Recognition of Hindu Divorce in New York State

By Gabriel Sawma Sunday, Aug. 21, 2011 at 3:03
PM

gabrielsawma@yahoo.com
(609) 915-2237

A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of 1955 may or may not be recognized and enforced in the State of New York. Such recognition, when it happens, is based on the concept of
‘comity’ in private international law.

Prof. Gabriel Sawma

Comity in Private International Law A Hindu divorce decree obtained in India in accordance with Hindu Marriage Act of
1955 may or may not be recognized and enforced in the State of New York. Such
recognition, when it happens, is based on the concept of ‘comity’ in private
international law. The doctrine of comity is an acceptable solution to the
problem of both respecting territorial sovereignty of the state in which the
foreign judgment is sought to be recognized and enforced and the legal principle
of private international law where no judgments would have any extraterritorial
effect outside the countries where they were issued.
It is important to note that the conception of comity is not an obligation of any state to apply foreign laws. New York along with all other states, apply foreign law as a matter of
international courtesy and good will. Therefore, the application of a foreign
divorce decree would only be declined when the interests of New York State or
its citizens and residents are impaired.
The definition of comity was provided by the U.S. Supreme Court in Hilton v. Guyot in 1895. It laid down in a case on the recognition and enforcement of a French judgment in the United States. The U.S. Supreme Court, in defining the doctrine of comity, stated that
“Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor a mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to rights of its own citizens or of other persons who are under the protection of its laws.” (See Hilton v. Guyot,
Supreme Court of the United States, 1895, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95).
Personal Jurisdiction
The state of New York may recognize a Hindu divorce decree from India provided that the Indian court has personal jurisdiction on the couple seeking divorce. In a recent case, a wife,
resident of Michigan, USA, obtained a divorce from U.S. court. Her husband went back to India and filed for a divorce in an Indian court. The judge of the High Court in Pune, India rejected his petition on the ground that the husband’s domicile is in the U.S., not India. The court ruled that “The man cannot confer jurisdiction on the court of Pune where the couple never stayed together for any length of time in their own matrimonial home (i.e., India), they having had their matrimonial home in the U.S. The HMA [Hindu Marriage Act] itself does not apply to the couple conse-qu-ent upon their domicile in the US and also because
the rights between the parties have been settled by a judgment conclusive between them.” (See The Times of India, March 6, 2010). The husband in this case, presented to High Court in Pune, documents showing that he was domiciled in India; he also submitted his ration card issued in 2001, his driving license obtained in 1999, his 1995 voter identity card and passport with validity up to 2019. But the court was not satisfied with the documents: “None of these documents shows his intention to reside in India permanently; his Green Card shows he intends to stay in the US…It is easy to see that both parties have had the intention of making the US their permanent home even prior to their marriage. Since their parents reside in India, they came to India to be married as per Hindu rites.” (Id.)Domiciliary is an important factor in jurisdiction over divorce in India. Under the Indian Divorce Act, 1969, domicile has great importance. A petition in any matrimonial case may be presented to the District Court or High Court on the basis of residence of the parties within
that jurisdiction (or that the parties last resided within the jurisdiction of the court) or for dissolution of the marriage the parties are domiciled in India at the time of the presentation of the petition.
Recognition and Enforcement of Foreign Divorce in the State of New York
In one case, the husband went to Mexico, not for the purpose of residing there, but for
obtaining a divorce decree. The husband remained at all times a resident and domiciliary of New York State to which he returned promptly and where he continued to reside and practice his profession, and that he was physically present since his return from Mexico, except for vacation or business trips. In this case the court ruled that the unilateral Mexican divorce without the consent of his wife was a “complete nullity.” (Lamb v. Lamb, 61 Misc.2d 1032 – NY: Family Court, 1969).In another case, the Court of Appeals ruled that “In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign divorce decree.”(See Perrin v. Perrin, 408F.2d 107 – Court of Appeals, 3rd Circuit, 1969). If it appears that neither party to the divorce decree was domiciled in India and the arrangements the parties make to obtain it were collusive and contrary to the public policy of New York in respect to the dissolution of marriage, New York Courts would
consider that divorce decree to be a nullity.Gabriel Sawma is a lawyer with foreign background, member of the Lebanese Bar Association of Beirut; Associate Member of the N.Y. State Bar Association; Associate Member of the American Bar Association. Professor of Middle East Constitutional Law and
Middle East Studies. Expert consultant on recognition and enforcement of foreign
divorce in the U.S., http://www.islamicdivorceinusa.com/

Editor in chief of International Law Blog: http://www.gabrielsawma.blogspot.com
Tel. (609) 915-2237.
Disclaimer: While every effort has been made to ensure the accuracy of this
publication, it is not intended to provide legal advice as individual situations
will differ and should be discussed with an expert and/or lawyer. For specific
technical or legal advice on the information provided and related topics, please
contact the author.

Islamic Divorce in New York State

August 23, 2011     By


Muslims residing in the State of New York are in a dual situation when it comes to the implementation of family law. On one hand, they are governed by the religious law of Islam, known as Islamic sharia, and on the other hand, the secular family law of the state of New York. To Muslims, the family law of Islam mandates that marriage and divorce among Muslims should be done in accordance with the Islamic sharia, regardless of whether they live in an Islamic or secular country. Civil divorce decrees obtained by secular courts are not recognized by Islamic sharia.Under Islamic law, a Muslim man may marry a non-Muslim woman, whereas a Muslim woman is prohibited from marrying non-Muslim man. Under these rules, a non-Muslim woman marrying a Muslim man in compliance with Islamic sharia is subject to the rules of Islam in the areas of divorce, child custody and inheritance. In other words, a non-Muslim woman who gets married to a Muslim man in accordance with Islamic sharia, loses custody of her children in case of divorce, or in case the husband dies. Consequently, a non-Muslim woman marrying to a Muslim man in Sunni Islam, is forced, under the rules of Islamic sharia, to surrender custody of her son when he reaches the age of seven, and her daughter at the age of nine. She is also prohibited from inheritance. These rules are applied throughout Muslim countries with a system of sharia-based family law in place.

