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         THE COMMONWEALTH OF MASSACHUSETTS

        PROBATE AND FAMILY COURT DEPARTMENT

                            SUFFOLK DIVISION

                                                       

DOCKET NOS. SU12D1453 & SU12E0052Q6

Memorandum of Decision and Order on the Issues of


Validity of the Parties' Egyptian Divorce and

Whether this Court will Grant Comity thereto

On Plaintiff’s Complaint for Divorce filed on June 15, 2012; and,

Plaintiff’s Motion to Amend Complaint for Divorce filed on April 9, 2014.

This matter came on for three days of trial on: April 4, 9 and 16, 2014 before the Suffolk Probate and Family Court.

Inas Nagui Bassiouni (hereinafter "Wife") appeared and was represented by Attorneys Gerald L. Nissenbaum and Wendy O. Hickey.

 

M. Reada Bassiouni (hereinafter "Husband") appeared and was represented by Attorneys Regina M. Hurley and Keith E. Glidden.

Both Parties testified. The Court also heard testimony from additional live witnesses. Video-taped depositions of additional witnesses were entered as agreed upon exhibits at trial. Parties also submitted a Stipulation of Uncontested Facts (Ex 20). Twenty-eight (28) total exhibits were entered into evidence at trial. The primary issues for this stage of the trial were whether or not the Parties were validly divorced in Egypt on May 10, 2012; and, if the Patties were validly divorced in Egypt on or about May 10, 2012, whether or not this Court will grant comity to that divorce. By agreement, the Parties submitted their closing statements in writing when they submitted their proposed findings, in lieu of presenting their arguments verbally at the close of trial.

After trial, and in consideration of the credible evidence and all reasonable inferences drawn therefrom, the Court hereby enters the following:

RELEVANT PROCEDURAL HISTORY [1]

l . On June 15, 2012 Wife filed a Complaint for Divorce against Husband in the Suffolk Division of the Massachusetts Probate and Family Court alleging that the Parties' marriage had become irretrievably broken as of May 10, 2012.

2.                  Also on June 15, 2012, Wife filed in this Court a Verified Complaint for Equitable Relief seeking a division of assets if the divorce were dismissed.

3.                  On August 21, 2012, in both actions, Husband filed a Motion to Stay All Proceedings Except as They Relate to Jurisdiction. The Motion was accompanied by a Memorandum in support thereof and an Affidavit of Egyptian Attorney Ashraf Nadou1Y.

4.                  A motion hearing was held on August 28, 2012 before the Court (Moriarty, J.). During that hearing, the Court was notified by Husband's counsel that there was an action pending in Egypt to confirm the validity of the talaq divorce and to determine Wife's economic rights. At Husband's request, this Court continued this action in order to await the decision from the Egyptian court.

5.                  On September 11, 2012, Wife filed a Motion to Declare Husband's Special Appearance a General Appearance and for other relief. Husband filed an Opposition thereto on same date. The Court orally denied the motion at hearing on October 24, 2012.

6.                  On October 16, 2012, Wife filed an Omnibus Motion for Relief. Wife's Motion sought inter alia:

a.                   An attachment of Husband's Massachusetts real estate in the equity action;

b.                  An order that Husband not sell or encumber his New York real estate.

7.                  On October 18, 2012, the Court (Moriarty, J.) issued a Memorandum of Decision and Order on Husband's Motion to Stay. The Court's Memorandum of Decision and Order stayed all proceedings except as they related to jurisdiction, and required the Parties to

both appear at a status conference scheduled for October 29, 2012. The Parties were to bring with them certified English translations of any and all orders or judgments issued by the Egyptian Court as a result of a hearing scheduled to take place in Egypt on October 17, 2012.

8.                  The Egyptian Court date was postponed. As a result, on October 22, 2012, Husband filed a Motion to continue the status conference scheduled for October 29, 2012 until after the new Egyptian Court date of December 12, 2012. On October 23, 2012, Wife filed an Opposition to Husband's Motion to Continue.

9.                  On October 24, 2012, the Court (Moriarty, J.) held a hearing on Husband's Motion to

Continue. At that hearing, the Court orally denied Wife's Motion to declare Husband's Special Appearance as a General Appearance. Following that hearing, the Court (Moriarty, J.) issued a Temporary Order which provided inter alia that:

a.                   Wife's Omnibus Motion was scheduled for hearing on January 23, 2013;

b.                  The Stay was modified to permit discovery as it related to jurisdiction; and,

C.         Wife's Motion for Temporary Alimony was scheduled for hearing on November 16, 2012.

10.              On November 15, 2012, Husband filed a Verified Opposition to Wife's Motion for Temporary Support.

l l .      On November 16, 2012, a hearing was held before the Court (Moriarty, J.) on the issue of temporary support.

12.              On December 3, 2012, the Court (Moriarty, J.) issued a Temporary Order which:

a.                   Required Husband to pay temporary support to Wife in the amount of $27,000.00 per month due on the first day of each month. The Court's Order included $78,000.00 in retroactive support (after taking into account $30,000.00 in funds that Husband had unilaterally transferred to Wife's bank account in Egypt).

13.              On December 12, 2012, Wife filed a Complaint for Civil Contempt. Wife's Complaint alleged that Husband had violated the Court's December 3, 2012 Temporary Order by failing to make the first temporary support payment to Wife. Contempt was set for hearing on February 12,2013.

14.              On December 13, 2012, Husband filed a Verified Motion for Reconsideration/Relief from Order dated December 3, 2012 Pursuant to Mass. R. Dom. Rel. P. 60(b).

15.              On December 20, 2012, Wife filed an Opposition to Husband's Rule 60(b) Motion.

16.              On December 31, 2012, the Court DENIED Husband's Motion for Reconsideration.

17.              On January 15, 2013, in the equity action, Wife filed a Verified Rule 56 Motion for Partial Summary Judgment with Exhibits and a supporting memorandum of Husband's counsel.

18.              On January 22, 2013, Wife filed a Memorandum in Support of Motion for Omnibus Relief and in Opposition to Continuing or Renewing Stay.

19.              On January 23, 2013, Husband filed:

a.                   An Ex Parte Motion to Continue January 23, 2013 hearing date on Wife's

Summary Judgment Motion, to Strike, for Monetary Sanctions and Such Other

Relief as the Court Determines (including Requiring Wife to Comply with

Probate and Family Court Rule 27C Summary Judgment Procedure); and,

b.                  An Index of three purported Affidavits of Accuracy written in Egypt. These Affidavits related to the validity of the Parties' May 10, 2012 Divorce.

20.              Also on January 23, 2013, the Court (Moriarty, J.) held a hearing at which a number of issues were heard, including the contents of Wife's Omnibus Motion.

21.              On January 30, 2013, Wife filed a Rule 78 Motion to Supplement the Record Re (1) Status of Egyptian Civil Court Judgment, and (2) Correct Husband's Material Misrepresentation of Fact Concerning the Patties' Religious Marriage.

22.              On February 7, 2013, the Court (Moriarty, J.) entered an Order which provided that:

a.                   Wife's Verified Rule 56 Motion for Partial Summary Judgment failed to comply with the requirements of Supplemental Rule 27C of the Probate Court;

b.                  Wife has fourteen (14) days to submit to the Court and serve upon Husband a

Motion for Summary Judgment that complies with Supplemental Rule 27C of the

Probate and Family Court;

c.                   Husband has twenty-one (21) days after service of Wife's Motion for Summary Judgment in conformity with the rule to serve an Opposition thereto;

d.                  Husband's attorney is granted leave to file a Motion for fees, and an Affidavit is support thereof, for any fees incurred in connection with Wife's Motion for Partial Summary Judgment filed on January 15, 2013; and,

e.                   The Court takes no action on Defendant's request for sanctions at this time.

23.              Also on February 7, 2013, the Court (Moriarty, J.) entered a Further Order which provided inter alia that:

a.                   '[Husband's] Motion to Strike and for Monetary Sanctions is DENIED except that [Husband] may file an affidavit for [his] fees in connection with opposing the Motion for Partial Summary Judgment which the Court determined was not filed in accordance with Rule 27 of Supplemental Rules of Probate Court." and

b.                  Attachment of Husband's Massachusetts real estate was allowed in the amount of Three million dollars.

24.              On February 12, 2013, the Court held a hearing on Wife's Complaint for Contempt.

25.              On February 13, 2013, the Court (Moriarty, J.):

a.                   Issued a Judgment on Wife's December 12, 2012 Complaint for Contempt. The Court found that Husband did not willfully violate the Court's December 3, 2012 Order and that all alimony has now been paid. Husband was further ordered to pay all alimony by the first of each month by direct deposit to Wife's Bank of America account. Husband was also ordered to pay $1,000.00 toward Wife's legal fees, to be paid within 90 days.

