| Matter of Farraj |
| 2009 NY Slip Op 50684(U) [23 Misc 3d 1109(A)] |
| Decided on April 14, 2009 |
| Sur Ct, Kings County |
| López Torres, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
In the Matter of the
Petition for a Compulsory Accounting in the Estate of Daoud Farraj a/k/a DAVID I. FARRAJ,
Deceased.
|
In this proceeding for a compulsory accounting, Saed Farraj ("respondent")
has moved for an order pursuant to CPLR § 3211(a)(3) dismissing the petition of Rabaa M.
Hanash ("petitioner"). Respondent argues that petitioner lacks standing to petition the Court as
she was never the lawful spouse of the decedent and, therefore, lacks the requisite standing to
compel an accounting. SCPA § 103 (39). For the reasons that follow, the Court finds that
under choice of law principles, New York law governs the validity of the marriage and that the
couple were validly and legally married under the laws of New York.
Because marriage is a status entered with forethought, planning and certain justified
expectations and the need of the parties to anticipate certainty and predictability in the incidents
of marriage, those justified expectations are the basic policy underlying the law of marriage. The
state where those justified expectations arose and where they were domiciled at the time of the
marriage and made their home immediately thereafter, is the state who has an obvious interest in
the validity of an allegedly void bigamous marriage (Restatement Second Conflict, §
283[1], Comment (b).
Matter of Earl Levi, N.Y.L.J., March 18, 1996, at 31, col. 1 (Sur. Ct. Nassau
Co. 1996).
In this case, the events surrounding the marriage ceremony gave petitioner and decedent a justified expectation that their marriage would be valid. It is not disputed that decedent and petitioner intended to be married and took part in a religious marriage ceremony to signify their union. The "Certificate of Marriage" issued by the mosque with which the imam was affiliated was signed by the decedent as "husband" and the petitioner as "wife." The Certificate states in part that the decedent and petitioner, "have declared and affirmed before [the imam] that each and both of their own free will, agree to be united in marriage," and that the imam, "by virtue of the power vested in [him] as the Imam of the Center, do[es] hereby confirm that the [decedent and petitioner] have been unified by [the imam] in matrimony as husband and wife." Additionally, it is not disputed that New York was their intended and actual matrimonial domicile throughout their marriage beginning on the day of the marriage ceremony. The imam who performed the ceremony was from New York and traveled to New Jersey for the sole purpose of solemnizing the marriage. Although the parties do not address this discrepancy, the marriage certificate even indicates that the certificate was signed in Brooklyn, New York . After the marriage ceremony was performed and the certificate signed, the couple chose to have the marriage celebration in New York in the community in which they resided on that day and, and indeed, throughout their marriage.
It is noteworthy that the parties did not travel to New Jersey to evade restrictions under New York law, rather, they traveled to New Jersey because that was where petitioner's eldest male relative resided. Because New York was their intended matrimonial domicile and their connection with New Jersey was quite limited, it was reasonable for the parties to expect that their marriage would be upheld under the laws of New York. See, e.g., Manning, 568 F.2d at 926 n.4 (choosing Connecticut law to determine the validity of a marriage celebrated in Maryland, "[s]ince at the time of their marriage [the parties] lived in Connecticut, where they continued to live until her death, their justified expectations undoubtedly were rooted in the law of Connecticut"). The parties clearly expected that their marriage would be upheld and relied on the validity of their marriage when they cohabitated and held themselves out as married. To have their marriage retroactively invalidated [*6]after years of living as a married couple would impose undue hardships and stigma on the parties such as the perceived disgrace of having cohabitated while unmarried and the denial of the plethora of rights and privileges of marriage, including spousal inheritance rights. For these reasons, their justified expectations of a valid marriage should be protected.
2) Relevant Policies of the Forum State
When New Jersey's relationship with the parties and the marriage is compared with New
York's relationship, it is clear that New York's relationship is more significant: decedent was a
New York domiciliary; the imam was brought from New York to perform the ceremony; they
returned to New York immediately after the marriage; they were domiciled in New York
throughout their marriage and they held themselves out as married in New York for over four
years. The couple's [*8]only connection with New Jersey was
that the marriage was performed in New Jersey. As such, New Jersey's policy requiring marriage
licenses does not outweigh the presumption of a valid marriage that protects the rights and
interests of parties living in New York who intentionally engage in a marriage ceremony and
believe that they have been married. Thus, under these facts, New York clearly has the most
significant relationship with the parties and the marriage.
Although the marriage between the decedent and petitioner would be invalid under New
Jersey law, the Court finds that because New York has a more significant relationship with the
parties and the marriage, New York law governs the validity of the marriage. Under New York
law, this marriage is not invalidated simply because the couple failed to obtain a marriage
license. Because the parties had capacity to marry, engaged in a religious marriage ceremony and
were domiciled throughout their marriage in New York, this marriage is valid under New York
law.
Because respondent has failed to prove that the marriage was invalid as a matter of law,
respondent's motion to dismiss is denied and the petitioner has standing to petition the Court as
the surviving spouse.
The respondent, Saed Farraj, is hereby ordered to file an accounting within 60 days of
service of a copy of this decision and order with notice of entry.
This constitutes the decision and order of the Court.
