CULTURAL GIFTS IN THE FAMILY COURTS

Abbas Hadjian
(May 2010)

A. Introduction:
In handling a culturally sensitive[i] divorce in California, we, as family law practitioners,  must pay serious attention to the identification and satisfaction of the executory marital gifts. More than that,  we must be ready to educate the judicial officer as to the significance of such marital gifts and consequences of the failure  to address the issues in an appropriate and serious manner.

Depending on the geographical or cultural origin of the spouses, a marital gift may vary in value from a few dollars to several hundred thousand dollars. It may require payment before the wedding, during the  marriage, upon the divorce, after the divorce or upon death of one or both spouses. A marital gift may be as limited as the exchange of cash and property between the groom and bride themselves, or as expansive as the exchange between the extended families of both parties.

Along with identification, it is incumbent upon every attorney ( and a family law judge) to educate herself/himself as to the consequence of any criminal/quasi criminal punishment[ii] for executory and unsatisfied marital gifts in the native countries of the litigants. This inquiry must include prevention of confiscation of travel documents and imprisonment of the obligors for non-payment of marital gifts upon return to their country of origin [iii]

B. Beyond “Dower” and “Dowry”:

The only known form of the marital gift in our California legal system is dowry, a gift of cash or property from groom to bride[iv] , or from bride to the groom [v]. Yet, around the globe the marital gift takes many forms and shapes, depending on the type of the gift,  person(s) obligated to pay or to receive, time and manner of payments and similar factors. [vi].

A common characteristic  between almost all forms of the marital gift is that they are moral/ honor based, an unalienable right belonging to the beneficiary which may not be cancelled by third parties.  It remains valid until satisfied, unless waived in exchange for cancellation or dissolution of the marriage.

C. Person Who May Give and Receive:

Based on the persons who may give or receive, the marital gift may be classified as follows:

  1. From Groom to Bride.
  2. From Bride to Groom.
  3. From Bride to her future home.
  4. From Groom to Bride’s Parents.
  5. From Bride to Groom’s parents.
  6. From Groom’s Parents to the Bride.
  7. From Bride’s Parents to the Groom.
  8. From Groom’s Parents to the Bride’s Parents.
  9. From Bride’s Parents to the Groom’s Parents.
  10. From Brides’ Brothers to the Groom’s parents.

D. Types of Marital Gift:

Based on the subject of the property, a marital gift may be categorized as follows:

  1. Symbolic gifts, i.e. Holy Book, heirloom jewelry.
  2. Cash, silverware, gold.
  3. Real property, developed or underdeveloped,  part or entire ownership.
  4. Personal property, normally durable goods, such as cattle, bicycle, sewing machine, agricultural machinery.

E. Time to Give and Receive:

In most cultures the marital gift is exchanged immediately before and after the marriage ceremonies. In some regions, the following also is customary:

  1. Gifts to the bride’s family at the first inquiry re marriage.
  2. Gifts to the bride and her family at the first meeting of the groom and bride families.
  3. Mutual gifts at the engagement announcement and ceremony.
  4. Mutual gifts at the pre-wedding ceremonies.
  5. Present and future gifts to the bride at the time of solemnization.
  6. Gift of bride to her new family home.
  7. Mutual gifts at the wedding celebration.
  8. Gift to the bride after consummation of marriage.
  9. Husband’s labor in bride’s family farm after the marriage.

F. Now and Future Gifts:

The marital gift may also be divided based on the time of collection of the marital gift.  In some cultures, the entire gift must be satisfied in advance of the marriage, others at the time of divorce and many in between. They may be categorized as follows:

  1. Present/token gift.
  2. Lump sum or installment gifts.
  3. Upon demand gifts.
  4. Collectable at divorce gifts.
  5. Collectible at death gifts.

G. Unidentified Marital Gift :

Probably the most confusing marital gifts are those which are culturally required but for some reason are not identified in the marital agreements. These gifts normally become due and payable upon cancellation, dissolution of marriage or death of the groom. The amount of gift is decided based on the age, education, wealth, physical appearance, similar gifts paid/received  by the persons in the same/similar class, within the family, tribe, region, or locality. Parol evidence will be used to establish type, amount, and time necessary to satisfy the obligation.