 

b.                  Issued a Further Order which provided that:

i.  "Any Motions to Strike (including one Wife seeks to file); a Motion in Limine, Wife's Motion for Partial Summary Judgment and two Motions  of Husband to Dismiss shall be heard MAY 22, 2013 at 9:30 a.m. (No other matters are currently pending)." ii.   "NO FURTHER CONTEMPTS OR MOTIONS MAY BE SCHEDULED WITHOUT WRITTEN ORDER OF COURT." (Emphasis in original).

 

26.              On March 18, 2013, Husband filed a Motion to Terminate Alimony. Wife filed an Opposition thereto.

27.              On March 22, 2013, Wife filed a Motion for Relief Permitted Under Probate Court Supplemental Rule 27C. Husband filed an Opposition thereto on March 26, 2013.

28.              On March 29, 2013, Wife filed an "Overview" in response to the Court's request that the Parties try to reach a stipulation of agreed facts.

29.              On April l, 2013, Husband filed a Statement of Uncontested Material Facts.

30.              On April 26, 2013, Husband withdrew his March 18, 2013 Motion for Termination of

Alimony and filed an Amended Motion to Terminate Alimony. Husband's Amended Motion requested inter alia that the Court order Wife to return to Egypt to participate in the second action that Husband had filed against Wife in Egypt.

31.              On May 2, 2013, Wife filed an Opposition and Motion to Strike Husband's Amended Motion to Terminate Alimony.

32.              On May 10, 2013, Husband filed a Motion for Attorney's Fees and Costs in the equity action regarding Wife's Motion for Summary Judgment and a Motion to reinstate Stay of all proceedings and to vacate all financial orders.

33.              Also on May 16, 2013, Attorney Hickey filed an Affidavit Demonstrating that the Motion for Summary Judgment Was Filed in Good Faith. Attorney Hickey's Motion was accompanied by an Opposition and Memorandum in Opposition to Husband's Motion for Attorney's fees and Costs.

34.              On July 8, 2013, Husband filed a Verified Motion to Reduce Support to Account for his Retirement and to Impute Income to Wife.

35.              On July 12, 2013, the Court (Moriarty, J.) entered an Order which provided that:

a.                   Husband's July 8, 2013 Motion to Reduce Support would be determined on written submissions with time for Wife to reply and time for Husband to further reply; and,

b.                  Husband's Motion for Attorney's Fees and Costs in the equity action regarding the Motion for Summary Judgment was deferred until trial on the issue of jurisdiction.

36.              On July 26, 2013, Wife filed a Verified Opposition to Husband's Verified Motion to Reduce Support. Husband filed a Verified Response to Wife's Opposition on August 5, 2013.

37.              On August 7, 2013, Wife filed her Second Complaint for Civil Contempt alleging that Husband:

a.                   Failed to timely make his full August 1, 2013 alimony payment;

b.                  Failed to make his alimony payments by direct deposit to Wife's Bank of America

Account; and,

            C.        Failed to pay the legal fees ordered in the Court's February 13, 2013 Order

38.              On or about August 9, 2013, the Parties agreed to have Attorney James R. DeGiacomo serve as Discovery Master in this case. Attorney DeGiacomo was physically in attendance at the video conference depositions taken in connection with these proceedings. Attorney DeGiacomo made contemporaneous rulings on each and every objection raised during the video conference depositions. The Court does not overrule Attorney DeGiacomo's rulings. On Sept 12, 2013 the Court adopted the Discovery Master's report as an order on joint motion of the parties.

39.              On or about December 17, 2013, Wife filed a Motion to Lift the Stay on Financial Discovery. On March 14, 2014, this Motion was DENIED by the Court (Moriarty, J.) pending hearing on the jurisdictional issue in April 2014.

40.              Also on or about December 17, 2013, Wife filed a Motion to prevent Attorney Abed Awad (an expert being offered by Husband) From Testifying at Trial. Husband filed an

Opposition thereto on March 4, 2014. Wife's Motion was DENIED by the Court (Moriarty, J.) on March 10, 2014. Wife's counsel was granted one hour to voir dire Attorney Awad on March 27, 2014 at 10 a.m..

41.              On March 10, 2014, the Court (Moriarty, J.) IMPOUNDED Wife's Motion to Exclude Attorney Awad sua sponte pending trial after consideration of the submission.

42.              On March 25, 2014, Husband filed a Motion to Exclude from Evidence the Sworn Declaration of Marwa Omara. After hearing, Husband's Motion was ALLOWED by the Court (Moriarty, J.) on March 28, 2014.

43.              On March 10, 2014 after status conference the Court ruled the burden of proof would be on Wife to show lack of personal and/or subject matter jurisdiction to establish a valid Egyptian divorce. Assuming the divorce was valid, Husband would bear the burden of showing the Court should extend comity.

44.              Also on March 25, 2014, Husband filed a Motion in Limine to Exclude Any Evidence

Regarding the First Revocable Divorce and the Recall to the Marriage. Wife filed an Opposition thereto on March 26, 2014. After hearing, Husband's Motion was ALLOWED by the court (Moriafty, J.) on March, 28, 2014.

45.              On March 26, 2014, Wife filed a Motion in Limine Regarding Parol Evidence and Travel on and After June 15, 2012. Paragraph 1.1 of Wife's Motion requested that the Court enter an order preventing Husband from offering any parol evidence at trial that would add clauses to, modify, or change the specific terms contained within the Parties written marriage contract in its present form. Paragraph 1.2 of Wife's Motion requested that the Court order that the Parties' travel and other activity on and after the end of June 2012 are not relevant to the issues to be tried on April 4 and 9, 2014.

46.              After hearing on March 28, 2014, the Court (Moriarty, J.) ordered inter alia that "[relief sought in par 1.1 is deferred to trial. Relief sought in par 1.2 is Allowed."

47.              On April 1, 2014, Husband filed a Motion to Determine Sufficiency of Answers and

Objections, to Strike Plaintiff's Responses to Request for Admissions, to Deem the

Requests Admitted, or for related relief and Sanctions Due to Bad Faith. Wife filed an Opposition thereto on April 9, 2014. This Motion has not been formally ruled on by the Court.

48.              On April 9, 2014, Wife filed a Motion to Amend Complaint for Divorce. Wife's Motion requested that the Court allow her to: change the date of the breakdown of the Parties'

marriage from May 10, 2012 to before April 30, 2012; and, add the additional ground of cruel and abusive treatment to her Complaint.

49.              On April 16, 2014, Husband filed an Opposition to Wife's Motion to Amend her

Complaint for Divorce. Wife filed a Response to Wife's Opposition on May 30, 2014.

Relying on Mass. R. Dom. Rel. P. 15 for the proposition that Wife may amend her

Complaint as a matter of course because Husband has yet to file an Answer to Wife's

Complaint. Wife's Response further argues that because trial on the merits of Wife's Complaint has not been scheduled, the Motion to Amend was not filed at a late stage of trial, and Husband would not be prejudiced if the Court allowed Wife's Motion.

50.              On June 6, 2014, the Court received Husband's Motion for Legal Fees Incurred in

Connection With Wife Serving Excessive Requests for Admissions for the Purpose of

Harassment, to Impede Husband's Ability to Prepare for Trial and to Increase the Cost of

Husband's Legal Fees. This Motion was accompanied by a Motion for Fees and Costs Incurred in Responding to Wife's Bad Faith Service of Excessive Requests for Admissions.

51.              On same date, the Court received Husband's Motion to Strike or Redact the Docket to

Permanently Impound Wife's Motion (and Related Documents) to Prevent Defendant's Expert from Testifying. This Motion was accompanied by a Motion for Attorneys Fees and Costs for Wife's Bad Faith Filing of Motion to Prevent Defendant's Expert from Testifying at Trial and Making Unfounded, False and Scurrilous Accusations.

52.              On June 17, 2014, the Court received Husband's Request for Hearings on his Post-Trial Motions. Husband was not granted leave to file the post-trial Motions received by the Court on June 6, 2014. Wife has not responded to these Motions, and the Court has not marked them for hearing.

FINDINGS OF FACT

Background Facts

53.              Wife was born on January 5, 1959 in Alexandria, Egypt. Wife was fifty-five (55) years of age at the time of trial and in good health.

54.              Wife is fluent in three languages. She has an undergraduate degree in chemical engineering and has also completed some interior design course work at Boston Architecture College.

55.              Husband was born on February 28, 1947 in Alexandria, Egypt. Husband was sixty-seven

(67) years of age at the time of trial.

56.              Husband has a Ph.D. in Acoustical Engineering from Syracuse University. Husband worked at Avco Research Lab and the firm of Stone & Webster before starting his own acoustical engineering company in 1981.