 

Marriage Contracts in Islamic Sharia
Under the rules of Islamic sharia, the marriage contract should include: (1) names and addresses of the couple; (2) name of the guardian of the bride; (3) names and addresses of two male witnesses; and (4) the amount of ‘mahr’, or a promise of money or its equivalent to be given by the husband to the bride. Like any other civil contracts, Islamic marriage contract should be in the form of offer and acceptance by the parties.

Contrary to the popular notion that mahr is dowry; it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future bride. Others call it a ‘gift’; it is not a ‘gift’ either, because mahr is an obligation on the husband and is mandated by the Quran. The Quran calls it ‘sadaq’ (Quran 4:4). If no stipulation of mahr is provided in the marriage contract, the marriage remains legal and in effect; in such a situation, the “qadi” (judge) will determine the amount of mahr, which remains a property of the wife alone. The amount of mahr can be paid partially: up-front (Arabic, muqaddam), and deferred until divorce or death of the husband (Arabic, mu’akhar), or it may be prepaid in full before the consummation of the marriage.

 

Legal Status of the Mahr Provision in Islamic Law
The most important feature of the mahr provision is that one party makes an offer and the other can accept or refuse to accept. It is a financial settlement between the couple in case a divorce occurs or the husband dies. Although, Muslim women do not personally bargain for the mahr agreements, and, in almost all of the divorce cases that I have seen so far, in the Middle East, Europe and the United States, Islamic marriage agreements involving mahr are negotiated by the representative (Arabic Wali) of the bride.

In the State of New York, an Islamic marriage contract involving mahr may be considered premarital agreement for a divorce settlement. In legal terms, this is called a concurrence of wills or meeting of the minds of the future husband and his future wife. This also means that each party from an objective perspective engaged in conduct manifesting their acceptance, and a contract was formed when both parties met such a requirement.

The basic rule is that a premarital contract will be interpreted and enforced in accordance with the law of the state in which it was entered into. Thus an Islamic marriage contract signed in Egypt according to the Egyptian law for example, must be interpreted according to the law of Egypt. The Restatement of the Law Second Conflict of Laws 3d, Chapter 8, Contracts, is clear about the law for the state chosen by the parties to a contract. The text of the Restatement reads: “(1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issues is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.”

Looking at both academic and case studies in this area of law, this article points the reader in the direction of the current trends in the treatment of mahr in New York State and to address Islamic family law issues relevant to New York State law and the working of its legal system. The mahr provision in an Islamic marriage contract has been interpreted differently in other states. For more information on treatment of mahr in other states, the individual should seek legal advice.

 

Interpretation of the Mahr in New York State
Muslim men and women assert their Islamic legal rights in American family courts; as a result, Islamic sharia governing their marriages and divorces becomes an important and complicated part of the American legal landscape. This leads to a discussion of court cases involving Muslim marriage and divorce litigations in the State of New York, as well as whether New York courts will enforce the terms of Muslim marriage contracts, mainly the mahr provision.

New York courts have jurisdiction over divorce cases within its territory, with specific focus on premarital contract structured in accordance with foreign laws. And, various state courts have found no public policy prohibition in enforcing such agreements. In New York, a mahr agreement may be interpreted within the context of a contractual obligation.

In Aziz v. Aziz, the couple entered into a mahr agreement which required the payment of $5,032, with $32 advanced and $5,000 deferred until divorce. The New York court ruled that the contract conformed to New York’s contract requirements, and that “its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.” (See Aziz v. Aziz, N.Y.S.2d at 124).

In this case, the husband argued that the mahr agreement provided in the Islamic marriage contract could not be enforced because it was a religious document and was not enforceable as a contract. The wife responded by stating that although the mahr is a religious stipulation; its secular terms can be properly enforced by the court. The court agreed with the wife and ordered the husband to pay the deferred mahr. The court found that the mahr agreement complied with the necessary statutory requirements to be recognized and enforceable as a premarital agreement and held that the secular terms of the mahr agreement were “enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.” The court stated that the mahr agreed to by the couple constituted a secular debt of $5,000 and ordered the husband to fulfill the terms of the agreement.

The case was based entirely on another New York of Appeals case of Avitzur v. Avitzur involving a Jewish Ketubah in which a Jewish woman sued for specific performance to force her ex-husband to appear before a Beth Din (Jewish Court). Under Jewish Law, only a man can grant a divorce, or “Get”. Until he does, the woman cannot remarry within the Jewish faith to anybody. Her children will then be considered illegitimate. In order that a “Get” may be obtained, both husband and wife have to appear before the Beth Din. The husband refused to appear, leaving the woman in a state of marital limbo, making her an “agunah.” The New York Court of Appeals found that the Jewish ketubah constituted a valid premarital agreement that could be enforced despite the religious underpinnings of the agreement.

