The following papers, numbered by NYSCEF were read on Motion Sequence #001, to wit: Document Nos.: 16-28. Oral argument was heard on the motion on October 20, 2022. This is a final Decision and Order on Motion Sequence #001. I. Facts The parties were married on July 15, 2017, in the City of Alexandria, Country of Egypt in a civil ceremony, followed by a religious ceremony.1 The parties lived together at Plaintiff’s mother’s apartment in Egypt for approximately two months and ten days. The parties are citizens of Egypt, and both are of the Muslim faith. The Defendant moved from Egypt to the United States on October 7, 2017. Plaintiff moved from Egypt to the United States on or about April 2019. Upon Plaintiff’s arrival to the United States, she resided with her mother in Staten Island, New York. When the Defendant arrived at the United States in 2017, he resided at his current Queens County, New York residential address. The parties have been experiencing marital problems and have been living apart. According to the Plaintiff wife, the parties have never resided together in the United States. On or about December 2021, Defendant retained an attorney in Egypt to file a divorce proceeding against the Plaintiff in the nation of Egypt. The divorce sought was styled as a religious or customary divorce, with the full credit of the government of Egypt through their Ministry of Justice. The Defendant, while residing in the United States, executed a power of attorney, granting his attorney authority to represent him in the Egyptian divorce matter without being present. The Egyptian Court power of attorney was issued by the Egyptian Consulate of New York under Number XXX on January 12, 2022, and registered in Alraml Office, Alexandria, Egypt. Defendant contends upon information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the presence and under the authority of Abdelrahman Mohammed Jaafar, a legal authorized Clerk, or government official also known as “Maazoun,” within the District of Alraml at the “Personal Status Court”, and in the presence of two adult witnesses, the Defendant (in the within matter) through his attorney, Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to Defendant’s counsel, the Egyptian Certificate of Divorce recites that both parties are Egyptian Nationals with residential addresses in Egypt. The certificate also states that “after exhausting all means of arbitration pursuant to article 40 of the Maazounin code, Husband confirmed that he had divorced his wife”. The sole requirement was that the Husband utter that he divorced his wife, before the Maazoun and two witnesses after consummation of the marriage. The following day, the Husband’s counsel telephoned Plaintiff and informed her that on February 9, 2022, Defendant appeared before the Maazoun via phone and in the presence of his attorney and two witnesses, and that Defendant uttered that he divorced his wife. The attorney planned for the wife’s aunt to pick up the final divorce judgment from the Maazoun’s office. The Divorce Decree was officially issued by the Department of Interiors in Egypt on February 9, 2022. The wife and Plaintiff herein commenced this action on April 22, 2022. On June 8, 2022, Defendant filed a Verified Answer to the Plaintiff’s Complaint. A preliminary conference was held on September 7, 2022, wherein the issue was raised as to whether the Egyptian Divorce Judgment entered on February 9, 2022, precludes the New York State Supreme Court from adjudicating the underlying complaint under the laws of the State of New York and in conformity with the principles of comity. The formal motion was made on September 26, 2022. Discussion I. Comity and Foreign Judgments It is axiomatic that comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to some strong public policy of the state (see Matter of Gotlib v. Ratsutsky, 83 NY2d 696 [1994]; Greschler v. Greschler, 51 NY2d 368 [1980]; Azim v. Saidazimova, 280 AD2d 566 [2d Dept 2001]). The fundamental principle of private international law reflects a strong policy favoring recognition of foreign judgments, a policy founded upon the desirability of putting an end to litigation and encouraging the uniform enforcement of private rights wherever derived, and New York has adopted a liberal policy of recognition, which is not based on reciprocity (54 NY Jur 2d Enforcement and Execution of Judgments §352 ). The general rule is that a “foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process” (Steffens v. Steffens, 238 AD2d 404, 405 [2d Dept 1997]; see Rosenbaum v. Rosenbaum, 309 NY 371 [1955]). The federal courts have provided greater depth and detail as to this principle, and have long maintained that “[w]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of United States should not allow it full effect, the merits of the case should not, in an action brought in United States upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact” (Asvesta v. Petroutsas, 580 F3d 1000 [9th Cir 2009]). Principles of comity require a court to examine the fairness of a foreign country’s judicial procedures; in examining fairness, a court inquires if: there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it is sitting, or fraud in procuring the judgment (Leser v. Berridge, 668 