, governed by what has been appropriately called the ‘law of nations,’ but also questions arising under what is usually called ‘private international law,’ or the ‘conflict of laws,’ and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation,—is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man, duly submitted to their determination. “The most certain guide, no doubt, for the decision of such questions is a treaty or statute of this country.

But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from ⁴¹³ judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. “No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call ‘the comity of nations.’ Although the phrase has been often criticized, no satisfactory substitute has been suggested. “‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. “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. “The law upon this subject as understood in the United States at the time of their separation from the mother country was clearly set forth by Chief Justice Parsons, speaking for the supreme judicial court of Massachusetts, in 1813, and by Mr. Justice Story in his Commentaries on the Constitution of the United States, published in 1833.

Both those eminent jurists declared by the law of England the general rule was that foreign judgments were only prima facie evidence of the matter which they purported to decide; and that by the common law, before the American Revolution, all the courts of the several colonies and states were ⁴¹⁴ deemed foreign to each other, and consequently judgments rendered by any one of them were considered as foreign judgments, and their merits re-examinable in another colony, not only as to the jurisdiction of the court which pronounced them, but also as to the merits of the controversy, to the extent to which they were understood to be re-examinable in England.... “It was because of that condition of the law, as between the American colonies and states, that the United States, at the very beginning of their existence as a nation, ordained that full faith and credit should be given to the judgments of one of the states of the Union in the courts of another of those states. “By the articles of confederation of 1777 (article 4, § 3), ‘full faith and credit shall be given, in each of these states, to the records, acts and judicial proceedings of the courts and magistrates of every other state.’ By the constitution of the United States (article 4, § 1), full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.... “The decisions of this court have clearly recognized that judgments of a foreign [country] are prima facie evidence only, and that, but for these constitutional and legislative provisions, judgments of a state of the Union, when sued upon in another state, would have no greater effect. “Chancellor Kent ... [said]: ‘No sovereign is obliged to execute, within his dominion ... he is at liberty, in his courts of justice, to examine into the merits of such [foreign] judgment [for the effect to be given to foreign judgments is altogether a matter of comity, in cases where it is not regulated by treaty]----’ ⁴¹⁵ “The reasonable, if not the necessary, conclusion appears to us to be that judgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country, but are prima facie evidence only of the justice of the plaintiffs’ claim.” (Brackets in original.) (Citations omitted.) (Some emphasis added.) Hilton, 159 U.S. at 123-28 , 16 S.Ct. at 143-68 . In Andes v. Versant Corp., 878 F.2d 147, 149 (4th Cir.1989), that court reiterated the lack of applicability of the Full Faith and Credit Clause of the Federal constitution to judgments from foreign countries, saying “The Full Faith and Credit Clause of Article IV § 1 of the Constitution of the United States does not apply to foreign judgments.” The same federal court of appeals in Jaffe v. Accredited Surety and Casualty Co., Inc., 294 F.3d 584 (4th Cir.2002), opined as follows: “Ruth Jaffe’s reliance on this argument seems to arise from her confusion as to what is at issue in her case. With respect to her claim, we must determine the enforceability of the prior Florida judgment refusing to enforce her Canadian default judgment, not the enforceability of the Canadian default judgment itself. Neither the full faith and credit statute, nor the Full Faith and Credit Clause of the Constitution, applies to judgments issued from foreign countries.