 

Conclusion
As the second largest religion, and with the number of Muslims immigrating to the United State on the rise, American courts are more frequently looking into Islamic divorce litigations between Muslim couples. Out of respect to Islamic law and culture, American courts attempt to apply certain provisions from Islamic sharia, such as the mahr contract in divorce cases involving Muslim couples. By doing so, American courts risk involving their arguments with gender and economic inequalities between Muslim men and women, leaving Muslim women destitute. The application of mahr agreements in Islamic divorce in the United States prevents women from exercising their rights to equitable distribution of marital assets upon divorce. If the courts need to extend their respect to Islamic law in divorce situations, they should look into whether the wife had a choice in signing the mahr agreement. Muslim women do not personally bargain for the mahr agreements, and, in almost all of the divorce cases that I have seen so far, in the Middle East, Europe and the United States, the Islamic marriage agreements involving mahr are negotiated by the representative (Arabic Wali) of the bride. Other states do not regard the mahr to be a premarital contract. Individuals seeking information on the treatment of mahr by other states should seek legal advice from a competent attorney.

 

ABOUT THE AUTHOR:  Gabriel Sawma, Esq.
Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic sharia; Expert consultant on Islamic and Hindu divorce in U.S. courts; Member of the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association, and Associate Member of the American Bar Association; Editor in chief of International Law blog: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq., Expert Consultant
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

The Khul’ Divorce in Egypt

U.S. | Indymedia

 

by Gabriel Sawma ( gabrielsawma [at] yahoo.com )
Friday May 13th, 2011 8:10 AM

Under the rules of divorce in Islamic sharia, a husband has the prerogative right to divorce his wife any time, any place, with or without any reason. Under certain conditions, the wife may request from the religious judge a judicial divorce in case of ‘harm’ or maltreatment (darar), as stated by the Maliki School of jurisprudence.

 

Based on the wide interpretation of the Maliki School, the wife may seek divorce if she can convince the judge that she is suffering a ‘harm’ from her husband, a provision that is not allowed by the Islamic Hanafi School of law.In general terms, Islamic sharia allows the wife to seek divorce under the following conditions: (1) impotency; if the husband is unable to consummate the marriage; (2) his apostasy from Islam; (3) his imprisonment for a long period of time; and (4) if he contracts an incurable skin disease.The additional ‘harm’ as a cause for divorce in Maliki interpretation of sharia, allows the wife to bring evidence to the judge showing that the husband used systematic maltreatment, and is unable to provide maintenance to her.Such provisions in Islamic sharia created hardship for thousands of women who were seeking divorce, but unable to prove the ‘harm’ factor to the satisfaction of the judge. Women were unable to get out of their un-happy marriages because their husbands refused to consent to the divorce, and the judges were not persuaded with the evidence presented by the women. To remedy this situation, the Egyptian government enacted a law allowing judges to approve the divorce through a process known as Khul’, or repudiation, without the consent of the husband.Khul’ was practiced in early Islamic period; it allows the wife to obtain a final divorce by means of a financial settlement paid by her to the husband in compensation, without having to prove of harm or maltreatment. Frequently, under the terms of Khul’, the wife is required to pay back all or part of the “mahr”, which is the amount of money or objects of value that the husband gave his wife when the marriage contract was signed. Also, she has to relinquish her right to the amount of “mahr” he promised to give her in the future. In addition, the husband must agree to the Khul’. In other words, should the husband refuse to consent to the Khul’, the wife will be unable to get divorce. Faced with that difficulty, the legislators in Egypt enacted a law in which the judge was given authority to separate the married couple based on Khul’ without the approval of the husband and without having to prove maltreatment.

On January 2000, former President, Hosni Mubarak of Egypt, issued in the Official Gazette [al-Jaridah al-Rassmiyyah] Law No.1, of 2000, granting women the right to file for a “no-fault” divorce (Khul’) on the basis of “incompatibility,” without having to provide evidence of harm.  Under the provisions of the new law, the wife may obtain a definitive judicial separation from her husband if she desires so; the only condition she has to satisfy is to forfeit her rights to alimony and her deferred “mahr” (mu’akhar) as well as repay her advanced “mahr” (muqaddam).

First section of Article 20 of the new law provides the following: “A married couple may mutually agree to separation (al-Khul’); however, if they do not agree and the wife sues demanding it [i.e., the separation], and separates herself from her husband (khala’at zawjaha) by forfeiting all her financial legal rights, and restores to him the “mahr’ he gave to her, then the court is to divorce her from him (tatliqiha ‘alayhi).”

Before the judge rules on Khul’, he has to order the couple to undergo a process of reconciliation, and after asking two mediators [hukkam] to pursue conciliation efforts between them for a period that may not exceed three months; and after the wife decides explicitly [tuqarrir sarahatan] that she abhors living with her husband and there is no way to continue married life between them, and that she is afraid to transgress God’s limits of this abhorrence.

It is important to note here that while a woman is required to submit to burdensome and time-consuming court-ordered conciliation, men seeking divorce, on the other hand, are never required to make any efforts at reconciliation. The reconciliation process is rooted in the biased notion that women are not capable of making rational decisions on issues related to divorce. According to one prosecutor in Cairo, mediation was necessary because “a woman may be hasty in filing for a divorce and may not have a strong keenness in keeping the family together. The court has to play this role and intervene. Men are more wise and rationale than women. A woman’s emotions can overcome her rationality”. (See Divorced from Justice: woman’s unequal access to divorce in Egypt, Google eBook, p.28).

Section 3 of Article 20 states that the separation order of the judge is “an irrevocable divorce [talaq ba’in]”; and the court’s decision is not subject to any form of appeal. Article 20 of the Egyptian law of 2000 does not accord legal weight to the husband’s consent to the terms of Khul’ divorce. This is based on the Sunnah literature, embodied in the Islamic canonical collections of the sayings and deeds of the Prophet of Islam, and especially the collection of Sahih al-Bukhari, which contain an authenticated version of Muhammad’s handling of the Habiba separation case in which he ruled to separate her from her husband without asking the husband’s permission.