Hon. Margarita López Torres
S u r r o g a t e
The Court must also consider the relevant policies of the forum state. R
For these reasons, the New York legislature has chosen to recognize marriages that
have been celebrated in accordance with the customs of a religion, even if the parties do not
obtain the required marriage license. NY Dom. Rel. Law § 25.[FN7] This policy decision reflects a balancing of
competing interests, among them the need to maintain formal records, the threat of falsely
purported marriages when no license is required, and the citizens' expectations that rights and
obligations of marriage have attached because they have participated in a religious marriage
ceremony. The New York legislature has decided that the harm from denying the benefits of a
valid marriage to those who have taken action to show their intent to be married outweigh the
administrative ease of requiring a marriage license. Here, because the parties have gone through
a public wedding ceremony, there is a clear indication of an actual marriage, which eliminates
many of the problems of common law marriages. The New York legislature's decision that a
religious marriage ceremony is sufficient to form a valid marriage reflects New York's public
policy decision to favor the validation of marriage over the enforcement of technical
requirements.
3) Relevant Policies of Other Interested States
Finally, the relevant polices and interests of other interested states in the
determination of the particular issues must be considered in determining which laws govern the
validity of the marriage. R
Here, however, it appears that the concerns New Jersey sought to alleviate by the
enactment of § 37:1-10 are absent. There was a clear event marking the marriage through a
formal public ceremony; the marriage was not formed merely by cohabitation. In addition, there
was no threat of parties claiming that a common law marriage was established in New Jersey
because the parties resided in New York immediately after the marriage ceremony.
Moreover, because the parties did not intend to make New Jersey their domicile and
immediately left the state after the marriage was performed, New Jersey's interest in this
particular marriage is slight. See Mpiliris v. Hellenic Lines, Ltd., 323 F. Supp. 865, 877
(S.D. Tex. 1969) ("[W]hen neither party to a marriage intends to make a state his domicile after
the marriage, this state cannot possess the dominant interest in determining the validity of the
marriage."). Although New Jersey has a substantial interest in having it's residents comply with
its formal marriage requirements, the policy concerns behind the requirement are not as
significant relative to New York's interest in protecting the rights of its citizens.
FINDINGS
Inasmuch as New York has the most significant relationship with the parties and the
marriage, the laws of New York therefore govern the validity of the marriage. If the marriage
had been performed entirely in New York, it would have been valid, and thus, the marriage is
valid. See, e.g., McPeek, 888 N.E.2d at 176-77("[When] the marriage would
have been valid if solemnized in this state, we will recognize the marriage as valid even if the
marriage ceremony took place in another state and did not comply with that state's law or public
policy.") As one New York court reasoned, in denying an annulment where the parties had
cohabitated for less than half a year:
The marriage would have been valid if contracted here There is no evidence that
the parties went outside the state to evade the laws of this state [I]t is clear that their intent was to
return immediately to this state where they were residents and here establish their matrimonial
domicile [K]nowing the law of this state they intended to enter into a contract which would be
legal where it would be consummated, and the solemn ceremony had the significance to them of
establishing a marriage relation which would be valid in this state where they were citizens [I]t
would be contrary to both legal and moral principle to hold otherwise than that the status so
created and maintained for months is valid and binding on both
parties.
Bays v. Bays, 105 Misc. 492, 499-500 (Sup. Ct.
Cortland Co. 1918).
CONCLUSION
Dated: April 14, 2009__________________________________
Footnote 1:Respondent's other argument,
that petitioner was previously married and did not obtain a divorce is without support of any
kind, and as such, the argument will not be considered in this motion.
Footnote 2:In Respondent's Memorandum
of Law in Support of Motion to Dismiss, language is taken almost word for word from a New
Jersey court opinion without giving any sort of attribution as to the source of the language.
Respondent's counsel is cautioned to cite authority appropriately.
Footnote 3:The Court notes, however, that
the actual Certificate of Marriage signed by the imam indicates that the certificate was signed in
Brooklyn, New York.
Footnote 4:Petitioner also argues that, under
Islamic law, the place of the marriage is where the final steps of the marriage, the walima or
reception, and consummation occur. Petitioner asserts that these two events occurred in New
York and therefore the marriage was finalized in New York. The Court declines to reach the
merits of when the marriage was considered "final" under the laws of Islam and chooses instead
to look to conflict of laws principles for resolution of this matter. The Court does find, however,
that the decedent and petitioner were married in a ceremony in New Jersey.
Footnote 5:Although the Restatement is not
binding law, courts routinely use it as guidance, and it has been referred to as an "eminent
authority." Yarborough v. Yarborough, 290 U.S. 202, 224 (1933) (Stone, J., dissenting);
see, e.g., Manning, 568 F.2d at 926 n.4 (2d Cir. 1977) (relying on Restatement
§ 283 to conclude that the laws of Connecticut were to be used to determine the validity of
the marriage because it had the most significant relationship with the parties and marriage rather
than the laws of Maryland where the marriage was contracted); Indosuez Int'l Fin. B.V. v.
Nat'l Reserve Bank, 98 NY2d 238, 245 (2002) (citing the Restatement for the proposition
that "New York choice of law principles require a court to apply the law of the state with the
most significant relationship with the particular issue in conflict").
Footnote 6:While the Restatement provides
that a valid marriage in the state where it is contracted will be valid everywhere, it does not state
the inverse that a marriage invalid where contracted is invalid everywhere. See
R
Footnote 7:Although there does not appear
to be any record of legislative intent for this provision, which was adopted in 1907, a
contemporaneous commentary noted that the provision would avoid "[t]he evil resulting from
invalidating marriages because of technical defects in the ceremony," based on the experience in
England under a prior statute that made such marriages absolutely void. Battershall, Fletcher W.,
The Law of Domestic Relations in the State of New York, 24-25 (1910).