Abduction of American Children to Jordan

By

Prof. Gabriel Sawma

 

In recent years, I have been getting calls from mothers with US citizenships, seeking help in bringing back their children who have been kidnapped by their fathers. In other cases, the mother fears that the father plans to take the children to Jordan and never brings them back to the United States.

In a case that was brought before the Court of Allegheny, Pennsylvania, the client sought my legal advice on case involving a custody order issued by a Shari’a court in Saudi Arabia, in which the father was given right to custody of his two daughters who live with their mother in the State of Pennsylvania. As a result of my testimony, and taking into consideration ‘the best interest of the child’ doctrine, the Court of Allegheny acquired jurisdiction over the custody and ordered that the children stay with their mother in the United States. A copy of the Court judgment is available at request.

Jordan is another country in the Middle East whose laws permit the father to obtain a custody order from the court of that country in the event that he decides to take the child from the United States to Jordan and never return him or her back. This article deals with the law of custody in Jordan in contrast with the law of the United States.

 

Introduction

The Hashemite Kingdom of Jordan is situated at the junction of the Levantine and Arabian areas of the Middle East. The country is bordered on the north by Syria, to the east by Iraq, and by Saudi Arabia on the east and south. To the west is Israel and the West Bank.

The country is a constitutional monarch with representative government. The reigning monarch is the head of state, the chief executive authority delegated to the prime minister and the Council of Ministers, or cabinet. The cabinet is responsible before the elected House of Deputies which, along with the House of Notables (i.e. Senate), constitutes the legislative branch of the government. The judicial branch is an independent branch of the government.

Article 2 of the Constitution states that “Islam is the religion of the State and Arabic is its official language.” (See Constitution of The Hashemite Kingdom of Jordan, 1952 at this link: http://www.wipo.int/wipolex/en/text.jsp?file_id=227813

Article 99 of the Constitution divides the court into three categories: civilian, religious, and special courts. The civilian courts exercise their jurisdiction in respect to civil and criminal matters in accordance with the law, and they have jurisdiction over all persons in all matters, civil and criminal. The civilian courts include Magistrate Courts, Courts of First Instance, Courts of Appeal, High Administrative Courts and the Court of Cassation (the highest court).

The religious courts include shari’a courts, which apply Islamic law for the Muslim community, and non-Muslim tribunals for other religious communities, namely those of the Christian community living in the country. All religious communities in the kingdom have primary and appellate courts and deal only with matters involving family law such as marriage, divorce, inheritance and custody of the children.

 

The Shari’a Courts and Application of Islamic law

Article 105 of the Constitution states that “The Sharia Courts shall in accordance with their own laws have exclusive jurisdiction in respect of the following matters: (i) Matters of personal status of Muslims; (ii) Cases concerning blood money (Diya) where the two parties are Muslims or where one of the parties is not a Muslim and the two parties consent to the jurisdiction of the Shari’a Courts; (iii) Matters pertaining to Islamic Waqfs.” (Waqf is an Arabic term used to point to the real estate property owned by the religious communities in Jordan).

Article 106 states that: “The Shari’a Courts shall in the exercise of their jurisdiction apply the provisions of the Shari’a law.” (See unofficial English translation of the Constitution of Jordan at this link: http://www.med-media.eu/wp-content/uploads/2015/08/wcms_125862.pdf

Thus, the Shari’a courts are vested with exclusive jurisdiction in matters related to personal status of the Muslim community such as marriage, divorce, succession, guardianship, inheritance, as well as matters that are related to Muslim religious charitable endowments, and all other matters that are considered Islamic by nature.

The Shari’a courts comprise of courts of First Instance, and courts of appeal. Appeals from the latter is made to the Court of Cassation, which is the highest court of the land. Members of the trial and appeal courts are recruited from the judges who are experts in Islamic law. One judge, called “qadi”, sits in each Shari’a court and decides cases on the basis of Islamic law.

 

Custody of Children in Jordan

Disputes involving marriage, divorce and custody of children for the Muslim community in Jordan is governed by the Personal Status Law # 36, 2010, published in the Official Gazette, October 10, 2010. The rules applied to the custody of Muslim children are stated in Section 3. Article 173 (1) states that the custody of children belongs to the mother until the child reaches the age of fifteen.  This means the rule governing Muslim children in Jordan is based on the age of the child. After the child reaches the age of fifteen, he or she is given a choice to stay with the mother until the age of maturity, which is 18.