Although Article 20 of the Egyptian Personal Status Law, which grants women the right of Khul’ is considered a significant accomplishment by women’s rights activists, it is harmful to women’s financial rights because the wife is forced to give up her mahr, alimony and other gifts provided by the husband during their marriage. Poor women, particularly in rural areas, suffer most of this financial loss.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

An authorization to republish this article is hereby granted by the author provided that author’s name is attached to the article.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts: http://www.islamicdivorceinusa.com

Editor in chief of International Law blog: http://gabrielsawma.blogspot.com/2010/01/khul-divorce-in-egypt.html.

Lecturer on Islamic economics, http://www.islamiceconomics101.com;

Email: gabrielsawma [at] yahoo.com; Tel. (609) 915-2237.

Islamic Women Divorce Laws in Egypt

newswire article commentary united states 02.Jun.2011 16:36

gender & sexuality | human & civil rights

author: Gabriel Sawma       e-mail:e-mail: gabrielsawma@yahoo.com

 

Under the rules of Islamic sharia, the husband can end his marriage unilaterally by simply announcing the words “I divorce my wife” or “I divorce you” three times. He does not need to justify his decision, nor explain any reason for his divorce and never need to enter a courtroom to end his marriage. Egyptian Muslim women however are denied equal right to divorce. They are trapped in unwanted marriages or left begging for a divorce that can take years to obtain and leave them destitute.

 

Egypt’s Islamic family law of divorce is established in five legislations: (1) the law of 1920; (2) the law of 1929; the law of 1979; (4) the law of 1985; and (5) the law of 2000.The Divorce Laws of 1920 & 1929
The 1920 law deals with divorce and financial support under which a woman might be eligible to seek a divorce from her husband, The law restricted woman’s right to divorce to  lack of husband’s economic support, such as desertion, disappearance, and imprisonment. Article 1 of the Law of 1920 provides that maintenance was a cumulative debt owed by the husband to his wife, it starts from the first time the husband failed to support his wife. Article 2 decreed the wife’s maintenance debt should be computed from the date of her divorce. Articles 4 and 5 included the husband’s failure to provide maintenance as sufficient grounds for divorce.The law of 1920 provided that if the husband is absent or imprisoned and if he does not own a property from which the wife’s maintenance can be extracted, the wife is then entitled to a divorce on the grounds of non-support. And, if the husband lives in a distant place, or his location is unknown, the wife is granted a divorce at once. Article 6 provides the husband a further period to pay the maintenance, the waiting period of the menstrual cycle (iddah). A divorce obtained from the religious court in nonsupport cases is irrevocable, however, payment of the current maintenance is a sign of good will and sufficient to reverse the divorce.The 1920 law provides that a wife may seek judicial divorce if the husband suffered from an irreversible illness such as madness, leprosy, or impotence, whether or not the illness was developed before or after the marriage. According to the law of 1920, women were not allowed to divorce if the husband claims poverty. In all these cases, women had to file for divorce in front of a male judge. At the same time, the law allowed men to exercise their divorce according to Islamic sharia by uttering the formula of divorce anywhere they choose.The law of 1929 granted women right to seek judicial divorce according to Maliki School of jurisprudence in case the husband was absent for an extended period of time. This particular cause for divorce is not included in the Hanafi doctrine. According to the Maliki School, the judge may issue a divorce decree when the husband abandons his wife for more than one year without the knowledge of his wife.

The law of 1929 stipulates that a woman whose husband had been sentenced to more than three years may seek divorce after a separation of at least one year. This complies with the Maliki doctrine.

In view of the maltreatment inflicted  by men on their wives, the Egyptian government deemed it necessary to adopt the doctrines of the Maliki School of jurisprudence to make it easy for women to get out of their dysfunctional marriages associated with maltreatment and sufferings, a doctrine which is absent from the Hanafi School. The 1929 legislation allowed judges dealing with Islamic divorce to refer to Maliki School instead of Hanafi in order to grant a woman the right to divorce her husband in case of maltreatment.

Furthermore, the Law of 1929 grants the wife the right to seek judicial divorce in case the husband suffers from serious and incurable disease, if such a cause makes life harmful to women.

Article 6 of the law decreed that where a wife’s allegation of maltreatment detrimental to the continuation of marital relationship is substantiated and reconciliation becomes impossible, the judge (qadi) shall grant the wife an irrevocable divorce. To prove the harm and bad treatment inflicted by the husband, the wife must present two witnesses, whose testimonies will be subject to the unconstrained assessment of the judge who evaluates the evidence.

If the judge rejects the wife’s petition for divorce, twice,  the law mandates that he appoints two arbitrators for the couple in accordance with the Quran injunction: “And if you fear a breach between the two, then send forth an arbiter, one from his family, another from hers” (Q. 4:35). Article 7 stipulates that if this is not possible, men acquainted with the circumstances of the case should be appointed. These men should conduct thorough investigation of the causes for the married couple and submit recommendations to the court for reconciliation if that becomes possible.

Article 10 provides that should the arbitrators indicate a deadlock, the judge is to order them to make a new attempt. If the new attempt fails, then other arbitrators are to be appointed. Article 11 stipulates that the final judgment of divorce is made after the newer attempts were fruitless and the prospect for reconciliation reached a deadlock.

The Divorce Laws of 1979 and 1985
Under Islamic sharia, a Muslim husband is entitled to marry up to four wives at a time. In 1979 President Anwar Sadat issued Decree-Law No.44 to amend the previous laws of 1920 and 1929, mainly in the area of polygamous marriages. A new provision was added requiring that the husband’s remarrying without the first wife’s (or first wives’) consent be considered harmful and that if the husband remarries a second wife, his first wife is granted a judicial divorce upon her request provided that she became aware of his second marriage within a year from the day she got to know of his remarriage. The ground for such a divorce is based on the notion of harm inflicted on the wife. This law was criticized and challenged on the basis of restriction to polygamy which is considered legal and religiously legitimate in Islam.