Accordingly, while both federal and state courts in the United States must give ‘full faith and credit’ to any judgment of a state court empowered to enter the judgment, they need only recognize the judgment of a foreign court to the extent that this recognition comports with the principles of judicial comity. “For this reason, a state can refuse as Florida did, to recognize a foreign judgment on the ground that it conflicts ⁴¹⁶ with the public policy of that state.” (Citations omitted.) (Emphasis in original.) Jaffe, 294 F.3d at 591-92 . And see, Taveras v. Taveraz, 8 477 F.3d 767, 781-83 , (6th Cir.2007) (“However, it is well-settled that, unlike the recognition and enforcement of judgments due to sister states, a foreign country’s judgments are not subject to the Full Faith and Credit Clause.” (citations omitted).) Much earlier, Maryland had formulated the same concepts in the cases of Owings v. Nicholson, 4 H. & J. 66 (1815), 9 which involved a judgment in the courts of Martinique, and in Gardner v. Lewis, 7 Gill 377 (1848), a case involving comity between states, but in which we relied on the law of comity between nations. In Gardner we stated as follows: “The comity of nations, we are told, (see Story on Conflict of Laws, p. 38,) ‘is derived altogether from the voluntary consent of the latter,’ (the State, within whose territory it is attempted to make the law of another State obligatory,) ‘and it is inadmissible, when it is contrary to its known policy, or injurious to its interests;’ and it is ‘only in the silence of any positive rule, affirming, or denying, or restraining the operation of any foreign laws, the Courts of justice presume the tacit adoption of them, by their own government; unless they are repugnant to its policy or prejudicial to its interests.’ This also, he assures us: ‘A nation will not suffer its own subjects to evade the operation of its fundamental policy, or laws; or to commit fraud in violation of them, by any acts or contracts made with that design, in a foreign country; and it will judge for itself, how far it will adopt, and how far it will reject, any such acts or contracts.’ ” Gardner, 7 Gill at 392 . In a case somewhat similar to the case at bar, the situs of property of a wife was in Maryland.

Maryland had enacted a ⁴¹⁷ law (pursuant to a constitutional mandate) that provided that the property of a wife in Maryland was not liable for the debts of the husband. The wife and the husband moved to, and became domiciled in, Illinois. That state had no comparable law. An action was brought to attach the wife’s property in Maryland for the debts of the husband on the ground that the law of the parties’ domicile should control.

We rejected that contention in Smith v. McAtee, 27 Md. 420 (1867), stating as follows: “And although we find this right of the wife to her property, protected in this State, by public policy, by statute and by decree of a Court of Equity, yet it was earnestly contended by the learned counsel for the appellee, that a creditor of the husband had a right to attach this fund in our courts of justice for the debt of the husband, as by the laws of Illinois, where the husband and a wife resided, the husband was entitled to all the personal property of the wife, and that by virtue of this law of the domicil the fund was vested in the husband. And he claimed this right to divest the wife of her property by the law of the domicil, on the ground of comity. In this case we cannot sanction such a right, for it has been decided that comity is overruled by positive law, and that it is only in the silence of any particular rule, affirming, denying or restraining the operation of foreign laws, that courts of justice presume a tacit adoption of them by their own government. It is certainly competent for any State to adopt laws to protect its own property as well as to regulate it, and ‘no State will suffer the laws of another to interfere with her own, and in the conflict of laws, when it must often be a matter of doubt, which shall prevail, the court which decides, will prefer the laws of its own country to that of the stranger.’...

If therefore our legislative enactment in regard to the property of the wife and the laws of Illinois conflict, it cannot be made a question in our own courts which shall prevail. ‘Where there is no constitutional barri ⁴¹⁸ er, we are bound to observe and enforce the statutory provisions of our own State.’ ” (Citations omitted.) Smith, 27 Md. 420, 437-38 . Shortly after the decision in Hilton v. Guyot, supra, we conformed to its principles in a case where the issue was whether the laws of Delaware or Maryland would control in respect to certain personal property. Albeit in reference to comity between states, we discussed it in Lowndes v. Cooch, 87 Md. 478 , 39 A. 1045 (1898), as follows: “The leading inquiry, therefore, which this appeal presents is, does the law of Delaware or the law of Maryland control the disposition of the bank stock in controversy here? ... ‘It [personal property] follows the law of the person. If he dies, it is not the law of the country in which the property is, but the law of the country of which he was a subject, that will regulate the succession'.’ ... “This doctrine, however firmly established, is nevertheless subject to proper limitation to the effect