When it comes to divorce, Illinois courts will generally accept decrees issued by other states or foreign countries under a legal principle known as “comity.” But there are limits to comity. An Illinois court may withhold comity if it believes the foreign state or country’s court deprived the parties of basic due process or otherwise acted in a fundamentally unfair manner.
IL Court Refuses to Extend Comity to Indian Divorce, Citing Lack of Due Process and Fundamental Fairness
This issue came up in an April 2019 decision from the Illinois Second District Appellate Court. The case involved a couple that married in India in 1979. The couple later relocated to Illinois and became U.S. citizens. The wife filed for divorce in Illinois court in September 2017.
The husband moved to dismiss the lawsuit. He presented evidence that he obtained a divorce from his wife in India in May 2017. He further alleged that as part of the Indian divorce proceedings, his wife accepted a “financial settlement” of approximately $447, which was now binding on her.
In response, the wife told the Illinois court that she neither received proper notice of her husband’s purported Indian divorce action nor consented to the purported financial settlement. The husband replied that he complied with “sharia law,” which applied to both himself and his wife as “pious Muslims” and was recognized as a valid source of law by the Indian courts.
The Illinois trial court ended up dismissing the wife’s divorce petition. The judge conceded the $447 financial settlement was “egregious,” but nevertheless felt compelled to extend comity to the Indian court’s divorce decree. The wife then appealed the judge’s ruling to the Second District.
The appellate court saw things differently than the trial judge. Specifically, the Second District said the trial court erred in its ruling. Since the wife never had an opportunity to have her voice be heard or present a legal case in the Sharia Law proceeding, the Second District concluded the Indian court never acquired proper jurisdiction over her.
More to the point, the Indian court’s decision “violated the laws and public policy” of Illinois. At the time of their divorce, the couple resided in Illinois and held their assets in this state. Under Illinois law, any such marital property must be divided in “just proportions” after a judge considers a number of relevant factors. Here, the Indian court effectively awarded all of the marital property–and no spousal maintenance or alimony–to the husband.
The Second District went on to say it found the trial judge’s ruling “troubling” as it did not appear to follow American law and standards of due process. Instead, the trial court appeared to dismiss the wife’s divorce petition “based on what it assumed the law was in India for pious Muslims.”
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In any contested divorce case, both spouses have certain legal rights under Illinois law. An experienced Illinois divorce attorney can help ensure the courts respect those rights. If you need legal advice regarding your divorce, contact SAM LAW OFFICE LLC today to schedule a free consultation.