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RECENT TEXAS CASES INVOLVING THE RECOGNITION OF FOREIGN DIVORCE

There has been a lot of talk in this country lately about recognition of same-sex marriage and same-sex divorce, but what about recognition of foreign divorces?  In the melting pot that is the United States of America, divorce from foreign countries and their applicability to Texas family law cases are becoming increasingly common issues that are being addressed by trial and appellate courts in the Lone Star State.

While Texas has routinely recognized divorce decrees from Mexico, Canada, and England, issues pertaining to the validity of marriage and divorce in South Asian countries have been more challenging and appear to be arising more frequently.  Texas is in the top five among states in the country with the largest South Asian populations.  Specifically, the Dallas metropolitan area is ranked in the top five among metropolitan areas in the United States with the largest Bhutanese, Nepali, Pakistani, and Sri Lankan populations, and Houston has the second largest Pakistani population in the United States.  See Snapshot of South Asian Demographics in United States

Two recent Texas cases involving Pakistani divorces are In re A.M., 418 S.W.3d 830 (Tex.App.–Dallas 2013, no pet. h.) and Ashfaq v. Ashfaq, No. 01-14-00329-CV (Tex.App.–Houston [1st Dist.] 2015).  In the former cases out of Dallas, In re A.M., Husband challenged the validity of his marriage to Wife and therefore the ability of the Court to grant a divorce by claiming that his Wife never divorced her first husband.  In an attempt to evidence a divorce from her first husband, Wife had admitted into evidence a document signed by her first husband that was issued by an Islamic mosque in England and which stated that Wife was totally emancipated from the matrimonial relationship with her first husband.  Wife also had admitted into evidence a Pakistani divorce decree stating that she and her first husband were divorced in accordance with Mohammedan law.  Husband, however, provided documentation from both the British and Pakistani governments showing no divorce between Wife and her first husband.  The trial court nonetheless denied Husband’s claim that his marriage to Wife was void, and the appellate court affirmed for the reason that Husband failed to overcome the strong presumption in the State of Texas that the marriage between current spouses (current Husband and current Wife) is valid.  Specifically, the appellate court explained that when two or more marriages of a person to different spouses are alleged, there is a strong presumption that the most recent marriage is valid against each marriage that precedes it, until one who asserts the validity of the previous marriages proves its validity.  The Court of Appeals elaborated that this presumption is one of the strongest known to law.

The more recent case out of Houston, Ashfaq v. Ashfaq, involves the recognition of a Pakistani Islamic divorce after it was challenged by Wife, who alleged that the recognition of such a divorce would be unconstitutional.  In this case, Husband and Wife were married in Pakistan in 2007.  In 2009, Husband divorced Wife under Pakistani law in Pakistan when he and Wife were visiting there at the time.  Husband was a dual US-Pakistani citizen, and Wife was a Pakistani citizen exclusively.  Under Pakistani law, a divorce can be granted whenever the parties are Pakistani citizens or residents irrespective of whether they also live in a different country. An Islamic divorce, known as a talaq, can be granted when a husband pronounces “I divorce you” to his wife three times.  As such, it could be argued that all a man has to do to effectuate a Pakistani Islamic divorce is travel to Pakistan with his wife and pronounce “I divorce you” three times, and the divorce has occurred.  See http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/30/texas-court-of-appeals-recognizes-pakistani-islamic-divorce/

Wife petitioned for divorce in Texas two years after the talaq in Pakistan occurred.  Wife argued that the Pakistani divorce should not have been recognized because it is denies due process of law and is fundamentally unfair.  Wife specifically claimed that the Pakistani divorce is fundamentally unfair because it discriminates against females and also provides women with inadequate settlements with respect to the division of property.  The trial court and the appellate court, however, denied Wife’s claims under the doctrine of comity and further reasoned that the same Pakistani Islamic divorce that Wife was challenging was sufficient for proving marital status to the U.S. State Department for immigration purposes.

Marriage and divorce involving foreign countries can be difficult issues.  If you, a relative, or a friend have further questions or need assistance in this regard, please be sure to contact an attorney at McClure Law Group, PC, 214-692-8200.