Tag: Culture

IRMO Kushesh 2018

In IRMO Kushesh (09/21/2018, 4A/D1, copy attached) the court briefly considered the culture of “male preferred transactions” among the Iranian families. In rejection of Husband’s argument that all the money for the down payment of a condominium, including the funds transferred by the Wife’s father, had come from his separate bank, the Court stated: “As to why those funds had been channeled through Husband’s account,…, Wife testified,  2 “cultural” considerations had motivated her father to send the money to Husband….”.

[FN]: Wife’s testimony on the issue was:

Q. “And why did your father not wire the money to your account, if you had an account?”
A. “To be honest, it’s just my father, he loved Wishtasb, and he trusted him. He thought he knows and – I don’t know. It’s a culture thing, I guess. Like, men like to deal with men.”

California: Belief in Cultural Marriage if in Good Faith may be Unreasonable

California Appellate Court, 6th District (Santa Clara): Vryonis decision (1988) invalidating Iranian Cultural Marriage was erroneous

Santa Clara, California, April 19, 2011: In Ceja v. Rudolph & Sletten, Inc., the California Appellate Court for the 6th District held that an innocent party to an invalid marriage would be entitled to marital benefits even if her beliefs were unreasonable.

By this holding, the court disagreed with more than two decades of California law reflected in the case of “In re Marriage of Vryonis”, decided in 1988, which declared that good faith belief in validity of marriage must be reasonable.

In Vryonis the court rejected claim of an Iranian woman who believed her private cultural marriage to her Greek husband was valid, although it was made in her home, without obtaining a marriage license as required by California law.

In Ceja, after death of her Husband at work, Mrs. Ceja brought action for wrongful death, but Husband’s employer moved for summary judgment claiming that as a matter of law, Mrs. Ceja did not qualify as a putative spouse because at the time of marriage knew that her Husband is married. 

The trial court agreed and granted summary judgment, applying an objective test for putative status. The court found that it was not objectively reasonable for Mrs. Ceja to have believed that her marriage was valid. The appellate court disagreed. The court believed that good faith belief in validity of marriage asks whether that person actually believed the marriage was valid and whether he or she held that belief honestly, genuinely, and sincerely, without collusion or fraud.

The court disagreed with In re Marriage of Vryonis, which held that the statutory language incorporates an objective test. The court found that: 1. The concept of putative spouse, allowing marital benefits to a spouse even if the marriage is defective is a judicially created relief and the judicial definition of the putative spouse required only a good faith belief in the validity of a marriage. 2. The Legislature codified that definition without intending to change it. 3. The Vryonis court engrafted an objective test to the statutory definition based on the legally unsupported view that “good faith belief” necessarily incorporates an objective standard. 4. The Vryonis court intruded upon the Legislature’s prerogative.

The courts have followed and uncritically accepted Vryonis decision but the policy of stare decisis carries little weight. Despite its widespread acceptance, Vryonis created a conflict with prior cases. The rule of statutory construction is inapplicable, because there is an unresolved conflict in the judicial holdings. https://www.courts.ca.gov/documents/5-s193493-app-nancy-ceja-answer-brief-merits-111411.pdf

WASHINGTON: Afghani/Islamic Mahr Not Enforceable As A Prenuptial Contract

Islamic Mahr Is Not Enforceable Against Afghani Groom Who Did Not Read, Write, or Speak Farsi

Washington, February 23, 2010: Husna (Wife, 19 ) from Canada, and Khalid (Husband, 26) from U.S., are children of Afghan immigrants. They married in an Islamic marriage ceremony in Washington, during which Khalid promised in writing to make an “immediate” cash gift of  $100.00, and a “future” gift of $20,000.00, to Husna as her Mahr (i.e. dowry a traditional Afghani-Islamic Bridal Gift).

Upon filing for divorce by Husna 13 months later, she requested, and the trial Court ordered Khalid to pay $20,000.00  as a valid contractual obligation to Husna.  Court of Appeals of Washington, Division Three, Case No. 27616-3-III, disagreed and reversed. The Court found that Khalid did not speak, read, or write Farsi, and did not know about the Mahr until 15 minutes before he signed the agreement. An uncle explained the obligation to Khalid after he had signed it. The Court found that the agreement was not enforceable under neutral principles of contract law.

Note by Abbas Hadjian: The reader is cautioned that opinion of the Appellate Court of Washington contains errors in defining and/or understanding the Mahr and the Islamic marriage. Mahr is not a “prenuptial agreement”. Is a religiously sanctioned promise by the Groom to make (present and/or future) cash gift to the Bride. Is normally negotiated by the Bride and Groom relatives in advance of the wedding, and disclosed at the ceremony and recorded in the marriage certificate. In many Islamic cultures a marriage without Mahr is not valid.

The marriage itself, is like a Christian wedding, and includes religious uttering, but is not “an engagement ceremony”, which usually is conducted few months/weeks before. It establishes and solemnizes the martial relationship between the parties religiously, whether or not the marriage is civilly recorded or recognized.

LOUISIANA: Right To Cultural Upbringing Belongs To Both Parents

Trial Court Erred In Awarding Right of Religious and Cultural Upbringing Solely to the Custodial Parent

Louisiana, March 10, 2010: D.R.S. (Father) and L.E.K. (Mother) were not married, but had a child. The family Court gave Mother physical custody, with sole right of determining religious and cultural  upbringing of the child. Father was  awarded visitation only. On appeal by the Father, Court of Appeals of Louisiana, Third Circuit reversed.

The Court, in Case of D. R. S. v. L. E. K., Nos. 09-1274-09-1275, found “Though the custodial or domiciliary parent may raise the child in a legitimate religion of his/her own choosing, that parent may not force that religion or religious affiliation upon the noncustodial parent or preclude the noncustodial parent from pursuing his/her own religious affiliation and sharing same with the child provided doing so does not negatively affect the best interests of the child. There is no statutory nor jurisprudential authority to support the trial court’s ruling that the custodial or domiciliary parent has the sole authority to mandate “what belief system is presented to the child in . . . any home in which the child visits or resides.”