In 1985, the Decree-Law No.44/1979 was declared unconstitutional on the grounds that it was passed by presidential decree and presented to the Egyptian Assembly as a done-deal.  Later in the same year the Law No. 100/1985 was passed again with some revisions. It states that polygamy may be considered a possible source of harm, according to which a woman may seek judicial divorce. Under such circumstances, the wife presents the court with evidence showing the harm. The judge evaluates the evidence and issues his ruling. The law of 1985 does not prohibit the husband from having a polygamous marriage; it only offers a remedy to the first wife who would can seek divorce for damage resulting from her husband’s second marriage. A wife seeking divorce on this ground has to bring two witnesses to testify for the damage incurred. Such a procedure is lengthy and costly for the wife.

Although the law allows women to divorce for polygamy, in many instances, judges refuse to apply this provision, which they consider to be contrary to Islamic sharia and to the Constitution of Egypt. Article 2 of the Constitution of 1980 affirms that Islamic sharia is “The main source of legislation”. Accordingly, judges who opposed the new provisions in the divorce law brought up the “unconstitutionality” issue.

The Law of 2000
In 2000, a new legislation was introduced in Egypt allowing women to seek judicial divorce in a procedure called Khul’, according to which, a married woman can request a judicial divorce in exchange for monetary compensation. This procedure is well known in Islamic sharia, but Egyptian judges did not intervene in such a divorce. Islamic sharia requires that the husband consent to this type of divorce without judiciary interference. The new law grants the wife right to seek a judicial divorce through khul’ without the consent of the husband. Under such divorce, the wife declares that she detests life with her husband, that the marital status between the couple has become impossible to continue, and that she fears she will not be able to maintain the “Limits of God” due the deteriorating relationship with her husband.

As a compensation for the husband, she has to forfeit her maintenance (nafaqah), her compensation of “mahr” and agrees to return to him the amount of “mahr” that he paid her at the marriage and she must renounce the amount of the “deferred mahr” (mu’akhar). The law of 2000 made it possible for a wife to get a “no fault divorce” from the judge after a lengthy process of reconciliation. For more on the khul’ divorce in Egypt, see our piece on this topic titled: “The Khul’ Divorce in Egypt”.

Anti-Women Sentiments in the Egyptian Law
It is extremely important to note that this discussion covering the Egyptian Personal Status Laws (or family law for the Muslim community) is derived from Islamic sharia and codified by the Egyptian government.

Furthermore, Muslim women seeking divorce in Egypt are denied equal access; they are at a distinct disadvantage for no reason other than they are women. Muslim women seeking divorce in Egypt must resort to the notoriously backlogged, inefficient court system and face procedural and evidentiary hurdles that are inherently discriminatory and may take several years to get a divorce.

When men initiate divorce, they do not have to go through reconciliation process. In fact a husband can divorce his wife in as little as one hour with the local marriage registrar. The wife does not have to be informed.
When women seek divorce, including those of domestic violence, they must submit to compulsory mediation in the name of family preservation and the biased notion that women are unable to make rational decisions about family issues. Many Egyptian Muslim women, including those in abusive relationships, refrain from ever attempting to seek divorce for fear of violence and potentially life-threatening marriages.

In all other court cases in Egypt, a woman’s testimony is worth half of a man. Therefore a woman living with a violent husband would need testimonies from two men, four women, or one man and two women to prove her case.
The khul’ law of 2000 failed to address the discriminatory aspects of the divorce system. Its introduction has spared women the need to specify grounds for divorce, but forced them to give up critical financial rights in exchange for divorce, such as returning any cash or property provided by her husband under their marriage contract. This option is limited only to women with significant resource or those who are desperate for a divorce.

Recognition of Egyptian Divorce in USA
In the United States, state courts decide on divorce cases. A divorce judgment issued in Egypt is generally recognized in the United States on the basis of “comity”, provided that both parties to the divorce receive adequate notice, such as services of process and at least one of them is domiciled in Egypt at the time of the divorce.

Egyptian women citizens of the U.S. must obtain divorce decrees from Egypt as proof of divorce. The documents must be authenticated by the relevant authorities in Egypt and the U.S. This is important to women who could not remarry without presenting proof that they are free to remarry. Egyptian Muslim women who remarry without obtaining a divorce decree from Egypt, their second marriage may be considered illegal. In Islamic countries, women who remarry without divorce documents, may be labeled as adulterous, and in some countries like Pakistan, Iran, Saudi Arabia and Sudan may be subject to the death penalty by stoning under strict interpretations of Islamic sharia.