H. Marital Gifts in California Family Law Code:

California Family Code addresses the issue of marital gifts within the confinements of the Uniform Pre-Marital Agreement Act[vii](UMPA).  Family Code Section 1612 provides that the future spouses may enter into any property agreement, conditional waiver of spousal support, and choice of law selection. The agreement, however, must not violate the public policy, or allow a  criminally prohibited  conduct. The UMPA is silent as to its application to the marriage agreements entered into outside of the United States, but one California Court applied the UMPA’s  predecessor,  former Civil Code section 5134, to a marriage contract entered in Egypt[viii]. This approach seems to be inconsistent with the requirements of California Civil Code Section 1646, which requires, absent express provision in the agreement, it be interpreted and enforced according to the law and usage of the place where it is made [ix] .

I. Marital Gifts in California Case Law:

Two California cases have addressed the issue of marital gift, both involving marriages according to the Islamic law in foreign lands.

In IRMO Dajani (1988) 204 Cal.App.3d 1387, the California Court of Appeal, Fourth District, found that promise of the husband, a Jordanian living in California, to pay $1,700.00 upon divorce  to his Jordanian wife was in violation  of the California public policy. In reaching this decision, the appellate court, followed a decision of the California Court of Appeal, Sixth District, in IRMO Noghrey (1985) 204 Cal.App.3d 1387. In Noghrey, the appellate court reversed  Judgment of the trial court which allowed enforcement of the marital gift between two Jewish-Iranians,  comprised of husband’s house and $500,000.00, in a dissolution proceeding commenced by the wife 8 (eight) months after the marriage.

In reaching the decision, the Sixth District Court of Appeal relied on a 1984 Ohio Supreme Court case [x], which confirmed validity of the alimony in the State of Ohio in a pre-nuptial agreement provided that: (1) The agreement is entered freely, with full disclosure or knowledge to the prospective spouse’s property; and (2) does not promote profiteering by divorce. However, the logic of Dajani was placed in serious question fifteen (15) years later by the California Second Appellate District, which found that “Dajani was wrongly decided.” and “A dowry worth only $1,700, payable upon dissolution, is insufficient to seriously jeopardize a viable marriage[xi].

The second California Case dealing with the premarital gift, was In IRMO Shaban (2001) 88 Cal.App.4th 398, decided by the same Third Division, in the California Court of Appeal, Fourth District. The case involved interpretation of an Egyptian marriage certificate signed by husband and his future father-in-law under Egyptian Sharia Law in 1974. The trial Court did not recognize the document as a pre-marital agreement, and applied the California law in division of assets and determination of spousal support. The appellate court in affirming the judgment found that the “prenuptial agreements” under the California law is a statute of frauds provision, and the Egyptian marriage agreement was “hopelessly uncertain”[xii].
Unfortunately, neither the trial court, nor the appellate court’s decision, provides any basis for applying the California Parol Evidence  Rule and the Statute of Frauds to an agreement entered in Egypt, nearly 15 years prior to entering this state. Ruling of Shaban does not provide any directive as to how a California trial court may deviate from the requirement of California Civil Code Section 1646, which dictates, absent a contradicting provision, an out of state agreement must be examined under the law of the jurisdiction it was made.

J. Marital Gifts in Other States:

Detailed review of the status and enforceability of marital gifts in other States is beyond the scope and space of this writing. In summary, other jurisdictions may be divided into the following categories:

  1. Jurisdictions which treat a marital gift, regardless of its cultural/religious overtone, as an agreement, to be analyzed and enforced according to the contract law.
  2. Jurisdictions  which treat a marital gift, with cultural/religious overtone, as an unenforceable First Amendment issue.
  3. Jurisdictions  which treat a marital gift an unenforceable Public Policy issue.

K. Conclusion:

Marital gifts are diverse and complicated issues. Cultural belief/legal power of a disgruntled spouse and/or her/his family in many jurisdictions may harm an ex-spouse for the unpaid marital gift. Long lasting shame, stigma, and financial loss resulting from a divorce,  makes identification and disposal of the marital gifts in culturally sensitive marriage a very serious and necessary issue. This is especially true when the marriage is entered into outside of California, in a jurisdiction where does not recognize a no-fault divorce, mandatory child support, discretionary spousal support, and equal division of the assets acquired during the marriage. The last thing a California family attorney needs is a call from overseas by a jailed ex-client, questioning why the martial settlement agreement or judgment did not resolve his ex-spouse’s claim over martial gift.

Like marriage itself, the martial gifts reflect a vast, deep and long lasting value emanating from deep seated cultural, traditional and religious values in many societies. Neither immigration to the United States, nor residing in California, by and in itself, eliminates the significance of these values. California Family Code and the Case law are silent in addressing the rights and obligations of California litigants as to their executory  marital gifts. Yet this silence does not diminish our responsibility as family law attorneys to recognize the significance of the marital gifts and address them in the Court in a timely and proper manner.


