Brown & Brown, Brooklyn (Harry L. Brown of counsel), for defendant.
Slade, Albright & Newman L. L. P., New York City (Louis I. Newman of counsel), for plaintiff.
Joseph Covello, J.
In this matrimonial action the defendant, Jacques Amsellem, moves for an order pursuant to CPLR 3211 to dismiss the above-captioned action as he alleges that this Court lacks subject matter jurisdiction and for such other and further relief
as to this Court may be deemed just and proper in the premises. The plaintiff, Sofia Amsellem, also known as Sofia Cohen, opposes the motion.
The parties were married in an Orthodox Jewish religious ceremony performed by Rabbi Elie Elbaz on November 6, 1991 in France. Rabbi Elie Elbaz, a local New York rabbi, was flown by the parties to France to perform their marriage ceremony. Since that marriage ceremony was performed the parties have resided in New York as husband and wife up until the commencement of this action. The parties have had five children together. Their children, Rachel Amsellem, born on December 26, 1992, Mazal-Tov Stephanie Amsellem, born on June 22, 1994, Annelle Esther Amsellem, born on September 27, 1995, Shlomo Salomon Amsellem, born on October 15, 1997 and Eliyahou Eli Yah Amsellem, born on August 15, 1999, were all born in New York.
The defendant asserts that this Court lacks subject matter jurisdiction over the matrimonial action because the parties were not legally married in accordance with French law. The defendant alleges that pursuant to French law the parties' marriage was not properly executed and is void because only a religious marriage ceremony was conducted without the required civil ceremony being conducted.
In support of his motion the defendant submitted the following documents: (1) a communication from the Beth Din of Paris, France, in French with an English translation in which the private secretary to the Grand Rabbi of Paris certified that a marriage can be performed in a Paris synagogue, only by a rabbi recognized by the Consistory of Paris; (2) a declaration regarding Civil and Religious Marriages by Robert Elmaleh, Attorney of Law, Paris, France, dated April 12, 2001 and a copy of the French law (18 Germinal Year XI [Apr. 8, 1803]) (in French with the English translation) regarding the performance of marriages. Those documents set forth that in France a civil marriage is to be performed prior to any religious marriage and that a religious minister who performs a religious ceremony prior to a civil marriage would be penalized under article 433-21 of the New Penal Code. The notice from the Marriage Office of the Jewish Consistory of Paris, France, sets forth that a civil marriage must take place before a religious ceremony and cannot be performed on a Saturday or a religious holiday and that a ritual bath is obligatory for future brides.
Plaintiff in her affirmation in opposition states that " when it serves the defendant's interest so as to avoid the implications
of equitable distribution, he now claims that there was no valid marriage." The plaintiff also asserts that the parties' marriage is valid because: (1) the marriage between the parties is in compliance with New York's Domestic Relations Law; (2) the parties have resided in New York for almost 10 years as husband and wife; (3) the parties have had five children together; (4) the parties have filed joint Federal and State tax returns; (5) the defendant provided a family plan of medical insurance for the plaintiff and the parties' children through April 30, 2001; and (6) the defendant has held himself out to various governmental, quasi-governmental and nongovernmental agencies as being married.
The defendant is correct in his contention that this Court cannot dissolve a marriage that does not exist. However, the defendant has failed to overcome the strong presumption of marriage. " Where persons live and cohabit as husband and wife, and are reputed to be such, a presumption arises that they have been legally married, and this presumption, especially in a case involving legitimacy, can be rebutted only by the most cogent and satisfactory evidence" (Matter of Lowney,152 A.D.2d 574, 575 [2d Dept. 1989]). That court quoted Judge Andrews from the often-cited case of Hynes v McDermott (91 N.Y. 451 ) wherein he stated, " The presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; ...