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by Gabriel Sawma
Saturday, Jun. 13, 2009 at 8:54 PM
Many Indian nationals had their marriages in India and domicile in the United States. They travel back to India for the purpose of obtaining divorce judgments according to the Hindu law. The issue of jurisdiction becomes important factor for the recognition of their foreign divorce judgments in the United States. This article analyzes this issue.
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In most circumstances, a judgment of divorce of a foreign national court has no independent force outside the forum’s territory. Thus courts will enforce their own judgments within their own national boundary.
As a general rule, a judgment of a court of one nation may be recognized and enforced in another nation if the courts of that nation are willing to accept the decree of the nation where the judgment was issued.
Recognition and enforcement of foreign judgments occur when a U.S. court relies upon foreign divorce ruling, on the ground that it has been previously litigated abroad. Thus recognition of foreign divorce judgments is akin to the domestic U.S. doctrines of res judicat (or claim preclusion, prevents parties of a claim from re-litigating the same claim), and collateral estoppel (or preclusion which extends the preclusive effort of a judgment to re-litigation of issues that were decided in a prior action.) The enforcement of foreign divorce judgment is typically sought by a plaintiff who has obtained a judgment in a foreign country.
In the United States, the judgments of one state’s court are routinely enforced in another state. Article IV, Sec. 1 of the U.S. Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other state.” Congress has implemented the full faith and credit clause by statutory enactment providing that judicial proceedings “shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.” (28 U.S.C. Sec. 1738. 1982).
The Doctrine of Comity
Presently, in the United States, there is no federal standard governing the enforcement of divorce judgments rendered by foreign courts. Unlike state judgments, foreign judgments are not covered by the full faith and credit clause of the U.S. Constitution and other statutes. Nor are there any federal statutes to enforce foreign divorce judgments in U.S. courts. The United States is not party to any international agreement regarding the mutual recognition of divorce judgments.
With the absence of a treaty or statute upon this subject, the duty rests upon the judicial tribunals to determine the rights of the parties in divorce suits brought before them. In doing this, the courts obtain such aid for their judicial decision, from the works of jurists, commentators and academic scholars, and from the acts of civilized nations. Thus U.S. courts may give recognition to the judgments of a foreign nation as a matter of “comity.”
The “doctrine of comity,” in the legal sense, is not an absolute obligation; it is a courtesy, where the court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary to the U.S. court
Indian nationals domiciled in the United States, initiate divorce in India. Many of them have dual US-Indian nationalities. They travel to India for the sole purpose of obtaining divorce judgments from Indian courts. Then they travel back to the United States and serve the other spouses with divorce papers. Do the U.S. courts extend comity and recognize the enforceability of those divorce judgments? Or do the U.S. courts assert their own jurisdiction on the divorce cases? The key concepts in this “conflict of law” in the United States are two: subject matter jurisdiction (or competence), and personal jurisdiction.
For a foreign court to have authority to adjudicate a dispute involving divorce, it must have jurisdiction over divorce issues. A divorce can be granted only in a court designated to hear matrimonial cases. It is well settled that U.S. courts will not enforce foreign judgments unless foreign courts possessed “competence” or subject matter jurisdiction under foreign law. Consequently, lack of subject matter jurisdiction is a basis for non-recognition.
Personal jurisdiction, known also as “personam” is the power of a court “to hear and determine a lawsuit involving a defendant by virtue of the defendant having some contact with the place where the court is located.” (See http://legal-dictionary.thefreedictionay.com/Personal-Jurisdiction). Personal jurisdiction is a basic pre-requisite for the enforcement of a foreign judgment. The foreign court issuing the judgment must possess personal jurisdiction and authority over persons within its territory. This includes: domiciliary, citizenship, place of marriage, etc.
U.S. courts generally, are able to decide divorce cases based on at least one of the spouses being domiciled or maintaining a habitual residence within the geographic jurisdiction of the court. Domicile is defined as physical presence and an intention to live permanently in a location. Such intentions are determined by where a person is registered to vote, filing state tax return, state issued driving license, which school the children go to, does he or she join a gym in the area of residence and where the home is located, etc.
Divorce cases involving multinational jurisdictions are complex. Foreign divorces may involve immigration matters, child custody, division of marital assets and support orders, which have their own specialized enforcement issues. In most cases attorneys and litigants consult with experts in foreign laws before determination.
Gabriel Sawma is Professor of Middle Constitutional Law, Islamic Shari’a, and Arabic. He is considered an authority on Private International Law involving foreign divorce issues, Islamic banking and finance. Admitted to the Lebanese Bar Association in 1970; Associate Member of the New York State Bar and American Bar Associations. Editor of International Law Website: http://www.gabrielsawma.blogspot.com
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