57.              Husband's business is called Acoustic Technology, Inc. (hereinafter "ATI"). ATI provides mass notification systems for the military and for school systems. In the event of emergencies, such as the "active shooting" that occurred at Fort Hood, Husband's company provides the system which is activated and alerts people on and off the base. Much of ATI's work is done under government contracts.

58.              At all times material hereto, ATI has been based in Boston, Massachusetts. Husband also does some work for ATI in New York and Cairo.

59.              Husband has been residing primarily in Boston, Massachusetts since approximately 1983.

60.              The Panties were married on December 20, 2001 in Cairo, Egypt at the home of Wife's parents.

61.              Prior to the Parties' marriage, Wife resided in Egypt. Following the Patties' honeymoon, Wife began residing in Massachusetts in a home that Husband had owned prior to the marriage. The marriage and resulting move to the United States represented a significant lifestyle change for the wife.

62.              This was Wife's second marriage. Wife married and divorced her first husband in Egypt. Both Wife's first marriage and first divorce were governed by Egyptian law. Wife has two children from her previous marriage, both of whom were adults at the time of trial.

63.              Wife was forty-two (42) years old at the time of the Parties' marriage.

64.              All of Wife's close relatives were residing in Egypt at the time of trial.

65.              This was Husband's third marriage. Husband entered into pre-nuptial agreements for each of his first two marriages. Husband has three children from his previous marriages, all of whom were adults at the time of trial.

66.              Husband was fifty-four (54) years old at the time of the Parties' marriage.

67.              There were no children born of the Parties' marriage.

68.              At all relevant times, both Husband and Wife have been Egyptian nationals and Citizens of Egypt. Husband and Wife each have:

a.                  Egyptian identity cards;

b.                  Egyptian passports;

c.                  Egyptian National ID numbers; and,

             d.         United States passports.

69.              Husband and Wife are each registered to vote in Massachusetts. Wife has an Egyptian and Massachusetts drivers license (ex 20 at 4). Husband has a Massachusetts drivers license.

70.              Husband obtained his United States citizenship prior to the Parties' marriage. Wife obtained a green card, and later, United States citizenship on February 1 5, 2007 through her status as Husband's spouse. Wife presented evidence of her 1996 divorce in Egypt to the United States Department of Immigration and Naturalization as evidence that she had been validly divorced from her first marriage in Egypt.

71.              At all relevant times, both Husband and Wife have been Muslims.

72.              At the time of trial, Husband was residing at 22 Union Wharf, Boston, Massachusetts, a condo he purchased about 1983.

73.              At the time of trial, Wife was residing at 22 Garrison Street, Apt, 50-46 in Boston, Massachusetts.

Structure and Sources of Egyptian Law and Procedure Relating to Marriage and Divorce

74.              Egyptian civil marriages and divorces are governed by:

a.                   The Egyptian Civil Code, which is modeled after the French Civil Code;

b.                  Statutes pertaining to family law;

c.                   The Egyptian Code of Civil Procedure; and,

d.                  The Ma'zoun Act.

75.              Articles 12, 13 and 14 of the Egyptian Civil Code determine which country's law governs marriages, marriage contracts and divorces in Egypt.

76.              Based on the Court's understanding of Article 14 of the Egyptian Civil Code, because both Parties were Egyptian at the time of the conclusion of the marriage, Egypt would

apply Egyptian law to any analysis of the Parties' marriage or their divorce. [2]

77.              If there is no express clause that would apply to a certain issue in the family code or the civil code, then an Egyptian judge would rely on general principles of equity and fairness originating from Islamic jurisprudence and French Court of Cassation cases.

78.              In Egypt, each of the three major religious communities (Judaism, Christianity and Islam) has its own set of substantive family law statutes. Each religious communities marriage is recognized civilly in Egypt.

79.              For purposes of this case, the focus is solely on Egyptian laws pertaining to the marriage and divorce of Muslims.

80.              A Ma'zoun is an Egyptian civil clerk vested by the Egyptian Legislature with quasigovernmental authority under the "Ma'zoun Act."

81.              A Ma'zoun plays a role in both the civil marriages and civil divorces of Egyptian

Muslims which take place within the jurisdiction to which the Ma'zoun is appointed.

82.              A Ma'zoun acts as a scrivener and also confirms the information necessary for marriage and divorce. Based on the information provided by the parties to a marriage or a divorce, a Ma'zoun completes the governmental forms required for civil recognition of marriages and divorce. A Ma'zoun then registers the marriage or divorce with the Egyptian Office of Personal Status (comparable to a registry of vital statistics).

83.              A Ma'zoun is not a judge or judicial officer.

84.              A Ma'zoun has no authority to determine the financial rights of the parties to a divorce.

Egyptian Islamic Marriages Generally

85.              An Egyptian Islamic marriage requires an offer from a man, and an acceptance from a woman in the presence of witnesses. The witnesses can either be two men or two women and one man.

86.              An Egyptian Islamic marriage also requires a marriage contract. The contract must be signed by both the husband and the wife.

87.              For an Egyptian Islamic marriage to also be recognized as a valid civil marriage, there are additional requirements. The Ma'zoun for the appropriate district must verify the identities of the parties and the witnesses, fill out the form marriage contract and register the signed and completed marriage contract with the Egyptian Office of Personal Status.

88.              A marriage contract memorialized and properly registered by a Ma'zoun is also treated as a valid civil contract under Egyptian law.

89.              Every Egyptian Islamic marriage contract has a provision for a mahr. A mahr is a payment similar to a dower. A 'mahr is comprised of two components: a present or advanced mahr; and, a deferred 'mahr".

90.              If the provision is not expressly included in a marriage contract, it is implied by law.

91.              If the parties do not agree on a specified amount for the mahr, it is determined through a fact-finding hearing held by the Egyptian court.

92.              A wife can refuse to execute the marriage contract or consummate the marriage until the advanced mahr is paid. Because of this, there is usually a nominal payment of the advanced 'nah" (e.g., a gold coin, an Egyptian pound) at the time of the marriage.

93.              In addition to the nominal payment, the advanced mahr typically includes the exchange of gifts or the purchase of jewelry or homes.

94.              For privacy reasons, it is customary for the parties to an Egyptian marriage to not record the specific amount of the advanced mahr in the marriage contract. In this instance, the marriage contract would include language such as "the parties acknowledge receipt of the advanced amount."

95.              It is also common for parties to not specify the amount of the deferred mahr in the marriage contract or to agree to determine the amount at the conclusion of the marriage.

96.              The choice to exclude specific amounts for the advanced and deferred mahr has no impact on the validity of the marriage contract under Egyptian law.

97.              An Egyptian marriage contract has a section for special conditions. The parties to a marriage can freely negotiate the terms of any special conditions so long as any given special condition does not violate Sharia law and is not contrary to Egyptian public policy.3

98.              In an Egyptian Islamic marriage, a husband has the financial obligation to maintain and support his wife and provide her with food, shelter and clothing. This obligation is expressly provided for under Article one of the Egyptian Family Code. There is no comparable requirement that a wife provide her husband with support.

99.              Egypt has a title-driven separate property regime for married persons. Both spouses retain ownership of the property titled in his or her individual name whether that property was acquired prior to or during the marriage. A spouse does not attain either legal or equitable ownership of the other spouse's property simply by virtue of their marriage to the title owner.

Egyptian Islamic Divorces Generally

100.         Under Egyptian Law, there are three primal)' ways to dissolve an Islamic marriage: (l) talaq; (2) khlu; and, (3) shiqaq (or tafi•ig).

101.         A shiqaq or tafrig divorce is a divorce based on grounds. A shiqaq or tafrig divorce requires judicial procedure and is initiated by filing a complaint in the Egyptian courts. A wife could file for shiqaq or tafrig if she requested a divorce from her husband and her husband refused to grant her the divorce.

102.         A talaq divorce is a unilateral dissolution of a marriage without cause. A talaq divorce is the most common type of divorce in Egypt.

103.         A khlu divorce is a consensual mutual dissolution of marriage.

104.         Both talaq and khlu divorces are nonjudicial. For both of these types of divorces, a Ma'zoun: confirms the parties' identities, addresses, family information and information related to prior marriages; memorializes the repudiation of the marriage; completes the

3The Parties' respective expert in Egyptian law gave contrary testimony as to those special conditions which would be permissible and those which would not be. Husband's expert testified that a special condition could be included whereby Wife would have the right to pronounce talaq. Wife's expert testified that a such a special condition would not be permitted} nor would a condition granting Wife advanced notice of Husband's talaq.

forms required to register the divorce with the Office of Personal Status; and, registers the divorce with the Office of Personal Status in the appropriate jurisdiction.