. A marriage is culturally sensitive, if it reaches beyond the formalities created by the law of the land to impose and enforce rules and regulations in creation and maintenance of a marital relationship. Many times, the cultural aspects of marriage has root in the real or perceived teachings of a specific religion, which responds to need of its followers in a specific geographical location under a specific political or social environment. Many times culturally sensitive  marriages reflect belonging and commitment of  the parties and their immediate relatives to certain geographical area, language,  social or political identification of the parties.

. Such as debtor’s jail.

. See “ Zawahiri v. Alwattar, 2008 Ohio 3473 (Ohio App. 7/10/2008), 2008 Ohio 3473 (Ohio App., 2008) at page 11:  “At the conclusion of its discussion of the mahr provision, the trial court stated: [Zawahiri] clearly agreed to undertake a duty to pay the mahr when he signed the Islamic marriage contract. Although not enforceable by this court, the court is hopeful [Alwattar] will be able to enforce the provision and obtain relief through other religious means. For example, according to the testimony, the husband could be jailed in Syria if he has not paid the dowry”….. By making the above statement, the trial court merely expressed a hope that Alwattar could avail herself of a religious remedy to rectify a wrong that the court itself could not correct.”

. See IRMO Dajani (1986) 204 Cal.App.3d 1387, at 1388: “The primary issue at trial was husband’s obligation, per the terms of the foreign proxy marriage contract, to pay wife’s dowry. “

. Id, Foot Note 2: “Black’s Law Dictionary explains, ” ‘Dower,’ in modern use, is distinguished from ‘dowry.’ The former is a provision for a widow on her husband’s death; the latter is a bride’s portion on her marriage. Wendler v. Lambeth [1901] 163 Mo. 428, 63 S.W. 684.” (Black’s Law Dict. (4th ed. 1951) p. 581, col. 1.) The “estate[ ] of dower … [is] not recognized.” (Prob.Code, § 6412; but see Civ.Code, § 5312, subd. (a)(3), effective Jan. 1, 1986, which permits parties to a premarital agreement to contract with respect to “[t]he disposition of property upon … death….”)”

. For example:

  1. Bride’s price: A gift of cash from groom to bride’s parents.
  2. Bride wealth (Jahaz): Cash or property by bride’s parents to the bride for the purpose of wedding.
  3. Milk price: A gift of cash by groom to bride’s mother.
  4. Bed’s Gift: A gift by groom’s mother to the bride post consummation of the marriage.
  5. Bride’s Service: Gift of labor from groom to bride’s parents, before or after marriage.
  6. Bride’s wardrobe: Bride’s bed set and furniture to take to her new house.

. Family Code, Section 1610, et seq.

. See IRMO Shaban (2001) 88 Cal.App.4th 398, at 404: “The current incarnation of that statute is Family Code section 1611 (“A premarital agreement shall be in writing and signed by both parties.”). At the time of Ahmad and Sherifa’s marriage [in Egypt], it was former Civil Code section 5134 (“All contracts for marriage settlements must be in writing and executed and acknowledged or proved in like manner as a grant of land is required to be executed and acknowledged or proved” [Stats. 1969, ch. 1608, § 8, p. 3343]).”

. See HAMBRECHT & QUIST VENTURE PARTNERS et al.,  v. AMERICAN  MEDICAL INTERNATIONAL, INC. (1995) 38 Cal.App.4th 1532, at 1540 “In the absence of a choice‑of‑law provision, Civil Code section 1646 requires that a contract “be interpreted according to the law and usage of the place where it is to be performed; or, if [the contract] does not indicate a place of performance, according to the law and usage of the place where it is made.” .

. Gross v. Gross (1984) 11 Ohio St.3d 99.

. IRMO Bellio (2003) 105 Cal. App. 4th 630, at 634.

. IRMO Shaban (2001) 88 Cal.App.4th 398, at 406.

1 comment to CULTURAL GIFTS IN THE FAMILY COURTS

  • PRJO

    Phantom Retired Judicial officer:
    Cultural Differences And Misunderstanding
    Underlies Many Decisions On Premarital Agreements

    [Admin: The following Comment by Hon. Phantom Retired Judicial Officer is in Response to to article by Abbas Hadjian, Esq., Cultural Gifts In The family Courts, published on Culture Counts June 26, 2010]

    I’m reading your article now. Consider this a compilation of early comments, not a thorough or deeply considered reaction.