F3d 1202 [10th Cir 2011]). “This high burden springs from an ordered sense of respect and tolerance for the adjudications of foreign Nations, paralleling that commanded among the States by the Full Faith and Credit Clause of the United States Constitution (US Const, art. IV, §1; see generally, Restatement [Second] of Conflict of Laws §98; Matter of Gotlib v. Ratsutsky, supra ). The comity doctrine is also pragmatically necessary to deal properly and fairly with the millions of relational and transactional decrees and determinations that would otherwise be put at risk, uncertainty and undoing in a world of different people, nations and diverse views and policies. II. Residency and Allegations of Fraud There is controversy as to the residency cited within the Certificate of Divorce, implicating potential jurisdictional defects, and Plaintiff alleges fraud, as both parties have resided in the United States since their arrival from Egypt. It is clear to this court that the Certificate of Divorce was not duly executed pursuant to Domestic Relations Law §236(B)(3) and nothing in the document speaks to the issues of equitable distribution of assets or maintenance obligations in the event of a divorce. The plain reading of the Certificate of Divorce merely provides that pursuant to a dowry provision, the plaintiff was obligated to pay the defendant, as consideration for the arranged marriage, the sum of 50,000 Egyptian Pounds (which is equivalent to approximately $2,553.37), at the time of marriage. According to the Defendant, he tendered $5,000.00 in cash to Plaintiff on August 21, 2021, to account for the deferred dowry, “maintenance” (nafaqa) during the waiting period, and compensation (mut`a) of at least two years maintenance. While similar marriage documents have been upheld and their secular terms deemed enforceable as a contractual obligation, there is no authority to support the plaintiff’s contention that this dowry provision, as written, governed the equitable distribution of the parties’ assets or maintenance obligations or waived the defendant’s rights thereto in this divorce action (see Avitzur v. Avitzur, 58 NY2d 108 [1983]; Aziz v. Aziz, 127 Misc 2d 1013 [Sup Ct Queens Co 1985]; cf Matter of Sherif v. Sherif, 76 Misc 2d 905 [Family Ct NY Co 1974]). Moreover, “[a] divorce decree granted by a foreign country will only be accorded comity by the State of New York where the jurisdiction of the foreign tribunal was predicated upon the consent of both parties, and residency, rather than domicile, was established by a statutory brief contact through the appearance of one of the parties (TT v. KA, 20 Misc 3d 1104 A, [Sup Ct Nassau Co 2008]). Under certain circumstances, a court of this State, in its discretion, may accord comity to a divorce decree granted by a foreign country for the limited purpose of recognizing the termination of the parties’ marriage, however said court may exercise jurisdiction to determine financial issues ancillary to said foreign divorce pursuant to the laws of this State (DRL 236B; see, eg., Nikrooz v. Nikrooz, 167 AD2d 334; Braunstein v. Braunstein, 114 AD2d 46). Where one spouse is a resident of a foreign country and the nonresident spouse is afforded sufficient notice of a divorce proceeding, but the foreign country does not acquire personal jurisdiction over the nonresident spouse, any divorce obtained in the foreign country is in rem only, and same will terminate the parties’ marital status, but will not affect the nonresident spouse’s marital economic rights (see, eg., Vanderbuilt v. Vanderbuilt, 1 NY2d 342 [1956]; Williams v. North Carolina, 325 US 226 [US Supreme Court 1945]; Somma v. Somma, 19 AD3d 477 [2d Dept 2005]; Braithwaite v. Braithwaite, 299 AD2d 383 [2d Dept 2002]; Mattwell v. Matwell, 194 AD2d 715 [2d Dept 1993]). Neither party has provided the Court with the applicable laws of Egypt, leaving this Court unable to ascertain whether said laws require that spouses personally participate in or be afforded notice, or must consent, before the Maazoun perform a customary or religious divorce ritual and/or file a motion for an order confirming the divorce. Regardless of whether the laws of Egypt require jurisdiction over the spouses and/or prior notice, the wife herein may oppose the granting of comity to the “customary or religious divorce” and/or confirming order, on the ground that same were obtained without jurisdiction or service of process or prior notice. The parties have set forth their respective contentions relating to comity with regard to Egyptian Judgment of Divorce dated February 9, 2022, in their motion papers, and during oral argument. This Court has located very few cases dealing with customary or religious divorces. In In re Spondre (98 Misc 524 [Surrogate's Court New York County 1917]), the Surrogate, in upholding the common law marriage of a widow and a decedent on the high seas while immigrating to the United States, acknowledged the validity of a “customary divorce” granted to the widow from her prior husband in Russia /Romania by a rabbi under the principle locus regit actum or “the place governs the act” (see also, Kantor v. Cohn, 181 AD 400 [2d Dept 1918]; In Re Rubenstein’s Estate, 143 Misc 917 [Surrogate's Court Westchester Co 1932]; Sorenson