105.         For a talaq divorce, dissolution of the marriage occurs upon repudiation of the marriage by the husband.

106.         A wife cannot pronounce a talaq divorce. The right of talaq is exclusive to a husband. Husband's expert testified wife could write into the special provisions section of the marriage contract asking for the right to perform talaq. Wife's expert testified that the special provisions section of the marriage contract cannot violate public policy and could not put specific conditions for notice of divorce as that would violate Sharia law and not be enforceable.

107.         A wife is not entitled to prior notice of a talaq divorce. She receives no notice until the divorce is registered in the Office of Personal Status.

108.         A wife cannot object to a talaq divorce.

109.         A talaq divorce becomes effective, and is civilly recognized, at the time that it is registered with the Egyptian Office of Personal Status.

110.         In the case of a talaq divorce, after the Ma'zoun registers the divorce in the Office of Personal Status, he arranges for the Wife to receive notification of the divorce.

1 1 1.   Service and notice of a talaq divorce to a wife triggers the due date of a husband's obligations under the marriage contract. Likewise, notice of the divorce allows a wife to make a demand for her economic rights that flow from the dissolution of the marriage.

112.         A talaq divorce is revocable until the expiration of the three-month waiting period, called idaa. Commencement of the idaa is triggered by service and notice to the wife. If the parties do not reconcile during the idaa waiting period the (alaq divorce becomes irrevocable nunc pro lunc to the date of husband's repudiation of the marriage.

113.         A husband is entitled to divorce his wife by talaq three times. The first two are revocable as detailed above. A third talaq divorce is irrevocable.

114.         A talaq divorce triggers a wife's financial rights and her husband has no defense against a wife's claim to enforce these rights as Husband without cause has the right to dissolve the marriage. Neither party has a claim for allocation of the other's separate property.

115.     A wife' payment of support during the idaa three month waiting period (this is called the nafaqat al-adda); (2) the deferred mahr; (3) a compensation payment for a unilateral divorce (this is called a nauta); and, (4) retention of all her separate property, and income and bank accounts however and whenever acquired, Gifts from the Husband to Wife during the marriage remain her separate property,

116   The nafaqat al-adda is three months of status quo maintenance based on the lifestyle and financial status of the parties.

117.         Payment of the muta for a talaq divorce has a minimum duration of two years and may continue for a period equivalent to the length of the marriage. The amount of the inula is determined by the Egyptian court based on the duration of the marriage and the socioeconomic and financial status of the parties.

118.         Payment of the deferred mahr is determined by the marriage contract. If not specified in the marriage contract, the husband and wife attempt to negotiate an amount. If the parties are unable to agree upon an amount for the deferred mahr, then the Egyptian court can determine the deferred mahr. The Egyptian court will consider the socioeconomic status of the patties, the marital lifestyle, the wife's station in life, wife's age, her financial circumstances and her social class.

119.         There is no time limit on when a wife can go to court to seek her deferred mahr.

120.         A talaq divorce is recognized civilly in Egypt without a Court issuing a judgment.

121.         A talaq divorce can be advantageous to an Egyptian Muslim wife where the parties are highly educated, wealthy persons with property and/or income of their own. This is because a wife retains all of the gifts she received from her husband during the marriage, all of her income and all of her separate property free from any claim from her husband. A husband on the other hand, is obligated to pay the support detailed above to wife from his separate property and income.

122.         Husband's expert testified that if a judgment issued from a Massachusetts court, and that judgment violated Egyptian public policy, then Egypt would not grant comity to that Massachusetts judgment,

The Parties' Marriage, Marriage Contract and Wedding in this Case

123.         At the beginning of August in 2001, several months after the Parties' met, Husband met Wife's father (hereinafter "Mr. Nagui") for the first time. The purpose of the meeting

was for Husband to ask Mr. Nagui for permission to many Wife.

124.         Husband contends wife insisted on a Sharia marriage (her first marriage was under Sharia law). Husband testified they discussed generally having a pre nuptial agreement which Wife denies.. According to Wife's testimony they did not discuss a pre nup when she raised financial concerns as she was leaving her job and moving to Boston. She asserts Husband assured her she would have a one half interest in his property. I do not credit Wife's testimony as to this comment.

125.         Neither party strictly adhered to Muslim religious practices.

126.         In October of 2001, there were further discussions between Husband and Mr. Nagui regarding the terms of the Parties' marriage. It was Husband's understanding that Egyptian tradition required that he and Mr. Nagui arrive at an agreement prior to the marriage. Mr. Nagui was negotiating on Wife's behalf. Wife indicated to Husband that there would be no marriage unless he agreed with Mr. Nagui's demands. Mr. Nagui had some concerns about the marriage as he knew one of Husband's former wives.

127.         Mr. Nagui had two demands regarding the advanced or present mahr: (l) that Husband purchase Wife an apartment in Egypt "acceptable to them" and commit to send her to Egypt at least four times each year; and, (2) that Husband send Wife to Europe at least two times each year to buy merchandise for the stores Wife owned with her mother. These demands were not reflected in the marriage contract itself. (Ex IA, b).

128.         Husband agreed with Mr. Nagui's demands.

129.         On or about November 1 1, 2001, a month prior to the Parties' wedding, Husband purchased a condominium in Cairo, Egypt. There was contradictory testimony from the Parties regarding whether the condominium had been selected by Wife and Mr. Nagui or by Husband. The Court finds that regardless of who "selected" the property, this purchase was made at the request of Mr. Nagui and was consistent with Husband's obligation to provide the advance Mahr to Wife that he had negotiated with Mr. Nagui.

130.         The condominium purchased by Husband in November of 2001 is located at 19 El Gabalaya Street, Zamelek, Cairo, Egypt (hereinafter "Cairo Condo"). The property is approximately 2,045 square feet. Husband purchased the Cairo Condo for a sum of one million Egyptian pounds.

131.         The Cairo Condo required significant renovations at the time of its purchase. Wife testified that the renovations took three to four years to complete. Husband also paid the costs of the renovations which totaled approximately $700,000.00 (U.S dollars), and the

cost to furnish the apartment after it was renovated. Many of the furnishings were purchased by Wife abroad and shipped to Egypt.

132.         Husband placed title to the Cairo Condo in Wife's name in or around 2004.

133.         The Patties were married on December 20, 2001 in Cairo, Egypt at the home of Wife's parents. The marriage was performed by Ma'zoun.

134.         At the time of their marriage, the Parties signed an Egyptian civil "marriage contract" also known in Egypt as a "marriage deed,"

135.         For purposes of clarity, the Parties' marriage contract/deed entered into on December 20, 2001 will hereinafter be referred to as the "Marriage Contract."

136.         A copy of the Parties' Marriage Contract written in Arabic, together with two English translations thereof (one submitted by Husband and the other submitted by Wife) were entered into evidence as Exhibit #1A-C. Ex IC includes reference to Wife's prior divorce.

137.         Under the terms of the Marriage Contract, Wife nominated her father as her proxy to conclude the marriage and cash the dowry.

138.         While the Ma'zoun was filling out the form for the Marriage Contract, he asked the Parties what to write down for the deferred mahr. Wife testified that she told the

Ma'zoun to leave it as "an amount to be determined."

139.         The Patties' Marriage Contract indicates that the mahr is "an amount agreed upon." (Ex

140.     At the time of the signing of the Marriage Contract, Husband paid one Egyptian pound as the symbolic advanced mahr.

141.         After the Parties signed their Marriage Contract on December 20, 2001 , the Ma'zoun filed the Marriage Contract in the Office of Personal Status on December 26, 2001.

142.         The Parties' Marriage Contract is governed by Egyptian law. Because Husband and Wife were both Egyptians at the time of the signing of their Marriage Contract, Afticle 14 of the Egyptian Civil Code determines what law governs their Marriage Contract. Article 14 of the Egyptian Civil Code provides that if either patty at the time of the conclusion of the

marriage is Egyptian, Egyptian law only governs the divorce and the marriage.[3]

143.         Upon the Marriage Contract being filed in the Office of Personal Status, the Parties' marriage was recognized by Egypt as a valid civil marriage. See stipulation of uncontested facts.

144.         The Patties' Marriage Contract is governed by Egypt's separate property regime because that is the default rule and the Patties' Marriage Contract does not include any special conditions which provide otherwise. Husband has no legal or equitable claim to property in Wife's name and Wife has no claim for a distributive share of the Husband's separate property but he has a legal claim to support and maintenance from that separate property.

145.         The Parties could have included special conditions in the Marriage Contract which would have allowed for joint ownership of marital property but did not do so.