    I pick nits. California’s Uniform Premarital Agreement Act, FC Sections 1600-1617, (i) has no hyphen and (ii) ought to be called “UPAA” for short, not” UMPA.” Note that the UPAA was first adopted by California effective January 1, 1986 (see footnote 1 of IRMO Bellio (2003), which says this). Query whether any of your case law discussion applies to agreements executed prior to that date; such agreements are not covered by the UPAA in California. I haven’t thought my way through this, but let me throw out an idea.

    The tone of your article conveys an impression of disappointment that all premarital agreements, and possibly post-marital agreements made at the time of the marriage, are not always enforceable. This impression may or may not be fair. Only you can tell me your actual view on this issue. In that connection, I throw out the idea that while cultural difference and cultural misunderstanding may underlie some or even many of the decisions in this area, this may be less than solely a manifestation of cultural differences than general hostility to premarital agreements.

    I have the impression–I haven’t reviewed any of those cases before writing this email–why spoil a top-of-mind hypothesis by actually gathering facts?–that many cases holding that a prenuptial agreement is not enforceable do not have a discernible “cultural difference” component, i.e., the parties are not foreigners and are not members of a particular race, religion, nationality or ethnicity which are discernibly different from the majority culture. (How we define the majority culture and who is part of it is an interesting topic in its own right, and I don’t propose to define it precisely here.

    My working model in my head consists of folks who could be the subject of Norman Rockwell Saturday Evening Post covers, but that model is really subject to serious revision.) If my impression is correct, appellate courts just don’t much like premarital agreements. Legislatures have responded by passing the Uniform Premarital Agreement Act, which in California is at Family Code Sections 1600-1617, or other acts dealing with the content and enforceability of premarital agreements, and by doing so tells courts that such agreements are permissible. The result has been more enforcement by courts of prenuptial agreements, but still courts are quick to find reasons not to enforce them.

    This might be understood as holding that such agreements will not be enforced if they appear to be either promotive of divorce or otherwise offensive to some public policy, and cultural differences simply don’t explain all the cases in which prenuptial agreements are held not enforceable. (Again, treat all this as hypothetical, a thesis to be examined and either affirmed, rejected or modified, depending on what the research reveals.)

    Heck, even the California Legislature is wary of such agreements. See FC 1612(c), which contains the very strange and problematic provision that a waiver of spousals support is not enforceable if that provision is unconscionable at the time of enforcement. So far as I know, except for this provision, hundreds of years of contract law hold that unconscionability of a contract is determined at the time of creation of the contract, not at the later time–and sometimes much later time–when a party seeks to enforce the contract. It’s not really the 9/19/2010 Untitled Document 1/2 subject of this email, but this provision makes it impossible to assure a client that he or she has effectively obtained a waiver of the right of the spouse-to-be to seek spousal support from the client in the event that the marriage ends in a dissolution rather than through the death of a spouse.

    I suspect that the biggest problem with what you call executory cultural gifts is that they may very well be perceived as promotive of divorce. Noghrey is exactly that. That’s the problem with any agreement that conditions payment on divorce. Indeed, that might be a problem with provisions that make spousal support
    begin only upon divorce, as contrasted, say, with an agreement that one spouse will pay $X a year to the other spouse whether they remain married or not (and I suppose you could successfully provide that expenditures during the marriage on the other spouse of at least $X will satisfy this obligation). And indeed any cliff vesting provisions might be promotive of divorce. I seem to recall Donald Trump’s premarital agreement with Marla Trump gave her a big chunk of change if the marriage lasted at least three years. Guess who dumped Marla in less than three years.
    On the other hand, provisions for transfers of property at the time of the wedding are not in conflict with any public policy that I know of. (Stupidity is not against public policy.) I recall supervising the videotaped signing of a prenuptial agreement in which the husband gave the wife $10 million as soon as she married him,
    unconditionally. She could divorce him the next day and the $10 million was hers. I think that provision would survive any attack.
    I suspect I agree that an agreement that called for a nominal payment at the time of dissolution of marriage ought not to be found unenforceable. $1,700 is probably a nominal amount. But query when the amount is no longer nominal. What makes an extra dollar a tipping point between nominal and enough to be deemed promotive of divorce. $1,701? $5,000? $10,000? $50,000? $100,000? I can understand why an appellate court didn’t want to get into that can of worms.
    PRJO,
    Phantom Retired Judicial Officer

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