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Republishing of this article is permitted.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law and Islamic sharia. Expert consultant on Islamic divorce in U.S. courts: http://www.islamicdivorceinusa.com

Editor in chief of International Law blog, http://www.gabrielsawma.blogspot.com 

Email: gabrielsawma@yahoo.com

Tel. (609) 915-2237

Iranian Muslim Divorce in USA


     By Gabriel Sawma, Esq., Expert ConsultantExpert Consultant in Islamic Banking and Finance; Islamic Divorce in US Courts

PhoneCall Prof. Gabriel Sawma at (609) 915-2237

Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition and enforcement of the Iranian divorce in a state court.
The Family Law in Iran was codified in 1928 and 1935 as part of the Iranian Civil Code. The law set a legal age requirement for marriage, prohibiting the marriage of girls under 13 and requiring court permission for the marriage of those under 15. In 1931, a separate legislation, known as the Marriage Law (qanun-I izdivaj) was enacted; it made marriage subject to state provisions and required the registration of all marriages and divorces in civil registrars. The law of 1931 expanded the grounds on which women could initiate divorce proceedings and required such actions to be brought before civil courts rather than Islamic sharia courts.In 1967, the Family Protection Law (qanun-I himaya-I khanivada) was enacted. This law was considered a departure from the traditional Islamic sharia. It abolished the husband’s rights to extra-judicial divorce and polygamy, and increased the age of marriage to 15 for females and 18 for males. The law established special religious tribunals, headed by judges trained in modern jurisprudence. This law was criticized by Muslim clergy, calling it un-Islamic, and was regarded in violation of Islamic shria principles.In 1975, the Family Protection Law was replaced by another law carrying the same title. This law increased the minimum age of marriage from 15 to 18 for females and from 18 to 20 for males, and provided the courts with discretionary power to decide cases involving child custody, disregarding Islamic sharia provisions.

Following the Iranian revolution or 1979 under Ayatollah Khomeini (1902-1989), the Family Protection Law was annulled and replaced by the Special Civil Court Act. The new law was entirely enacted in compliance with the Shiite law of ithnai Ashar (Twelvers), the courts are empowered to deal with a whole range of family issues, including divorce. According to the new law, legal marriage for girls plummeted to nine; 15 for boys, and members of the Iranian society were strictly segregated along gender lines. Women were forced to put hijab and were not allowed to appear in public with a man who was not a husband or a direct relation such as brother, father, or son. Women could be stoned to death for adultery, which incidentally, includes being raped. But the reformists under former president, Khatami, allowed single women to study abroad and raised the legal age for marriage from nine to 13 for girls. However, a woman’s testimony in Iran is worth half that of a man in court and in the case of blood money that a murderer’s family is obliged to pay to the family of the victim, females are estimated at half the value of a male.

In mid 2007, the government of Ahmadi Najad began enforcing restrictive laws; women wearing too much make-up and not enough scarf were arrested; they were first banned from attending the country’s popular soccer matches held in public stadiums, but later, under pressure, the president allowed women to attend the games on the ground that their presence would be “morally uplifting” and make the men behave better.

The new law requires marriage and divorce to be registered with the courts; the husband has unconditional right to divorce his wife for which he needs not to give any reason and his wife is almost certain to lose custody of her children. The new law allows the wife to divorce her husband under khul’, and even then she would have to present to the court a power of attorney from the husband allowing her to divorce herself on behalf of her husband. A woman is allowed to seek divorce if her husband was insane, impotent or infertile, absent from home without reason, imprisoned, or unable to support his wife. A woman seeking divorce in Iran must provide the court with supporting evidence to get a divorce decree.

Iranian Muslim couples faced with a divorce situation in the United States, see themselves in a dual process of having to go through civil as well as religious divorce, especially for a Muslim woman; she is prohibited by Islamic sharia from marrying a non-Muslim man unless he converts. Divorced Muslim men and women must obtain an additional religious divorce decree from Muslim authorities should he or she decides to remarry in compliance with sharia; civil divorce alone is not recognized in Islam. Under Islamic sharia, a Muslim woman or man is still considered married even though she or he has obtained a civil divorce. Failure to obtain an Islamic divorce before remarrying, the woman would be considered adulterous and might risk her life if she travels to a country where stoning for adultery is still in place, such as Pakistan, Iran, Sudan, and Saudi Arabia.

American Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country. They get divorce decree by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition of the Iranian divorce in a state court. Divorce obtained in Iran is less expensive to the husband; women get the amount of “mahr” as stipulated in the marriage contract, usually less than what a U.S court may rule on, and the divorce is obtained in a short time, without having to hire an attorney. Islamic divorce does not allow women to receive compensation other than the amount of “mahr” she and her family agreed upon before her marriage.

State courts in the U.S. deal with Islamic divorce obtained overseas on the basis of “comity”, a discretionary doctrine that governs the recognition of divorce rendered by the courts of a foreign country. Although occasionally, courts in England and the United States use the term “international comity” in the meaning of general international law, the more accepted concept of this doctrine defines it as rules of courtesy or goodwill which states observe in their mutual relations without any sense of legal obligations under international law. The desire for a Muslim man to obtain divorce from Iran and have it recognized and enforced in the United States, is generally entitled to recognition if it was valid and effective in Iran, and that Iran was the residence or domicile of both parties or at least one party. In other cases, recognition in the United States of a divorce obtained in Iran will depend on the way the divorce was obtained by mail, by default, by phone, or upon the appearance of both parties. A divorce obtained in Iran should not violate U.S acheter cialis pharmacie belgique. public policy and cannot be “repugnant” to major principles of U.S. law. State courts have the sole competent to recognize or to deny recognition of a divorce decree obtained in Iran.

Although divorce recognition within the United States is dependent on the concept of domicile, an Iranian divorce may be recognized where both parties appear in the action, even in the absence of domicile. In New Hampshire, a Muslim husband secured a Lebanese divorce, based on Islamic sharia by declaring that he pronounced the divorce of his wife by saying three times “I divorce you” in her presence and by going to Lebanon to consult an attorney and sign divorce papers. The New Hampshire family court refused to recognize the Lebanese ex parte divorce. The court reasoned that the wife would be forced to bear the burdensome cost of an ex parte divorce obtained in a foreign nation where neither party is domiciled.

ABOUT THE AUTHOR:  Prof. Gabriel Sawma
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic finance. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law blog; Lecturer on Islamic economics; Author of “The Aramaic Language of the Qur’an”.