146.         Wife was aware of Egypt's separate property regime at the time that she entered into the Marriage Contract.

147.         Prior to signing the Marriage Contract, neither Party made disclosure to the other of his or her assets, liabilities, income or expenses.

The Parties' Conduct and Domicile During the Marriage

148.         During the marriage, the Parties' primarily resided in a condominium owned by Husband on Union Wharf in Boston, Massachusetts.

149.         After renovations were complete on the Cairo Condo in or around 2004, the Parties routinely stayed at that location several times each year.

150.         The Parties also spent significant time in New York City each year.

151.         Early in the marriage the Parties stayed in an apartment on Fifth Avenue during their visits to New York City.

152.         In 2006, Husband purchased the building located at 16 East 77 th Street in New York, New York. The top two floors of the building were renovated to create a large penthouse apartment (hereinafter the "Penthouse") for the Parties to use when they were in New York. Following the completion of the renovations, it was common for the Parties to stay in the Penthouse from Thursday through Sunday and at Union Wharf for the remainder of the week.

153.         In addition to the foregoing, Wife also made regular trips to Paris and Milan with her mother to buy merchandise for the boutiques that they owned together.

154.         From 2007 through 2012, Husband and Wife would routinely travel to Cairo, Egypt twice each year: in December for approximately four weeks around the holidays; and, in the spring for approximately four weeks in April or May. Wife did not spend the majority of her time in Egypt following their marriage.

155.         In the earlier years of the Parties' marriage, Wife traveled to Cairo more frequently to visit her children, who were teenagers at the time.

156.         Wife kept a staff and a driver employed at the Cairo Condo for most of the marriage.

157.         Husband opened an office for ATI in Cairo so that he could work and develop software during his visits to Egypt with Wife.

158.         As of the time of trial, Wife had not been to Egypt since May 30, 2012. Wife testified that she has not returned to Egypt since that date because she does not want to be served with Egyptian court papers.

159.         Pursuant to Article 40 of the Egyptian Civil Code, a domicile is the place where a person habitually resides. A person may have more than one domicile at the same time under Egyptian law.

160.         The Court finds that throughout their marriage, the Parties habitually resided in Boston, in Cairo, and in the later years, New York.

161.         According to the Court's reading of the relevant provisions of Egyptian law, in the latter years of the marriage the Parties could be considered to be domiciled in Massachusetts, in Egypt and as well as in New York. However both parties seemed to consider Egypt their

"base" though they lived abroad much of the year due to business and social

interests.

162.         Wife did not place Husband's name on any of her individually or jointly held property during the marriage. Husband had, and continues to have, no ownership interest in

Wife's Cairo Condo, her commercial real estate in Spain or her condo on the Red Sea.

163.         While Wife earned some of her own income through her boutique business, Husband supported Wife financially throughout the marriage.

Facts and Events Surrounding the Parties' Purported Egyptian Divorce

164.         On or about May 1, 2012, the Parties traveled from Boston to Cairo by way of Paris, France. This trip was one of the Parties' routine visits to Egypt.

165.         The Parties arrived in Paris on or about May 2, 2012.

166.         While in Paris in early May of 2012, the Parties stayed in an apartment rented by Wife's mother.

167.         Husband credibly testified that while in Paris, the Patties had a disagreement on a public street because Husband refused to buy Wife a watch that cost €86,000 (about $120,000 U.S. dollars).. In order to placate Wife, Husband bought her a Hermes bag which cost €6,250. Husband's purchase of the Hermes bag seemed to Husband to resolve the Parties' disagreement for a short time.

168.         On May 4, 2012, the Parties traveled from Paris to Cairo.

169.         While in Cairo in early May of 2012, the Parties stayed in Wife's Cairo Condo.

170.         Husband testified that, after the Parties arrived in Cairo, Wife was still unhappy that Husband had not purchased her the watch that she wanted in Paris, and that they continued to have arguments about the watch. I credit Wife's testimony that the argument did not seem that significant.

171.         On or about May 7, 2012, Husband contacted his brother-in-law and told him that he wanted to divorce Wife in Cairo.

172.         The Court finds that Husband did not travel to Egypt for the principal purpose of divorcing Wife. However, within 10 days he had divorced wife, concluding the marriage was irretrievably broken. The marriage had been having some problems. Wife had

suspected Husband of having an affair and demanded a divorce in 2011 while both parties had returned to Egypt to visit

173.         On the evening May 9, 2012, the Parties attended a dinner party at the home of

Mohammed Ezz El Din. The dinner party continued into the early morning of May 10, 2012. Husband testified that he went to the dinner party with Wife and acted like a normal couple would act because he wanted to keep things calm between them.

174.         After the dinner party, Husband, Wife and another couple, Ahmed Kouddous and Rasha Kouddous went to visit their friend, Mansour El Gammal, at his home. The Parties did not argue during this visit.

175.         After the visit, Husband and Wife returned to the Cairo Condo.

176.         On May 10, 2012, Wife's driver drove Husband to the Cairo airport where Husband met his brother-in-law and Attorney Ahmed Metwally. Attorney Metwally had saved as Husband's sister's attorney in the past.

177.         Husband then went with his brother-in-law and Attorney Metwally to the Ma'zoun's office in Cairo. Husband also brought witnesses with him to the Ma'zoun's office. Attorney Metwally had the Parties' Marriage Contract in his possession on May 10, 2012. Husband testified that he did not know whether or not Attorney Metwally brought any additional documents with him to the Ma'zoun's office. There had clearly been some pre planning by Husband to have his brother in law notified to meet him. Husband, following the divorce, returned to New York for his son's graduation without mentioning to Wife in his initial phone calls to her that he had divorced her. He did not mention the divorce to Wife until May 1 7, 2017. Husband changed the locks on their Boston condo upon his return.

The Parties' Purported Egyptian Talaq Divorce

178.          Both Parties have alleged that their marriage was irretrievably broken as of May 10, 2012.5

179.          Both Parties were physically located in Cairo, Egypt on May 10, 2012.

 

180.          On May 10, 2012, Husband appeared before a Ma'zoun and repudiated the Parties' marriage.

181.          An Attestation of Divorce was completed by the Ma'zoun on May 10, 2012. This

Attestation of Divorce memorialized the talaq divorce performed by Husband.. (Ex22).

182.          On May 12, 2012, the Attestation of Divorce was registered with the Egyptian Office of Personal Status.

183.          The Court finds that the Ma'zoun's registration of the Divorce Attestation validated the civil nature of Husband's talaq divorce from Wife. Upon registration of the Attestation of Divorce, the Parties were considered divorced by the Egyptian civil authority.

184.          Wife has taken no action in Egypt to challenge the validity of the divorce.

Governing Law and the Ma' zoun's Authority.

185.          The Parties talaq divorce is governed by Egyptian law.

186.          Husband and Wife were both Egyptian nationals at the time of the signing of their marriage contract.

187.          The Cairo Condo was within the territory of the Ma'zoun who memorialized the Patties' talaq divorce.

188.          The Ma'zoun had the authority and jurisdiction to memorialize Husband's talaq divorce from Wife. Under the Ma'zoun Act of 1995, a Ma'zoun also has the authority to memorialize divorces that are no fault and consensual between Egyptian nationals and who are Muslim. This particular Ma'zoun also had territorial authority and jurisdiction within the area where the Cairo Condo is located.

189.          Even if the parties were considered domiciliaries of Massachusetts, the Ma'zoun's authority was valid as the parties were Egyptian nationals and physically present in Egypt and Egyptian law allows for more than one domicile. Wife owned property in Egypt, had family in Egypt, owned a business there. Husband also had family, operated his business at times from Egypt. While Husband has been in the United States for some 20 years, he has maintained sufficient contacts with Egypt to be considered a domiciliary there under its law.

190.          Domicile under Massachusetts law is defined as "the place of one's actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode". Fiorentino v Probate Court 363 Mass. 13, 17, n 7 (1974).

191.          A talaq divorce is akin to a no fault divorce.

Notice to Wife of the Talaq Divorce

192.         An acknowledgment of receipt of the Divorce Attestation by a representative of a wife who was not present at a talaq divorce is effective notice of the talaq divorce under Egyptian law.

193.         On May 17, 2012, Husband called Wife to tell her he had repudiated their marriage. At the time of the phone call, Wife was in Egypt.

194.         After her conversation with Husband on May 17, 2012, Wife called her parents and asked Mr. Nagui to check on whether or not what Husband had told her was accurate.

195.         On May 17, 2012, Mr. Nagui went to the applicable Office of Personal Status. While there, Mr. Nagui signed a copy of the Attestation of Divorce to acknowledge he had been given a copy of the May 10, 2012 document that had been filed by the Ma'zoun,

196.         At trial, Wife identified Mr. Nagui's signature on the Attestation of Divorce.

197.         The Attestation of Divorce signed and acknowledged by Mr. Nagui is registered with the Egyptian Office of Personal Status.

