MARRIED WITHOUT LICENSE

Mowafy v. Ghaly, NYLJ February 26, 2021, Date filed: 2021-02-17, Court: Supreme Court, Richmond,  Judge: Justice Ralph Porzio, Case Number: 55344/2020:

"Plaintiff commenced these proceedings by filing a Summons and Complaint on October 16, 2020. Per the Plaintiff’s Complaint, the parties were alleged to be married on December 17, 2011, in Kings County, New York, in a religious ceremony by a “clergyman, minister, or leader of the Society for Ethical Culture.” The Plaintiff lists the grounds of divorce as Cruel and Inhuman treatment pursuant to Domestic Relations Law §170(1) and Adultery pursuant to Domestic Relations Law §170(3). There are three children of the marriage, Kenz (D.O.B. 1/10/14). Zahra (D.O.B. 11/27/2012) and Eman (D.O.B. 5/21/15). The Defendant filed an Answer on November 20, 2020 but denied that the parties were ever married.

Plaintiff filed an Order to Show Cause on January 12, 2021, seeking inter alia, pendente lite custody, child support, spousal maintenance and counsel fees. The Defendant filed an Order to Show Cause on January 13, 2021, seeking to dismiss the action as he contends that the parties were never married, and he was married to another person, Rosa Torres, at the time of the alleged marriage to the Plaintiff.

Based upon the filed affidavits, exhibits, and testimony, this Court finds that the Defendant was married to Rosa Torres on February 25, 2004, and they were divorced on November 25, 2015. The Plaintiff purports that she and the Defendant entered into an Islamic Marriage Contract on December 17, 2011. The Court notes that the Islamic Marriage Contract was not signed by the Defendant and further heard sworn testimony on the record from Rosa Torres regarding her marriage to the Defendant.

In New York, “while the Domestic Relations Law deems it necessary for all persons intending to be married to obtain a marriage license, a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized.” See Hasna J. v. David N., 53 Misc. 3d 1142 (N.Y. Sup. Ct. September 28, 2016). Further, a marriage may be found valid if the parties have a “justified expectation” that the couple believed themselves to be married. Id. citing Matter of Farraj, 72 A.D.3d 1082 [2d Dept. 2010]. In this matter, though the Plaintiff had a justified expectation that the parties were married, the Court does not find that the Defendant had the same justified expectation, as he denies ever marrying the Plaintiff.

Further, assuming arguendo, that both parties had a justified expectation that they were married, the Defendant was married to Rosa Torres at the time of the Islamic Marriage Contract. As the Defendant was already married, the Plaintiff and Defendant’s attempt to marry using an Islamic Marriage Contract was void from its inception. See Lipschutz v. Kiderman, 76 A.D.3d 178 [2d Dept. 2010]. As a result, the marriage of the Plaintiff and Defendant cannot be validated through estoppel, agreement, or their “conduct in holding themselves out as husband and wife.” Id.

Based upon the foregoing, this Court hereby dismisses the action for divorce, realizing that the Plaintiff may file for child support, custody, and any other relief deemed necessary in the Family Court or any court of competent jurisdiction.

Though the Complaint has been dismissed, in light of the Plaintiff’s justified expectation and good faith belief that the parties were married, the Court is awarding counsel fees in the sum of $3,500, payable by the Defendant to the Plaintiff’s counsel. This award represents ten hours of legal work performed for both motion practice and court appearances at a rate of $350 per hour. The award is reasonable based upon the experience of counsel, the parties’ income disparity, and the amount of time expended. The total sum must be paid on or before March 17, 2021."