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq., Expert Consultant

More information about Gabriel Sawma, Esq., Expert Consultant

While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Pakistani Islamic Divorce in U.S. Courts

Expert Witness Directory

Pakistani Islamic Divorce in U.S. Courts


     By Gabriel Sawma, Esq., Expert ConsultantExpert Consultant in Islamic Banking and Finance; Islamic Divorce in US Courts

PhoneCall Prof. Gabriel Sawma at (609) 915-2237

Pakistani men residing in the U.S. travel to their homeland to get divorce decrees from Pakistan. They return back to the United States and seek recognition and enforcement of the Pakistani Islamic divorce decree in a state court. This article deals with the issues related to Pakistani Islamic divorce in U.S. courts.
Following the partition of Pakistan in 1947, the Islamic family law regulating marriage and divorce introduced under the British rule continued to govern until 1961 when the government of Pakistan passed the Muslim Family Law Ordinance (MFLO) to regulate divorce in that country.The Constitution of Pakistan requires all laws to be brought in accordance with the Quran and the Sunnah which constitutes the deeds and sayings of Muhammad, the prophet of Islam. Chapter 3A establishes the Federal Shariat Court. The law of marriage and divorce is governed by the rules of Islamic sharia.The law requires the age of males entering into marriage to be 18, and for females 16; there are penalties for contracting under-age marriages, though under age marriages in Pakistan remain valid regardless of the age limit. As to the guardianship issue, the law requires the application of the Hanafi School of Jurisprudence allowing a woman to contract herself in marriage without the consent of her guardian (wali).

The law requires mandatory registration for marriage; failure to register, however, does not invalidate the marriage. Legal constraints are placed on polygamy by requiring the husband to register his marriage at the local Union Council for permission and notification of existing wife/wives. The chairman of the Union Council establishes an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The law requires that the application must state whether the husband has obtained consent from the existing wife or wives. Violation to these rules is subject to fine and/or imprisonment and the husband becomes bound to make immediate payment of “mahr” to the existing wife or wives. However, if the husband does not obtain consent of his existing wife/wives, the subsequent marriage remains valid regardless of the provisions stated in the law; that is because provisions of Islamic sharia are superior to any other law in Islamic countries.

Under the rules of Islamic divorce in Pakistan, a husband can divorce his wife unilaterally, any time, in any place, and, without any obligation to state a reason for divorce. After the husband announces his divorce statement “I divorce you”, three times (triple talaq), the law mandates that the husband gives a notice in writing to the chairman of the Union Council. The chairman must forward a copy of the notice of divorce (talaq) to the wife. Non-compliance with these provisions is punishable by imprisonment and/or fine. The law requires that within thirty days of receipt of the notice of divorce, the chairman of the Union Council must establish an Arbitration Council in order to take steps to bring about reconciliation between husband and wife. If reconciliation is failed, a divorce takes effect after the expiration date of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If the wife is found pregnant during the period following the announcement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. Since the 1980s, and in view of the pressure from Islamic sharia scholars, the practice of the courts in Pakistan is that they validate a unilateral divorce by the husband (triple talaq) by pronouncing “I divorce you” three times, despite a failure to notify the Union Council; this is because Islamic sharia allows a husband to divorce his wife at will, without any provision regarding registration of divorce.

U.S. State family courts do not apply Islamic sharia because of violation of the Establishment Clause set in the U.S. Constitution. However, state courts can recognize divorce decrees issued in Pakistan on the basis of a doctrine in private international law known as “Comity”. Such recognition does not entail an obligation on State Courts to agree with the rulings of a foreign divorce judgment in Pakistan. The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a court in that country, obtains an easy divorce by just stating three times: “I divorce you”, or “I divorce my wife”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, records his divorce in Pakistan, authenticate the documents through proper channels, travels back to the United States, serves his wife with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Court.

Recognition of Pakistani Islamic divorce decree by a State court in the United States on the basis of “comity” is not mandatory. State courts may deny recognition and subsequent enforcement if the judge deems the Pakistani law is “repugnant” to a U.S. principle of law. Generally speaking, foreign divorce judgments are recognized on the basis of “comity” if the parties involved receive adequate notices, i.e., service of process, and, generally, provides one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and no prejudice towards either party, and should not violate a strong U.S. principle of law.

An Islamic divorce decree in Pakistan differs substantially with respect to property division and the “mahr” stipulation. Under Pakistani Islamic law of divorce, wives are entitled to the deferred “mahr”, which is, in most cases, much less than what a State court in the U.S. grants the wife. State courts may not recognize a Pakistani divorce decree if the cause of action on which the divorce is based is “repugnant” to “Public Policy”.

An authorization to republish this article is hereby granted by the author, provided the author’s name appears with the article.

ABOUT THE AUTHOR:  Prof. Gabriel Sawma
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law; Instructor on Islamic economics; Author of “The Aramaic Language of the Qur’an.

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq., Expert Consultant

More information about Gabriel Sawma, Esq., Expert Consultant

While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

Islamic Lebanese Divorce in U.S. Courts

Published: SEPTEMBER 18, 2011  I WWW.NEWJURIST.COM

Gabriel Sawma

Islamic Lebanese Divorce in U.S. Courts

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States? BY GABRIEL SAWMA

Historical Background

Lebanon was ruled by the Ottoman Empire from 1516 until World War One. Relief came in September 1918 when the British army moved along with the Arab forces into Palestine and opened the way for the occupation of Syria and Lebanon. At San Remo Conference held in Italy in April 1920, the Allies gave France a mandate over Greater Syria, which includes modern day Republic of Lebanon, and the Arab Republic of Syria. France then appointed General Henri Gouraud to implement the mandate provisions over the two countries.

