Legal Commentary

The Legal Implications of the ?[Non-]Payment of the Remaining Cows Owed the Bride?s Father?

By Eugene Volokh

From In re Marriage of Akon & Awan, decided today by the Washington Court of Appeals:

This action involves a stepfather?s attempt to claim a presumption of paternity based on the alleged invalidity of the mother?s first marriage under Sudanese law because her first husband, the biological father, has not completed payment of his dowry.... This saga spans southern Sudan to Spokane, and features a civil war, refugees seeking to escape Africa and a failure of consideration because the war prevented payment of the remaining cows owed the bride?s father.

The cow question ? just one of many very interesting issues involved in the case ? arises because Washington law dictates that ?A marriage valid in the jurisdiction where contracted and consummated, is a valid marriage in the state of Washington.? (My sense is that all states pretty much follow this rule.) It was thus important to find out whether the ex-wife?s first marriage was valid under Sudanese law, despite the nonpayment of the dowry. Here?s the court?s analysis:

Whether the [first] marriage was valid is a closer call. The trial court recognized that there was little evidence whether the Sudanese government would recognize the marriage, but there was some. Both Aleu and Awan testified that there was a valid cultural marriage. There also was evidence that the two intended to marry, received the blessing of their local authority ? the Sultan, consummated the marriage, and substantially paid the dowry. This is sufficient evidence to support the determination that a valid cultural marriage took place.

Akon argues that the failure to complete payment invalidates the cultural marriage, he presents no law on that topic. [An earlier precedent] appears to allow parties to testify to the state of the law in a foreign jurisdiction. [Footnote: While proof of a foreign statute or other law would be preferable, we do not see that as an essential requirement, particularly given the state of affairs in the region where the 1994 marriage took place....] Aleu and Awan testified that the incomplete payment did not invalidate the cultural marriage. The trial court therefore had an evidentiary basis for concluding that this marriage was valid in Sudan.

Full post as published by The Volokh Conspiracy on February 10, 2011 (boomark / email).