v. Sorenson, 122 Misc 196 [Sup Ct Kings Co 1924] [all upholding customary divorces granted by rabbis in Russia/Roumania/Poland, citing: In re Spondre, supra ]). It is important to note that the Spondre line of cases upheld rabbinical divorces granted in foreign countries when one, if not both, of the former spouses were residents of the foreign country and said divorces were granted prior to the time the former spouse litigating the matter immigrated to the United States. The Supreme Court has maintained that it “will accord comity to a “customary divorce” obtained in a foreign country terminating a “customary marriage” if at least one spouse was a resident of the foreign country or had other sufficient jurisdictional contacts with said country at the time the “customary divorce” ritual was performed; the “customary divorce” would be civilly recognized in a court of law in said country; and the spouse who did not procure the divorce had some prior notice that the ritual divorce would be carried out. Further, such divorce will be recognized only as granting an in rem divorce unless an additional requirement is met, to wit: that the party contesting the validity of the “customary divorce” was a resident of the foreign country at the time the “customary divorce” ritual was performed or had some other jurisdictional contact with said nation sufficient to confer the equivalent of in personam jurisdiction” (TT v. KA, supra). In addition, where the “customary divorce” did not address the parties’ respective marital financial rights and obligations, under the rule of law set forth in Nikrooz v. Nikrooz, supra and Braustein v. Braustein, supra, even if the divorce was accomplished with the equivalent of personal jurisdiction over both parties, the Court will accord comity only to the termination of the marriage and will permit either party to seek the adjudication of ancillary financial issues in this forum. III. Due Process and Equal Protection In the instant matter, it is uncontroverted that the Plaintiff wife had no notice that the Defendant husband had engaged a representative to appear before the Maazoun, Ministry of Justice on his behalf, for the purpose of obtaining a Judgment of Divorce. There are some allegations that the Defendant husband discussed the prospect of divorce, but the record is devoid of any proof that the Plaintiff wife was served with process as to the Egyptian divorce, or that it was a necessary provision of the Egyptian law. It was only until after the decree was issued by the Egyptian Court, that the Plaintiff wife found out about the decree. This Court has no knowledge as to whether the Plaintiff wife was entitled to notice under the laws of Egypt, and/or whether the Court was a competent jurisdiction to adjudicate ancillary issues that are addressed within the Domestic Relations Laws of the State of New York in actions for divorce. Central to the fabric of American jurisprudence are the notions of due process and equal protection. It is well established in American law that, subject to possible obligations imposed by treaty between the United States and a foreign power, there is no constitutional obligation upon a state to recognize a judgment rendered by a court of another nation. But, with due regard to international duty and convenience, and the sense that respect is due to the judicial act of another sovereign, comity, that is, voluntary deference, is customarily accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that in the foreign tribunal there was a jurisdictional predicate in the procedural due process sense and that the public policy of the particular State is not thereby contravened. Should the decree fail to meet these criteria, it will not be recognized as such. Plaintiff raises an issue regarding the residency of the parties, as it appears that the Defendant Husband or his representative provided information to the Maazoun indicating that both parties were residents of the nation state of Egypt at the time of the divorce, even though both parties currently, and at the time of the divorce, resided in the United States, in the State of New York. Plaintiff specifically argues that the Egyptian Divorce Certificate is deficient because it “included a false statement regarding the spouses’ residence within the Country of Egypt, while both parties were residents of the State of New York.” In the United States, the concept of “domicile,” of course, signifies the place where one has their true, fixed, and permanent home and to which, whenever absent, they have the intention of returning and from which they have no present intention of moving. (“Domicile,” 25 Am.Jur.2d §1 [1966]). Domicile has often been spoken of by American courts as if it were the sine qua non of jurisdiction to hear proceedings for the termination of marriage. (See, eg, Sosna v. Iowa, 419 U.S. 393 [1975]; Rice v. Rice, 336 US 674 [1949]; Sherrer v. Sherrer, 334 US 343 [1948]; Williams v. North Carolina, supra; Bell v. Bell, 181 US 175 [1901]; Atherton v. Atherton, 181 US 155 [1901] ) Typical of such expressions is that of Justice Frankfurter for the Court in Williams v. North Carolina: “Under our system of law, judicial power to grant a divorce — jurisdiction, strictly speaking — is founded on domicile (Bell v. Bell, 181 US 175 [1901]; Andrews v. Andrews, 188 US 14 [1903]). The framers of the Constitution were familiar with this jurisdictional prerequisite, and since 1789 neither this Court nor any other court in the English-speaking world has questioned it. Domicile implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicile of one spouse within a State gives power to that State, we have held, to dissolve a marriage wheresoever contracted (325 US at 229-230).” (TT v. KA, supra). The term “residence” is less inclusive, importing merely having an abode at a particular place which may be one of any number of such places at which one is, at least from time to time, physically present. Thus residence, together with the requisite intent, is necessary to acquire domicile, but actual residence is not necessary to preserve a domicile once it has been acquired. New York’s Domestic Relations Law §230 provides that: “[A]n action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when: 1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or 3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or 4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or 5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.” The residency test hinges upon whether the party at issue has had a significant connection to New York as the result of living here with a degree of permanence of continuity for the requisite period. Occasional absences such as vacations or visits, even to Egypt during the period do not preclude a finding that the test has been met. Thus, in Murjani v. Murjani (123 AD3d 409 [1 Dept 2014]), the court held that the two-year residency requirement set forth in Domestic Relations Law §230 (subd. 5) was satisfied by evidence that for two years before the commencement of this action, defendant, although spending a portion of the statutorily relevant period in India and various other destinations, maintained a permanent residence in New York and returned here with regularity. The durational residency test may be satisfied by showing that a party has been a New York domiciliary for the relevant period. In Rajpurohit v. Rajpurohit (122 AD3d 706 [2d Dept 2014]), the husband and wife were married in India in 1994 and had a daughter who was born in India. After approximately three years of marriage, the husband moved to the United States and, a few months later, the wife and child joined him. The family allegedly lived together in New York for approximately one month. However, the wife and the child then returned to India. In 2001, and again in 2010, the defendant commenced divorce actions in India, which were dismissed. The wife then came to New York in 2012 and commenced a divorce action here, alleging that she resided in New Jersey and the defendant resided in New York. The husband claimed that he had not lived in New York for several years and is a resident of New Jersey. The appellate court held that it was proper not to dismiss the action on motion for failure to meet the durational residence standards. The court stated that the wife’s allegations that the husband was domiciled or resided in New York for a continuous period of at least two years immediately preceding the commencement of the action were sufficient, and the defendant failed to show that he has changed his New York domicile (Rajpurohit, supra). It appears that Defendant husband provided information to the Egyptian court that he and the Plaintiff have “residency” in Egypt, to wit: for the Defendant husband at X Street XXXX Salam, Algumrok District, and for the Plaintiff wife at XXXX Street, Infront of XX, Rushdi District — Beginning of Alraml. The definition of “residence” in the State of New York comes from traditional notions of domicile (Matter of Palla, supra, 31 NY.2d, at 47; see also, Matter of Hosley v. Curry, 85 NY2d 447). The determination of an individual’s residence is dependent upon an individual’s expressed intent and conduct (Matter of Palla, supra, 31 NY2d, at 47). The Plaintiff has expressed her intent (in her sworn affidavit), to be a permanent resident of the United States, and State of New York as of the time of her arrival. New York courts have recognized that in this modern and mobile society, an individual can maintain more than one bona fide residence (see, e.g., Matter of Gallagher v. Dinkins, 41 AD2d 946; Matter of Gladwin v. Power, 21 AD2d 665; Matter of Chance v. Power, 14 AD2d 595). Nonetheless, it is clear to the court based upon the papers submitted on this motion, as well as the Verified Complaint, that the Plaintiff has resided in New York State for a continuous period in excess of two years immediately preceding the commencement of this action on April 22, 2022, and that she is a permanent resident of the State of New York. According to the Ministry of Finance for the Nation of Egypt, “[a] natural person shall be considered an Egyptian resident in any of the following cases: 1). If the individual has a permanent home in Egypt. 