Supreme Court, Monroe County, November 5, 2021

Leland T. Williams, Rochester, for plaintiff.

Matthew R. St. Martin, Newark, for defendant.

A couple is married in Iraq and signs a mahr, which mandates certain payments from the husband to his wife at the time of marriage and thereafter, if a divorce occurs. The mahr is executed, based on the evidence before this court, in accordance with the marriage laws of Iraq. Now, after the husband commences a divorce action in New York, the parties filed competing declaratory judgment actions: the wife seeks to enforce the mahr and the husband argues that it is not acknowledged in accordance with New York law and hence unenforceable.

The mahr is a marriage agreement in accordance with Islamic law wherein the husband pledges to pay the wife a "deferred dowry" in the event of a divorce. (Alesawy v Badawi, 56 Misc 3d 949, 951 n 1 [Sup Ct, Westchester County 2017].) The New York courts have varied in their treatment of mahrs and a recent case suggests that if the mahr were executed in New York but not properly acknowledged, then it is unenforceable in a matrimonial action. (Khan v Hasan, 73 Misc 3d 422 [Sup Ct, Nassau County 2021, Goodstein, J.].) In contrast, in this matter, the mahr was executed in Iraq and, in this court's view, raises the issue that skirts the broad and persuasive ruling in Khan v Hasan that, by its terms, applies only to mahrs executed in New York.

The mahr before this court is drafted in Arabic. The wife contends that the mahr is authentic and she produced a copy for the court. The document—described in the translation as a "marriage deed"—references a Judge of the Personal Status Court in Al-Zahoor,^[FN1] Mr. Dheyaa Faisal Mohammed, who declared that the husband and wife in this matter were identified and having "declared their mutual consent and approval:"

[*2]"marriage between them was solemnized upon an advance dowery of 10 million and 500 Iraqi dinars and a late dowery of 20 million Iraqi dinars, to be{**73 Misc 3d at 915} paid by the husband in case of death and divorce, this marriage deed was issued and registered on 12/6/2016."

The mahr contains a signature by the officiant, Dheyaa F. Mohammed. In addition, there is a section described as the "Civil Status Card," which includes recording numbers, ethnic identification of the wife as from Karkh (a suburb of Baghdad), the husband as Bathaa (Bathaa is a community between Basra and Baghdad in Iraq), lists the dates of birth of the couple and their prior marital status. The wife also offers a copy of an authentication document, which contains a seal from the officiant, a further signature from Jasmin Mohammed Abood, a board president of the Federal Appeal Court in Baghdad, and stamps from the Supreme Judiciary Council Presidency of the Federal Appeal Court in Baghdad.

In the copies before this court, it is difficult to determine what other marks are affixed to the marriage deed. However, the wife contends that the marriage deed includes ink marks by both spouses made with their respective index fingers. Based on these facts, the wife seeks to enforce the mahr. Importantly, in the responsive papers, the husband does not contest the authenticity of the mahr. He does not dispute that he was present when it was issued, that he affixed his fingerprint to the document, that he paid the first installment required by the mahr at the time of marriage and that the document before the court is an accurate translation of the Arabic terms of the mahr into English.

The husband's defense is simple: the "marriage deed" is not acknowledged according to Domestic Relations Law § 236 (B) (3) and hence, unenforceable. The statute provides: "An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." (Id.) It is undisputed that the mahr before this court was not acknowledged in accordance with that statute. A proper acknowledgment is an "essential prerequisite" to comply with the terms of Domestic Relations Law § 236 (B) (3) and the mahr in this case, while simply signed by a witness and marked by the husband and wife, does not, on its face, satisfy the requirements of Domestic Relations Law § 236 (B) (3). (See Matisoff v Dobi, 90 NY2d 127 [1997]; Galetta v Galetta, 21 NY3d 186 [2013].){**73 Misc 3d at 916}

The New York courts have generally struggled in determining whether to enforce a mahr under any circumstances. In Farag v Farag (4 AD3d 502 [2d Dept 2004]), the Court refused to let a mahr limit the terms of equitable distribution or marital support because the document did not contain an express waiver of the wife's rights under New York law and was not properly executed under New York's requirements. (See also Ahmad v Khalil, 40 Misc 3d 1206[A], 2013 NY Slip Op 51058[U] [Sup Ct, Kings County 2013].) The Second Department seemed to take a different tack in Badawi v Alesawy (135 AD3d 792 [2d Dept 2016]), in which the Court upheld a mahr which required the husband to pay $250,000 to his wife when they divorced, even though the agreement, signed by two witnesses and the Imam of the Islamic Cultural Center of New York, was not acknowledged in accordance with Domestic Relations Law § 236 (B) (3). Other New York trial courts have resorted to strict construction [*3]of mahrs, holding that if they meet customary contractual requirements, they can be enforced. In O.Y. v A.G. (48 Misc 3d 1222[A], 2015 NY Slip Op 51190[U] [Sup Ct, Westchester County 2015]), the court noted that the mahr, while unusual under New York law, was enforceable under Islamic law, even though signed by the wife's uncle, as her proxy, because the wife had given clear acceptance of the mahr before witnesses. In an earlier decision, the trial court in Aziz v Aziz (127 Misc 2d 1013 [Sup Ct, Queens County 1985]) held that a mahr executed in accordance with New York civil law could be enforceable, relying on the Court of Appeals decision in Avitzur v Avitzur (58 NY2d 108 [1983]). In the latter case, the Court, in a 4-3 decision, permitted enforcement of the secular terms of a ketubah, a contract at the heart of the Jewish marriage ceremony.