As a result of the French mandate, the laws of Lebanon were greatly influenced by the French legal system and judiciary. Due to the fact the Lebanese population is heterogeneous; the leaders of the country developed a highly complex system of governing, whereby a complex power-sharing among the main religious communities, mainly Christians and Muslims were put into effect. By 1970, the balance of power between Christians and Muslims was threatened due to the influx of Palestinian refugees, fleeing from the 1970 civil war in Jordan; they were joined by the Lebanese elements that aligned themselves with the liberation of Palestine. That led to a civil war in 1975, which continued until 1990.

 

The Religious Court System in Lebanon

The judiciary in Lebanon is divided into four main court systems; each is spread among other subdivisions. The systems are: (1) the “qada’ Adli” or the judicial courts; (2) “Majlis al-Shura” or the administrative court system; (3) the military court system; and (4) the religious courts.

The religious court system in Lebanon is composed of the court systems of eighteen recognized denominations covering the three main religions of Christianity, Islam and Judaism. The jurisdiction of these courts is limited to family law matters and other matter defined by the law.

The Muslim courts are known as “al-Mahakim al-Shar’iyyah” for Sunni Muslims and al-Mahakin al-Ja’fariyah for Shia Muslims and another system for the Druze sect. There are also ecclesiastical courts for the different Christian denominations and a Jewish court for the Jewish community. Judgments of the Courts of First Instance are appealed to the relevant courts of Appeals for each denomination.

 

Source of the Islamic Family Law

The source of Islamic family law for the Sunni Muslims of Lebanon is based on the 1962 enactment known as The Law of the Rights of the Family, which stipulates that “the Sunni judge shall give judgment according to Hanafi doctrine, except in cases specified in the Ottoman Family Rights Act of 1917”. The Hanafi School of jurisprudence in Sunni Islam is one of four “schools of thought” or “schools of jurisprudence” (Arabic singular, madhab; plural, madhaheb) and is considered the oldest school of law. It was named after its founder, Imam Abu Hanifa (father of Hanifa) from Iraq (700 AD).

During the Ottoman Empire, the Hanafi School was the most spread and widely applied in the areas of marriage, divorce, inheritance, child custody and waqf (real estate establishments owned by the Muslim communities such as mosques, madrassas, and other religious institutions). In addition to the Hanafi doctrine, Muslims belonging to other schools of thought were allowed, under the Ottoman rule, at times, to have their cases looked at by other Islamic schools of jurisprudence, such as the Shafi’i, Hanbali or Maliki. All of them applied Islamic Sharia principles in Islamic family disputes. Sharia is the Arabic term for Islamic law. In Lebanon, the provisions of the Hanafi School are applied to Sunni Muslims in family issues involving marriage, divorce, child custody, inheritance and waqf.

 

Divorce in Lebanon under the Hanafi law

Under the Hanafi rules, a man can divorce his wife at will, any time, any place, with or without a reason, regardless of the wife’s approval or approval of the court. The husband does not have to bring any excuse for his divorce. He can do so using the “Triple Talaq” doctrine by uttering the following words three times: “You are divorced” or “my wife is divorced”, or “I divorce you” in the presence of witnesses. Such an announcement will terminate the marriage immediately.

For the purpose of documentation, the husband has to have the religious court sign off on his divorce in the presence of two male witnesses, or one male and two female witnesses. The only obligation on the husband is to pay his wife the ‘mahr’ as stipulated in the marriage contract. The ‘mahr’ consists of the amount of money or its equivalent that the husband gives his bride at the wedding or during the divorce. It can be paid partially or in full, at the wedding or during the divorce. The amount of the ‘mahr’ paid at the divorce does not take into consideration the inflation aspect. For example, a woman who was married twenty years ago and whose ‘mahr’ was worth one thousand US Dollars at the time of marriage, will receive that amount only without any interest, which might be worth much less at the time of divorce.

The “Triple Talaq” doctrine can be used by the husband only. The wife does not have the same privilege. A wife seeking Islamic divorce in Lebanon must go through a judicial process; her request must fall under certain criteria, typically khul’s, abuse, and mistreatment; inability to provide financial support, prolonged absence from the home or incarceration. Under such circumstance the wife has to prove her claims and it is up to the court to agree to her request or disagree.

 

Recognition in the U.S. of Islamic Divorce Obtained in Lebanon

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States?

Recognition of foreign divorce judgments by U.S. courts is based on the principle of ‘comity’ in private international law. The U.S. Constitution does not require that states should recognize and enforce foreign divorce judgments. State courts will only recognize foreign judgments of divorce if the decree obtained overseas is in accordance with the principles of comity among nations. This means that due regard to international duty and convenience, and the sense that respect is due to the judicial act of another nation, comity becomes a deference accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that the foreign court has jurisdiction and due process was provided to the parties involved and that public policy of the state in which the recognition is sought is not violated. Should the decree fail to meet these criteria, it will not be recognized as such.

The most important criterion that a state court will consider is the domicile of the parties at the time of the foreign divorce was obtained. State courts will consider recognition of a foreign judgment of divorce under the doctrine of comity if the Due Process Clause of the Fourteenth Amendment was respected and most importantly, if the public policy of the state was not violated.

 

About the Author

Gabriel Sawma, a lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari’a law. Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK. Professor of Islamic Economics at Islamic Economics, http://www.islamiceconomics101.com.

 

Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari’a, including Islamic marriage contracts, the mahr, Islamic banking and finance, Islamic inheritance and child custody. Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar and the American Bar Associations. Author of an upcoming book on Islamic marriage Contracts in U.S. Courts and the mahr issue. For free initial consultation: Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel: 609-915-2237