198.         Mr. Nagui was acting as Wife's proxy at the time that he signed the Attestation of  Divorce; Mr.Nagui has held a power of attorney for Wife since 1982.

           The Attestation of Divorce entered as Exhibit #22(A)&(B) at trial specifically states that Mr. Nagui is  Wife's, "Divorcee Proxy, Official General Power of Attorney of 1982."

 

199.         On or about May 17, 2012, Mr. Nagui showed Wife a copy of the Attestation of Divorce.

200.         The Court finds that by May 17, 2012, Wife had actual notice of Husband's talaq divorce.

201.         Wife was properly served with notice of the Attestation of Divorce under the requirements of Egyptian law.

202.         Wife's receipt of notice of the talaq divorce did not affect the civil validity of the divorce. Wife's receipt of notice triggered Husband's financial obligations due to Wife as a consequence of the divorce.

203.         On May 29, 2012, while in Egypt, Wife had the Attestation of Divorce translated into English.

204.         The Egyptian Ministry of Justice has issued a Divorce Certificate indicating that the Parties were divorced as of May 10, 2012. (Ex 19).

Wife's Economic Rights

205.         As a consequence of Husband's talaq divorce, Wife is entitled to certain economic rights under Egyptian law. These rights include: the deferred 'nah'", three-months of support commensurate with the status quo; a claim for muta compensation lasting from a minimum of two years up to the duration of the Parties' marriage; and, Wife also retains all of her separate property however and whenever acquired.

206.         An amount for the deferred mahr was not specified in the Parties' Marriage Contract. The Marriage Contract provides that the deferred mahr will be an amount agreed upon between the Parties.

 

207.         If the Palsies are unable to agree upon an amount for the deferred mahr between them, Wife has the right to petition the Egyptian count to have her economic rights determined.

 

208.         Assuming arguendo that the Parties are unable to agree, and that Wife avails herself of the right to petition the Egyptian court, the Egyptian court would then look to the financial circumstances of the Parties to determine the amount for the deferred mahr. In this context, the financial circumstances of the Parties would include: their assets; their incomes; Wife's socioeconomic station in life; and, the gifts and lifestyle that Husband provided to Wife during the marriage.

209.         Under Article 28 of the Egyptian Code of Civil Procedure, the Egyptian court would have personal jurisdiction over Husband if Wife were to file an action to determine the deferred mahr.[4]

210.         In such a proceeding, there would be financial discovery available to the Parties.

Pursuant to the provisions of the Egyptian Code of Civil Procedure and the Egyptian Code of Evidence, the proper procedure would be for the Parties to make discovery requests upon one another, and for the Court to make rulings on those requests and generally manage the discovery.

211      Egyptian law includes, at a minimum: the Cairo Condo and all its furnishings; her interest in Donna Boutique, Inc.; her interest in real estate owned in connection with Donna Boutique; her Technoscient stock; her ownership interest in the Red Sea Condo; and, her bank accounts,

212.          During the Parties' marriage, Wife had a 50% ownership interest in an Egyptian corporation, Donna Boutique, Inc. (hereinafter "Donna Boutique"). Donna Boutique had two locations in Cairo. Wife also has a 25% interest in a commercial condominium in Marbella, Spain which had formerly housed Donna Boutique.

213.          At the time of trial, Wife owned 22% of the stock in Technoscient, an Egyptian corporation owned by Mr. Nagui.

214.          Wife also has a 50% ownership interest in a three bedroom condominium in a resort on the Red Sea in Egypt.

 

215.          Wife did not file any actions in Egypt to challenge the validity of the Parties' divorce.

216.          Wife did not challenge any irregularities related to the divorce in Egypt.

217.          Wife's expert testified that she has the right to go to the ministry to challenge the validity of the Parties' divorce.

DISCUSSION/RATIONALE

While there have been voluminous motions and pleadings filed in this case, this matter is reduced to two main issues: (l) were parties validly divorced civilly in Egypt and (2) if so should this Court grant comity to the divorce. For the reasons set forth herein, the Court finds the parties were validly divorced civilly in Egypt but does not extend comity.

G. L. c. 208, 39 governs the validity of foreign divorces in the Commonwealth of Massachusetts. Under that section, "A divorce adjudged in another jurisdiction according to the laws thereof by a court having jurisdiction of the cause and of both the parties shall be valid and effectual in this commonwealth; but if an inhabitant of this commonwealth goes into another jurisdiction to obtain a divorce for a cause occurring here while the parties resided here, or for a cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth."

Because the Parties were divorced in Egypt, rather than one of' the other States of the Union, the principle of comity, rather than the Full Faith and Credit Clause of the United States Constitution applies to whether or not this Court will enforce the Parties' divorce. 'C ' Comity,' in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protections of its laws." Hilton v. Guyot, 159 U.S. 1 13, 163-164 (1896). Under the doctrine of comity, "Massachusetts generally will recognize and enforce valid judgments rendered by a foreign court." Schiereck v. Schiereck, 14 Mass. App. Ct. 378, 380 (1982).


However, "a "decree of divorce by a foreign county will not be recognized by comity where it was obtained by a procedure that denies due process of law, or was obtained by fraud, or where the divorce offends the public policy of the state in which recognition is sought." 24A Am. Jur. 2d "Divorce and Separation" 1071 (2014). Therefore, even if this Court finds that the Parties' divorce was validly obtained under the laws of Egypt, it will not grant comity to that divorce if the Court finds that: (1) the procedure for obtaining the Patties' divorce lacked due process; (2) the Patties' divorce was obtained by fraud; or (3) the Parties' divorce offends the public policy of the Commonwealth of Massachusetts.

 

Validity

As a male Citizen of Egypt, Husband had the right to repudiate his marriage to Wife by talaq. Husband appeared before a Ma'zoun and in the presence of two male witnesses repudiated his marriage to Wife. The Ma'zoun had jurisdiction to record Husband's pronouncement of talaq. The Ma'zoun registered the appropriate documents evidencing Husband's pronouncement of talaq with the Office of Personal Status. Thereafter the Ma'zoun arranged to provide notice of the talaq to Wife by service upon Mr. Nagui, Wife's legal proxy as named in the Parties' marriage contract. Mr. Nagui acknowledged receipt of that service. Pursuant to Egyptian law, the talaq became valid and enforceable in Egypt upon its registration with the Office of Personal Status.

Under Egyptian law, because the Patties were Egyptian citizens, and both parties were physically within Egypt, Egypt had jurisdiction over both of the Parties and over their divorce. The Court is not persuaded that Husband traveled to Egypt for the principal purpose of obtaining a divorce from Wife for a cause that occurred in Massachusetts while the Parties resided here, or for a cause which would not authorize a divorce by the laws of Massachusetts. The talaq can be considered a "no-fault" divorce which is a cause of action authorized under Massachusetts law. While the circumstances leading up to Husband's repudiation of the marriage were contested at trial, as was the location of where the Parties' "resided," there was no evidence introduced which indicated that Husband traveled to Egypt for the sole or principal purpose of obtaining a divorce from Wife. Following the Parties' marriage, the Parties' routinely traveled together to Egypt, often by way of Europe. Husband and Wife were both m Egypt on May 10, 201'2 by virtue of one of these regularly scheduled trips. For contrast, see Wells v. Wells, 230 Ala. 430 (1935).

Wife contends Husband went to Egypt for the purposes of the divorce, to protect his property from any marital claims for division and accomplished same within 10 days. She argues the breakdown of the marriage occurred in Massachusetts. As noted, a talaq divorce is akin to a Massachusetts no fault divorce (except for notice provisions). A no fault divorce is based on subjective state of mind testimony regarding the irretrievable breakdown of the marriage and not "observable acts and occurrences such as marital quarrels or separation of parties" Caffyn v Caffyn, 441 Mass 487 (2004) citing The End of Innocence: Elimination of Fault in California Divorce Law, 17 UCLA L. Rev. 1306 (1970).

 

Like no fault, talaq is inherently subjective. While the breakdown likely has been occurring over time, the Court cannot say as a matter of law that Husband's conclusion the marriage irretrievably broke down while in Egypt was wrong. In 201 1 Wife, while in Egypt, concluded the marriage was over and had wanted a divorce, but did not follow through. 

 

Based on all of the evidence presented at trial, the Court finds that the Parties were validly divorced under the laws of Egypt. Egypt had jurisdiction over the cause and the parties. The standard set by G, L. c. 208, 39 has been met. However, that does not end the inquiry. The Court must also determine whether or not to grant comity to the Parties' Egyptian Divorce Decree.

Comity.