Article 176 states that if the child is a Jordanian citizen, his mother cannot travel with him or her for permanent residency without permission of the wali (guardian).

A mother can lose her primary right to custody of the child if the Shari’a court determines that she is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious Islamic standards.

According to Article 172(b), the wife loses her right to custody when the child reaches the age of seven if the mother is not Muslim. In other words, the age fifteen stated in article 173(1) for custody assumes that the mother belongs to the Islamic faith. If, however, the wife is not Muslim, then her custody ends when the child reaches the age of 7. This clause is based on Islamic Shari’a; it does not take into account the best interest of the child.

 

Jordan Does Not Recognize U.S. Custody Orders

The general rule is that Islamic Shari’a does not recognize a civil marriage, civil divorce or custody order issued by a US court. Under the Jordanian Personal Status Law, which is based on Islamic law for the Muslim community, the Shari’a courts will not recognize US judgments of custody. A US custody order issued at the request of an American mother will not be enforceable in Jordan.

Abduction of children is a major offense in Jordan. An American mother may face serious legal difficulties if she attempts to take her children out of Jordan without written permission of the father.

If a Jordanian father chooses to take the children to Jordan and leave them there, the U.S. Embassy cannot force the father or the Jordanian government to return the child to the United States, nor is it possible in most cases to extradite a Jordanian father to the United States for parental child abduction. American citizens planning a trip to Jordan with dual national children should bear this in mind.

 

Jordan Entered Islamic Reservations to the Convention on the Rights of the Child (CRC)

Upon ratification of the CRC, Jordan entered reservation to the Convention stating: “The Hashemite Kingdom of Jordan expresses its reservation and does not consider itself bound by articles 14, 20 and 21 of the Convention, which grant the child the right to freedom of choice of religion and concern the question of adoption, since they are at variance with the precepts of the tolerant Islamic Shari’ah.” So what do articles 14, 20 and 21 cover?

Article 14 reads: (1) State Parties shall respect the right of the child to freedom of thought, conscience and religion. (2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”

According to article 14, children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights. Parent should guide their children in these matters. The Convention respects the rights and duties of parents in providing religious and moral guidance to their children. Religious groups around the world have expressed support for the Convention, which indicates that it in no way prevents parents from bringing their children up within a religious tradition. At the same time, the Convention recognizes that as children mature and are able to form their own views, some may question certain religious practices or cultural traditions. The Convention supports children’s right to examine their beliefs, but it also states that their right to express their beliefs implies respect for the rights and freedoms of others.

Jordan entered reservation to article 20 of the Convention which states that children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language. This provision seems to be in violation of Islamic Shari’a which regards children born of Muslim fathers are considered to be Muslims and have to be raised by Muslim families.

Jordan entered reservation to Article 21 which talks about adoption of children. According to article 21, children have the right to care and protection if they are adopted or in foster care. The first concern must be what is best for them. The same rules should apply whether they are adopted in the country where they were born, or if they are taken to live in another country.

When Jordan entered Islamic reservations to the CRC and specified what provision the Kingdom is reserving to, the reservations do not indicate a refusal to be bound by the most central provisions of the Convention. That is, Jordan is not indicating a rejection of the overall goal of improving the wellbeing of children. Jordan singled out adoption and freedom of religion as indicated above, both of which violate percepts of Islamic law as traditionally interpreted.

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor: Middle East Studies at Fairleigh Dickinson University.
  • Lawyer with Middle East Background; Graduated from the Lebanese University, school of law.
  • Admitted to the Lebanese Bar Association of Beirut.
  • Practiced law in Beirut.
  • Nominated to be a judge in Lebanon, Lebanese Judicial Studies.
  • Supervised contracts in Europe and the Middle East.
  • Travelled extensively to the Middle East, including Lebanon, Syria, Jordan, Saudi Arabia, Qatar, Bahrain, United Arab Emirates.
  • Worked in Saudi Arabia.
  • Expert consultant on Islamic law.
  • Expert consultant on Islamic divorce in USA.
  • Expert consultant on mahr agreements in Islamic marriage contracts.
  • Expert consultant on Islamic finance.

