From Ali v. Osman, decided yesterday by the N.D. Supreme Court, in an opinion by Chief Justice Lisa Fair McEvers:
Ali and Osman married in 2001 in Sudan. Both parties are dual citizens of the United States and Sudan. The parties are the parents of five children—three of whom were minors at the time of trial….
In July 2024, Ali commenced this action seeking a divorce from Osman. In October 2024, Osman moved to dismiss the divorce action, disputing that he and Ali were still married at the time of the action. Osman asserted they were no longer married because he had obtained a divorce certificate in Sudan on December 11, 2022….
The [trial] court found that, unbeknownst to Ali, Osman pronounced talaq three times prior to December 11, 2022; and on or about December 11, 2022, Osman obtained the certificate of divorce from Ali in Sudan based on his pronouncement of talaq. {The district court found: “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.”}
The court found that when he obtained the divorce certificate, neither Osman nor Ali lived in Sudan, but rather they lived in the UAE at the time, which had been their residence since 2015. The court found Ali was not present when Osman obtained the divorce certificate. Ali first learned of the divorce proceeding when Osman emailed a copy of the divorce certificate on December 19, 2022….
The district court denied Osman’s motion to dismiss, declining to exercise comity to recognize and enforce the divorce certificate. In so doing, the court specifically found public policy concerns and a lack of due process: Osman obtained the divorce certificate in Sudan when neither party resided in the country; Osman unilaterally obtained the certificate, declaring talaq outside of Ali’s presence; Ali was not given notice Osman was pronouncing talaq or seeking the certificate in Sudan; Ali did not receive a copy of the certificate until Osman emailed it to her days later; and Ali was not provided the basic rudiments of due process for the divorce proceedings….
The court found, “Even though [Ali] was aware that her religion allowed [Osman], as her husband, to unilaterally initiate a divorce, she did not have any due process related to the Divorce Certificate, including any opportunity to be heard.” The court further found that “even if the parties acknowledged the divorce after [Osman] obtained the Divorce Certificate and abided by their cultural and religious norms, proper due process safeguards did not exist with the issuance of the Divorce Certificate.”
Other courts have declined to grant comity in similar situations. See Aleem v. Aleem (Md. 2008) (holding divorce husband obtained under Islamic religious law and secular Pakistani law by performing talaq would not be afforded comity in Maryland); In re Ramadan (N.H. 2006) (holding principles of comity did not require trial court to defer to Lebanese divorce decree and public policy considerations supported the trial court’s decision to retain subject matter jurisdiction); Tarikonda v. Pinjari (Mich. Ct. App. 2009) (holding wife was denied due process in the Indian divorce arising from husband’s pronouncement of the triple talaq, and the trial court erred by recognizing the Indian divorce and dismissing wife’s divorce complaint); DAB v. MAS (N.Y. trial Ct. 2022) (holding trial court would not extend comity to uphold the validity of an Egyptian divorce judgment based on serious concerns about whether the process undertaken by husband in the Egyptian court comported with due process and equal protection requirements, there was no proof wife was served with process, and wife was not a resident of Egypt but rather a permanent United States resident). Further, one court has held that a trial court did not abuse its discretion in declining to extend comity to a Sudanese divorce certificate…. Mustafa v. Elfadli (Ohio Ct. App. 2013) ….
On this record, the district court made findings of fact and articulated its specific due process and public policy reasons for not granting comity to the foreign divorce certificate. The district court did not act in an arbitrary, unreasonable, or unconscionable manner; did not misinterpret or misapply the law; and its decision is the product of a rational mental process leading to a reasoned determination. We therefore conclude the court did not abuse its discretion by declining to recognize and enforce the Sudanese divorce certificate ….
Logan J. Meyer represents Ali.