The Court was not presented with any credible evidence which would indicate that Husband procured the talaq divorce by fraud. The remaining concerns for the Court are the due process afforded to the Parties under Egyptian law, and whether or not recognition of the talaq divorce would be contrary to the public policy of the Commonwealth of Massachusetts. In sum, the question is whether or not the procedural and substantive laws in Egypt which apply to the Parties divorce are "reasonably comparable" to the laws of the Commonwealth of Massachusetts. See Akinci-Unal v. Unal, 64 Mass. App. Ct. 212, 220-21 (2005) (citing Schiereck, 14 Mass. App. Ct. at 380). Whether or not the Egyptian Court would grant comity to a Judgment of this Court is also a relevant consideration. See 24A Am, Jur. 2d "Divorce and Separation" 1076. Both of the Parties' experts in this case testified that the Egyptian Court would not grant comity to a Judgment of this Court which violated Egyptian public policy. The key characteristics of the process that is afforded to the parties to an Egyptian talaq divorce arc as follows: (l) it is extra-judicial; (2) it is unilateral; (3) it is a right exclusive to a husband; (4) a wife is not entitled to prior notice of a Talaq; and, (5) a wife has no opportunity to contest a husband's pronouncement of ralaq. All these factors taken together, result in an exclusive right of an Egyptian Muslim husband to divorce his wife without her knowledge and without judicial oversight. Because a similar right is not extended to Wife, this violates the strong public policy in Massachusetts, and in the United States generally, in favor of equal protection of the laws. See Aleem v. Aleem, 404 Md. 404 (2008). Further, the Commonwealth of Massachusetts has acknowledged that a spouse has an interest in the marital status itself. See G. L. c. 209, 32; Hogan v. Hogan, 320 Mass. 658 (1947). Massachusetts courts have historically recognized that parties have an interest in the marital res, that is, their status of being married. For this reason, for example, courts are statutorily required to appoint a guardian ad litem for incompetents, to represent their interest in the status of their marriage as well as the economic consequences that flow from their divorce. See for example M.G.L ch 208 sec 15; Garnett v. Garnett, 114 Mass, 379 (1874). In the case at bar Wife was not entitled to (or given) notice of Husband' s talaq divorce until after it had been registered with the Office of Personal Status, Upon registration with the Office of Personal Status, the talaq divorce became effective in Egypt. Therefore, Wife's marital status was materially changed without her knowledge and without her having an opportunity to be heard. This too is inconsistent with Massachusetts public policy and contrary to the due process afforded to divorcing spouses under the laws of the Commonwealth. See also Fara* v. Farag, 4Ad. 3 rd 502 (2004) talaq divorce in Egypt not given comity in Maryland.

 

Husband contends Wife could have bargained for advance notice if he filed for divorce as part of their marriage contract and did not do so. Husband further argued Wife knowingly waived her right to such notice. The evidence presented does not support any knowing waiver. It is not clear whether Egyptian civil law would recognize a contractual provision as to notice that varies with Sharia law.

Wife contends the talaq is not a judgment within the meaning of G.L. c. 208 s 39 as it did not involve formal adjudication. While it is extrajudicial in the sense that the Court did not enter it, I find registration by the Ma'zoun of the divorce is the functional equivalent of a judgment and sets time frames for invocation of specific legal rights.

In addition to the due process concerns that are detailed herein, a wife's property rights that flow from an Egyptian divorce implicate public policy considerations. Egypt's default method of property distribution follows a strictly title-based separate property regime. The overarching principle which governs property division upon divorce in Massachusetts is equitable distribution. See G. L c. 208, 34. (Indeed Egyptian law is more comparable to Massachusetts law prior to enactment of the current 208 sec 34). Egypt's strict title-based law does not take into account the contribution of the non-titled spouse to the acquisition and preservation of the marital estate. In Massachusetts contribution is a key factor for the Court to consider when fashioning a Judgment of Divorce that includes property distribution. See Moriarty v. Stone, 41 Mass, App. Ct. 151 (1996).

Because the Egyptian separate property rule does not take contribution of the Parties into account, it is inconsistent with Massachusetts public policy as enumerated in G. L c. 208, 34 and the cases which have addressed that section. See also Farag supra and Aleem v. Aleem, 93 IA2d 1 123 (marriage contract found not to govern equitable division of assets nor waive Wife's rights in divorce action).


Under Egyptian law, Wife's right to support from Husband upon dissolution is limited to three months of support during the waiting period and "compensation" for the unilateral divorce. On its face, the purpose of alimony in Egypt seems to be contrary to the public policy of Massachusetts. Here, an award of alimony is based upon the need of a recipient spouse for support and the ability of the payor spouse to contribute to that support. G. L c. 208, SS 48. In the case of the Parties' Egyptian divorce, Wife is entitled to muta by virtue of Husband's election to divorce Wife by talaq. Experts for both Parties testified that the Egyptian Court would take the length of the Parties' marriage and their socioeconomic status into account when arriving at the amount of "compensation" for the unilateral divorce. These factors are clearly deficient when compared against those enumerated in G, L. c. 208, 34, 53. Also of note is that neither expert mentioned Wife's need or Husband's ability to pay as key considerations for the Egyptian court to consider in setting support. While Egyptian law does provide some mechanism for support of Wife following her divorce from Husband, this Court finds that mechanism to be fundamentally different from Massachusetts law on alimony. Moreover the Egyptian Court does not consider the real estate ,business or other property physically located outside of Egypt. Some but not all of the section 34 factors are comparable to what Egyptian courts would consider in making a property division. Under Massachusetts law each statutory factor must be considered and non-statutory factors cannot be considered. 

Under Egyptian law, Wife is also entitled to payment of the deferred mahr. This payment is governed by the terms of the Patties' Marriage Contract/ In this case, the Parties' Marriage Contract does not list a specific amount for the deferred mahr but rather states that it will be an amount agreed upon by the Parties. Both Parties' experts testified that if the Parties are unable to agree on an amount for the deferred mahr, an amount will be determined by the Egyptian Court. Testimony at trial indicated that the Egyptian Court will look to the length of the parties' marriage and Wife's socioeconomic status in determining the deferred mahr. Based on the contentious history of this case, it is not likely that the Parties will agree on an amount for the deferred mahr. Therefore, it is likely that the matter will rest in the hands of the Egyptian court.

Because this process has not yet occurred it is difficult for this Court to make a definitive finding Egyptian separate property rule does not take contribution of the Parties into account, it is inconsistent with Massachusetts public policy as enumerated in G. L c. 208, 34 and the cases which have addressed that section. See also Farag supra and Aleem v. Aleem, 93 IA2d 1 123 (marriage contract found not to govern equitable division of assets nor waive Wife's rights in divorce action).


Under Egyptian law, Wife's right to support from Husband upon dissolution is limited to three months of support during the waiting period and "compensation" for the unilateral divorce. On its face, the purpose of alimony in Egypt seems to be contrary to the public policy of Massachusetts. Here, an award of alimony is based upon the need of a recipient spouse for support and the ability of the payor spouse to contribute to that support. G. L c. 208, SS 48. In the case of the Parties' Egyptian divorce, Wife is entitled to muta by virtue of Husband's election to divorce Wife by talaq. Experts for both Parties testified that the Egyptian Court would take the length of the Parties' marriage and their socioeconomic status into account when arriving at the amount of "compensation" for the unilateral divorce. These factors are clearly deficient when compared against those enumerated in G, L. c. 208, 34, 53. Also of note is that neither expert mentioned Wife's need or Husband's ability to pay as key considerations for the Egyptian court to consider in setting support. While Egyptian law does provide some mechanism for support of Wife following her divorce from Husband, this Court finds that mechanism to be fundamentally different from Massachusetts law on alimony. Moreover the Egyptian Court does not consider the real estate ,business or other property physically located outside of Egypt. Some but not all of the section 34 factors are comparable to what Egyptian courts would consider in making a property division. Under Massachusetts law each statutory factor must be considered and non-statutory factors cannot be considered. 

Under Egyptian law, Wife is also entitled to payment of the deferred mahr. This payment is governed by the terms of the Patties' Marriage Contract/ In this case, the Parties' Marriage Contract does not list a specific amount for the deferred mahr but rather states that it will be an amount agreed upon by the Parties. Both Parties' experts testified that if the Parties are unable to agree on an amount for the deferred mahr, an amount will be determined by the Egyptian Court. Testimony at trial indicated that the Egyptian Court will look to the length of the parties' marriage and Wife's socioeconomic status in determining the deferred mahr. Based on the contentious history of this case, it is not likely that the Parties will agree on an amount for the deferred mahr. Therefore, it is likely that the matter will rest in the hands of the Egyptian court.

