With the fascinating and interesting issues raised by the court in In Re Farraj (72 A.D.3d 1082), we decided to provide our readers with a succinct and clear explanation about the validity of a Muslim marriage conducted abroad and in the United States.
A foreign marriage occurs when a couple marries outside of the United States – regardless of whether or not either party is a U.S. citizen. Two simple examples:
(1) Bride and groom from Virginia decide to travel to Pakistan to get married;
(2) Egyptian bride and groom living in Egypt get married in Egypt and shortly thereafter immigrate to the U.S.
In these two scenarios, the law of the country where the marriage was performed governs the the validity of their marriage. Pakistani law governs in example (1) and Egyptian law governs in the second example. Some states, like New York, provide that the law of the marital domicile would govern the validity of a foreign marriage. In other words, assume that in examples (1) and (2) the married couple resided in New York for ten years. New York marital domicile law potentially would apply for purposes of the validity of the parties’ marriage. This approach highlights the public policy in New York that provides a presumption in the validity of marriages. In these examples, a Muslim marriage performed in accordance with the laws of the place of marriage is recognized and enforced in the U.S. However, this only applies to the marriage itself. As to the consequences of the marriage – custody, child support, martial property and alimony – the law of the marital residence governs. So in example (2) with the couple that married in Egypt, immigrated to the U.S. and resided in the U.S. for several years before filing for divorce, the law of their state of residence would govern all of the consequences of the marriage – custody, alimony and equitable distribution.
In the majority of states, to be valid, a marriage requires a couple to obtain a marriage license from the state and then take that marriage license to a person authorized to solemnize marriages. American law authorizes certain government officials, such as mayors and judges, and most religious officials, to solemnize marriages. The majority of Americans choose to have their religious official solemnize their marriage.
What are the legal consequences if you only marry religiously without obtaining a marriage license as required under the law?
The answer depends on the state you live in. There are three approaches to this issue:
Approach 1: common law marriage
Some states still recognize common law marriages, though most states have abolished common law marriage. While the elements of a common law marriage differ amongst the twelve or so states that recognize it*, most of those States require three basic elements: (1) intent to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Therefore, if a Muslim couple, with a religious marriage contracted in the U.S., reside in a state that recognizes common law marriage, their religious marriage is likely to be valid. Why? Because the Muslim marriage contract demonstrates an intent to be married, an intent to live together and the public know the couple to be husband and wife. In this case, the wife’s marital rights would be protected under state law (alimony, equitable distribution/community property, child support).
*The following states continue to recognize common law marriages: Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, New Mexico, Rhode Island, South Carolina, Texas, Utah.
The other states take one of two approaches – the marriage is void (New Jersey) or the marriage is voidable (New York):
Approach 2: marriage is void
The void states, like New Jersey, say that if you fail to obtain a marriage license, then your marriage is void; therefore, no rights or privileges arise therefrom. This means a wife would not be entitled to alimony or to a share in marital assets. Furthermore, if the husband dies – naturally or because of a third party’s negligence, the wife in these circumstances would neither inherit nor be able to sue on behalf of her husband. Of course, children are entitled to child support whether the marriage is valid or not. Some states allow a legal action called palimony. In an action for palimony, the party asserting the claim must prove to the court that his or her partner promised to take care of him or her for life. The parties moved in together, worked together and then the party promising to care for the claimant decides to pick up and leave. In this case, the court would award the injured party damages for the breach of the promise to take care of the partner for life. These cases are very difficult to win and some states now require that such promises be in writing.
Approach 3: marriage is voidable
On the other hand, the voidable states, like New York, provide that a marriage without a marriage license would render the marriage voidable. If you prove to the court that a person authorized to solemnize your marriage performed the solemnization, the court is willing to recognize the marriage being valid and effective as of the date of solemnization. In this case, the law protects the palimony claimant’s rights arising out of his or her voidable marriage.
The best practice is to follow local law and obtain a marriage license before you go to your Imam to solemnize your marriage. This is the most sensible route to protect your rights and to protect the validity of your marriage.