2). If the individual is residing in Egypt for a period of more than 183 days continuous or intermittent within 12 months, taking into consideration the double taxation treaties (DTTs) between Egypt and other countries that might affect the determination of this period, and 3). if the individual is an Egyptian who performs the duties of one’s position abroad but receives one’s income from an Egyptian treasury.”2 The Plaintiff having become a permanent resident of the United States, and State of New York since April 2019, is not a resident of the nation of Egypt pursuant to both Egyptian law, and the laws of the State of New York, even though she has a residence at her disposal located in Egypt. IV. Religious Divorce and Civil Divorce Egypt’s Islamic family law of divorce (pursuant to Shari’a Law) is established in five legislations: (1) the law of 1920; (2) the law of 1929; the law of 1979; (4) the law of 1985; and (5) the law of 2000. Procedurally under Islamic Law, a Muslim who wishes to divorce his wife is to ask for an arbitration meeting, arranged by elders of the couple so that a reconciliation may be reached. If such efforts fail and the man sincerely thinks he cannot live a harmonious life with his wife, he may divorce her either verbally or in writing — known as “Talaq.” The man is required to pay the dower amount in full to the woman. The wife does not have to be informed (Dissolution of Marriage (Divorce) under Islamic Law — Sheraz Khan Advocate — Legal Researchers (legal-researchers.com). This court has not been provided with any information as to whether all the protocol provided for under the Islamic Law was followed by the parties, and there has been no testimony to the contrary. It is not up to this court to determine whether such religious rules were followed. The sole question for this court is whether the Plaintiff wife was afforded notice and an opportunity to be heard in the matter, in the spirit of the norms of American jurisprudence, and as to that question, this court finds in the negative. This Court respects religious freedom. It is rooted in the foundational documents of our nation. The constitutional limitations on the Court’s ability to intervene on religious issues are deeply rooted in law and it is well established that the Court may not consider religious doctrine in rendering a decision (See e.g.: Presbyterian Church v. Hull Church, 393 US 440 [1969]; Serbian Orthodox Diocese v. Milivojevich, 426 US 696 [1976]; Jones v. Wolf, 443 US 595 [1979]). The Supreme Court has described the wall of separation between church and state that is mandated by the establishment clause of the first amendment as a ‘blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship (Lemon v. Kurtzman, 411 US 192 [1973]). This decision is neither an endorsement nor interdiction of any religious doctrine or foreign method of adjudication. V. Conclusion The facts reveal that the Plaintiff did not have notice as to the Egyptian Divorce, and therefore, from a practical standpoint, she was unable to participate in any process that may have existed at the time. Instead, she received a final judgment, delivered to her by a family member some days after the adjudication. Additionally, the Plaintiff wife has exhibited intent to be a permanent resident of the United States, and State of New York, and has satisfied the requirements of New York’s Domestic Relations Law for the purposes of jurisdiction. There are serious concerns as to whether the process undertaken by the Defendant husband in the Egyptian court, comports with the due process and equal protection requirements of this nation and state. It appears to this court that those treasured protections of notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding. Under these facts, and pursuant to the relevant case law, comity can not be granted to the Egyptian Certificate of Divorce, nor does it reach the standard to be granted comity as an in Rem divorce. Therefore, the matter must proceed ab initio, and the parties are to engage in discovery as provided for in this court’s Preliminary Conference Order issued on October 20, 2022. The matter is scheduled for a Compliance Conference on January 5, 2023, in person, at the courthouse. VI. Decretal Paragraphs Based upon the foregoing it is hereby: ORDERED, that Defendant’s motion seeking an order for the following relief: “that the Court (i) declare that the parties’ Egyptian Judgment of Divorce, dated February 9, 2022, precludes this Court from adjudication of this within matter under the laws of the State of New York and the principles of comity; (ii) pursuant to Civil Practice Law & Rules (“CPLR”) 3211(a)(2), (a)(5) and (a)(7) dismissing the underlying Complaint if this Court declares that the parties’ Egyptian Judgment of Divorce, dated February 9, 2022, is valid and recognized by the State of New York; and (iii) for any other and further relief which the Court deems just and proper”, is DENIED with prejudice; and it is further, ORDERED, that the matter proceed ab initio, and the parties are to engage in discovery as provided for in this court’s Preliminary Conference Order issued on October 20, 2022. The matter is scheduled for a Compliance Conference on January 5, 2023, in person, at the courthouse, and it is further, ORDERED, that any relief requested and not addressed in this Decision and Order is DENIED, and it is further, ORDERED that the Clerk shall enter judgment accordingly. This shall constitute a final Decision and Order as to Motion Sequence: #001. Dated: November 4, 2022