Recently, in Khan v Hasan, the Nassau County Supreme Court held that

"New York courts have not specifically addressed the validity and enforceability of unacknowledged mahr agreements when all the proceedings have taken place in New York. But, even if the New York courts had adopted the 'neutral principles of law' approach and applied it to the parties' mahr agreement, it still could not be upheld due to the lack of an acknowledgment. The language, history, and subsequent New York statutory law of Domestic Relations Law § 236 (B) (3), including the case precedent of Matisoff and Galetta, have clearly created{**73 Misc 3d at 917} no exception to the acknowledgment requirement." (Khan v Hasan, 73 Misc 3d at 429-430.)

The court in Khan v Hasan confined its determination solely to whether to enforce the mahr "when all [of] the proceedings have taken place in New York." (Id.)

Here, the mahr was executed in Iraq and there is no dispute that the document is authentic and would be enforced in Iraq. New York has long held that comity should be extended to uphold the validity of foreign nuptial matters unless recognition of the judgment would do violence to a strong public policy of New York. (Matter of Gotlib v Ratsutsky, 83 NY2d 696, 699-700 [1994] [recognizing a divorce in the Soviet Union].) New York's strong public policy further favors individuals ordering and deciding their own interests through contractual agreements. (Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]; Matter of Greiff, 92 NY2d 341 [1998]; see also H.S. v M.S., 48 Misc 3d 1212[A], 2015 NY Slip Op 51104[U] [Sup Ct, Westchester County 2015].) The generally accepted rule is that " '[a]ll matters bearing upon the execution, the interpretation and the validity of contracts . . . are determined by the law of the place where the contract is made' " (Auten v Auten, 308 NY 155, 160 [1954]; see also McKoan v McKoan, 15 Misc 3d 1115[A], 2007 NY Slip Op 50653[U] [Sup Ct, Westchester County 2007]). Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts have generally recognized all the provisions of such decrees, including any agreement which may have been incorporated therein, regardless of whether the agreement was acknowledged in accordance with Domestic Relations Law § 236 (B) (3). The only modification of such a foreign agreement is permissible by New York courts if required by reason of some compelling public policy. (See Greschler v Greschler, 51 NY2d 368, 376-377 [1980].) Therefore, a duly executed prenuptial agreement executed in a foreign nation in accordance with that nation's laws will be found to be valid and enforceable in New York. (Greschler v Greschler, 51 NY2d 368 [1980]; see H.S. v M.S., 48 Misc 3d 1212[A], 2015 NY Slip Op 51104[U] [Sup Ct, Westchester County 2015] [the agreement, in German, was subscribed by the parties before a notary public in Germany]; Cohen v Cohen, 93 AD3d 506, 506-507 [1st Dept 2012] [acknowledgment requirement in Real Property Law § 301-a was [*4]satisfied by plaintiff's filing, at the direction of the court, of a certificate of conformity attesting to the credentials of the{**73 Misc 3d at 918} French official who drafted the agreement, and certifying that his proof of acknowledgment of the agreement conformed to the laws of France];^[FN2] Badawi v Alesawy, 135 AD3d 792, 793 [2d Dept 2016] [the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236 (B) (3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York, and the trial court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby]; Crowther v Crowther, 27 Misc 3d 1211[A], 2010 NY Slip Op 50677[U] [Sup Ct, Kings County 2010] [plaintiff's status as a Dutch citizen, the parties' Dutch civil marriage ceremony at the Dutch embassy in Ghana, and the fact that the prenuptial agreement was drafted by a Dutch attorney in the Netherlands, and executed by the parties' agents in the Netherlands, provide sufficient nexus for the application of Dutch law and the application of Dutch law to the prenuptial agreement under the circumstances would not violate any strong public policy of the State of New York].)

In this instance, the mahr meets the criteria for application of comity as enunciated above. The husband never suggests that the mahr is not enforceable in Iraq or that its execution in Iraq was coerced or otherwise less than a voluntary agreement. To give comity to the marriage in Iraq—and all of its features—the court must enforce the mahr and require the husband to pay the required second installment of the dowry.^[FN3] However, while this court will enforce the agreement, the consequence of that enforcement may impact equitable distribution under New York law. Because this court views the mahr as a contract that requires payment by the husband, then the benefit of that contractual payment to the wife—it is her asset—may be a factor in determining equitable distribution or offset a potential claim for maintenance. This court declines to{**73 Misc 3d at 919} determine, at this stage, whether the payment required by the mahr is a marital asset for the wife or a marital liability for the husband. If the mahr payment is a separate liability for the husband, then it may also impact equitable distribution of other assets or liabilities. These issues remain for final resolution, either through negotiation or trial. The wife's motion for a judgment declaring the mahr enforceable against the husband is granted. The husband's request for a declaratory judgment otherwise is denied.