Because this process has not yet occurred it is difficult for this Court to make a definitive finding regarding whether or not the Egyptian Court's determination of the mall", will be consistent with the public policy of Massachusetts concept of fairness.

In light of the foregoing, the Court finds that no force or effect shall be given to the Parties' Egyptian Divorce Decree. The procedural and substantive laws of divorce in Egypt cannot be said to be reasonably comparable to the procedural and substantive laws of divorce in Massachusetts. In the eyes of the Commonwealth, the Parties' marriage has not been validly dissolved.

Husband cites no case in law or equity extending comity to a talaq divorce on the facts of this case.


Based upon the expert testimony, the Court finds that Wife continues to be entitled to a number of substantial property rights in Egypt flowing from the talaq divorce. Husband has filed an action in Egypt to determine Wife's economic rights. Wife testified that she has intentionally refrained from returning to Egypt during the pendency of this trial to avoid service on the various actions filed by Husband in Egypt. Also based on expert testimony, Egypt is not likely to grant comity to a Judgment of Divorce issued by this Court which includes equitable division of the marital estate. Therefore, the Court finds that any action taken by this Court is not likely to impact Wife's continued ability to enforce her substantial rights in the Egyptian Court. Husband contends that a decision in favor of Wife allows her, in essence, to "double dip" (e.g. retain her separate property in Egypt under Egyptian law and then obtain a share of the marital estate in Massachusetts.). However this Court knows what Wife's separate property is, and can fix its value, and consider those assets in determining whether she should be assigned anything {'further from the marital estate. Any amounts Husband may be ordered to pay Wife for support under Egyptian legal proceedings shall be ordered offset against any alimony payments to Wife ordered by this Court. Because this Court determined parties were validly divorced in accordance with Egyptian civil law, it is not necessary to deal with issues of separation of church and state as raised by Wife.

 

Wife's Motion to Amend her Complaint for Divorce

Wife's Motion to Amend her Complaint was contemporaneous with her testimony at trial that Husband had begun "hurting her during sex" a few months prior to May l , 2012. This was the first allegation of any soft proffered by Wife regarding cruel and abusive treatment on the part of Husband and came nearly two years after the filing of Wife's original Complaint for Divorce. Both of the changes that Wife seeks to make could have been requested at any point during the nearly two years that this matter has been pending. Wife argues that because Husband has not filed an Answer to Wife's Complaint, and because trial on the merits of Wife's Complaint has been stayed, the trial should not be considered to be at a "late stage" and Husband will not be prejudiced if the Court allows Wife's Motion to Amend. However, both of the aspects of the original Complaint for Divorce that Wife seeks to Amend are relevant to this first portion of the trial regarding validity and comity. The trial on validity and comity is rooted in large part on the applicability of the facts of this matter to G. L. c. 208, 39. A material fact in this regard is what the cause of action was, where the cause of action occurred and where the Parties resided at the time the cause of action occurred. By attempting to change the date that the cause of action occurred, as well as the location of the alleged acts resulting in the Complaint being filed, Wife is seeking to alter facts material to this portion of the trial after this portion of the trial has begun. This is necessarily prejudicial to Husband and his ability to craft a trial strategy to defend against the contents of Wife's C01nplaint. The Court is also mindful that Husband's failure to file an Answer to Wife's Complaint is likely due to the fact that he has entered a limited appearance for the purpose of challenging this Court's jurisdiction. As such, the Court is denying Wife's Motion to Amend her Complaint for Divorce at this time, without prejudice to re-file a similar motion prior to the discovery deadline for the second stage of this trial which is set forth below.

ORDER


After hearing and consideration of all of the evidence and reasonable inferences drawn therefrom, it is hereby ORDERED and ADJUDGED that: 

 

l.         The Parties were validly divorced by talaq pursuant to Egyptian law in Cairo, Egypt on March 10, 2012.

2.                  That divorce became effective in Egypt upon its filing with the Office of Personal Status on or about May 12, 2012.

3.                  Wife had no prior notice of Husband's intention to perform talaq.

4.                  Wife had no ability to contest the talaq.

5.                  Wife had no right to unilaterally repudiate the Parties' marriage.

6.                  Wife continues to have the following rights available to her in Egypt, as a result of Husband's performance of talaq:

a.                  Payment of support during the idaa three month waiting period;

b.                  The deferred 'nah'",

c.                  The muta compensation payment for Husband's unilateral talaq divorce; and,

d.                  Retention of all her separate property, and income and bank accounts however and whenever acquired, including her advanced nzahr of a $1,000,000 condo in Cairo and all its antique furnishings.

7.                  To date, Wife has voluntarily chosen not to exercise her rights in Egypt as detailed above.

8.                  The Parties' talaq divorce does not comport with Massachusetts principles of equal protection and due process.

9.                  This Court does not grant comity to the Husband's talaq divorce.

10.               Trial on the merits of Wife's Complaint for Divorce shall go forward in the Suffolk Probate and Family Court.

l l .     The property to which Wife is entitled under Egyptian law will be taken into account in the Court's distribution of marital property, whether or not Wife pursues her rights under Egyptian law. , Any order for support entered by an Egyptian Court shall be set off against any amounts Husband may be ordered to pay as alimony in Massachusetts.

12.             A pre-trial conference shall be held on May 4, 2015. 9 a.m.

 

13.             All discovery is to be completed by April 24, 2015.

14.             The equity complaint by Wife against Husband is DISMISSED as issues as to property allocation can be dealt with as part of the divorce.

15.             Wife's Motion to Amend her Complaint for Divorce is DENIED without prejudice.

16.             A hearing on Husband's Motion for Fees originally filed on May 10, 2013 and Wife's Opposition thereto shall be held on -  2/27/2015.

So ordered.

 

 

Dated:1/1/2015    

Hon. Elaine M. Morimty, Justice

Suffolk Probate Family Court


 

[1] There have been numerous Motions and Responses filed during the pendency of this matter. What follows is an abridged version of the relevant procedural history. The Court anticipates that a more complete procedural history may accompany the findings that follow trial on the second stage of these proceedings.

 

[2] It is unclear what is meant by "at >the time of the conclusion of the marriage" as found in Article 14 of the Egyptian Civil Code. Husband's expert testified that the phrase refers to the time at which the marriage itself (i.e. the signing of the contract in front of the Ma'zoun and witnesses) is concluded. Wife's counsel argued that it is apparent from the plain meaning of the statute that the phrase refers to the time at which the marriage relationship comes to an end (i.e. at the time of dissolution). The Court heard testimony from a certified translator called by Husband with regard to the meaning of the phrase. Unfortunately, that witness was unable to provide clarity. Because the Court finds that both Parties were Egyptian at both the time that the marriage itself was effectuated and the time at which the marriage relationship was terminated under Egyptian law, it is unnecessary to decide precisely which of the two meanings is intended by the statute.

 

[3] The Parties' respective expe1ts in Egyptian law gave contrary testimony as to those special conditions which would be permissible and those which would not be. Husband's expe1t testified that a special condition could be included whereby Wife would have the right to pronounce talaq. Wife's expert testified that a such a special condition would not be permitted, nor would a condition granting Wife advanced notice of Husband's talaq.

 

[4] It is unclear what is meant by "at the time of the conclusion of the marriage" as found in Article 14 of the Egyptian Civil Code. Husband's expert testified that the phrase refers to the time at which the marriage itself (i.e. the signing of the contract in front of the Ma'zoun and witnesses) is concluded. Wife's counsel argued that it is apparent from the plain meaning of the statute that the phrase refers to the time at which the marriage relationship comes to an end (i.e. at the time of dissolution). The Court heard testimony from a certified translator called by Husband with regard to the meaning of the phrase. Unfortunately, that witness was unable to provide clarity. Because the Court finds that both Parties were Egyptian at both the time that the marriage itself was effectuated and the time at which the marriage relationship was terminated under Egyptian law, it is unnecessary to decide precisely which of the two meanings is intended by the statute.

 

 

[5]Wife used this date as the day on which the Parties' Marriage became irretrievably broken when she filed her original Complaint for Divorce. Wife has since filed a Motion to Amend her Complaint for Divorce to change the date of irretrievable breakdown to "before April 30, 2012."

 

[6]The Egyptian count does not have jurisdiction over property located outside of Egypt.

 

{7}It is important to note that the Parties' Egyptian Marriage Contract would likely fail the test for an enforceable pre-marital contract under the laws of Massachusetts as there was no financial disclosure between the Parties prior to the signing of the contract. See DeMatteo v. DeMatteo, 436 Mass. 18 (2002); Rosenberg v. Lipnick, 377 Mass. 666 (1979).


Links to all Court Documents

1 - Sharia Law does not apply to property
2 - Findings of Fact for Property Settlement
3 - Property Settlement