 

Professor at Fairleigh Dickinson University

 

Taught the following courses:

  • Arabic 1001, Fall 2007, Spring 2008
  • Arabic 1002, Spring 2008
  • Arab Culture and Civilization, Fall 2009
  • Arab-Islamic Culture and Civilization, Fall 2011
  • Near East as Source of Western Culture
  • Middle East Constitutional Law – comparative study, including Islamic law of marriage, divorce, child custody and inheritance

Lecturer on Islamic Finance at the University of Liverpool:

 Course taught at Mercer Community College, West Windsor, New Jersey, Fall 2011.

  • Arabic 101

 Professor of Arabic 101 at Princeton Adult School in Princeton, NJ (2010, 2011, 2012, 2013)

 

 

Lecturer on Islamic Shari’a and its sources. See my lecture at Fairleigh Dickinson University to students and faculty:

http://view.fdu.edu/default.aspx?id=7899 

 Expert Consultant on Muslim family laws of the Middle East, Central and southeast Asia, Africa, and India.

 Expert Consultant of Islamic divorce in USA, see our website at:

http://www.islamicdivorceinusa.com 

 Featured on the BBC as, “Expert Consultant on Islamic divorce in USA.” The interview is posted on BBC’s website:

http://news.bbc.co.uk/2/hi/south_asia/8608878.stm 

 Featured on CNN as “Professor and Expert Consultant on Islamic sharia law.” The interview is posted on CNN’s website:

http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html 

Lectured at the Academy of Matrimonial Lawyers in New York

 Editor in chief of a blog on International Law, mainly Islamic law of marriage, divorce and custody of children:

http://www.gabrielsawma.blogspot.com 

 Won A Landmark Case In New York Involving Recognition of a Foreign Divorce Judgment including custody, and securing a mahr of $250,000 for the client

In 2012, the Supreme Court of Westchester County handed down a decision in favor of my client. The court recognized a divorce decree obtained from Abu Dhabi (UAE), including custody of children and recognizing a mahr agreement of $250,000. The entire court order is available on this link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Appellate Division Affirms

On January 20, 2015, the Appellate Division, Second Judicial Department, issued a ruling, in which the Court affirmed the decision of the lower Court. The decision of the Appellate Division is available on this link: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2016/D47647.pdf

 

Won A Landmark Case Involving Custody of Children

Saudi Arabia’s Shari’a Court issued a custody order against a U.S. citizen woman who was married to a Saudi husband. The husband obtained a court judgment from Saudi Arabia granting him custody of his two daughters. The Court in Allegheny, Pennsylvanian agreed with our argument that Saudi Arabia does not have jurisdiction, and the custody order violates Pennsylvania public policy and that Saydi Arabia is in violation to international human rights treaties.

The court order is not published yet, but I have a copy at request. Once published, I will post the link online. For more information on Abduction of children or fear of abduction to Muslim majority countries, please see our website at: www.gabrielsawma.blogspot.com

Author of dozens of articles dealing with Islamic divorce in USA and on International Law: Most of these articles can be found on our website at, http://www.gabrielsawma.blogspot.com 

 

Following is a partial list of my articles on Islamic and Hindu Divorces:[1]

  • Iraqi Divorce in U.S. Courts
  • Yemeni Divorce and U.S. Immigration
  • Egyptian Divorce and U.S. Immigration
  • Palestinian Islamic Divorce of West Bank in USA
  • Saudi Divorce in USA
  • Saudi Divorce and U.S. Immigration
  • Saudi Arabian Child Custody Cases in USA
  • Pakistani Divorce and U.S. Immigration
  • Muslim Divorce in Tunisia
  • Muslim Divorce in Bangladesh
  • Marriage of Minors in Islam
  • The Iddat of a Woman in Islam
  • Muslim Men Marrying Non-Muslim Women
  • The Law of Marriage and Divorce in the United Arab Emirates
  • Islamic Syrian Divorce in USA
  • Islamic Yemeni Divorce in USA
  • Islamic Jordanian Divorce in USA
  • Recognition of Hindu Divorces in New York State
  • Islamic Divorce in New York State
  • The Khul’ Divorce in Egypt
  • Islamic Women Divorce Laws in Egypt
  • Muslim Iranian Divorce in USA
  • Pakistani Islamic Divorce in U.S. Courts
  • Islamic Lebanese Divorce in USA
  • Islamic Marriage Over the Phone, an interview with BBC, (see above)
  • Islamic Sharia in Theory and Practice, a Lecture at FDU, (see above)
  • Divorce in Egypt, an interview with CNN, (see above)
  • Annulment of Islamic Marriages
  • The Wali (guardian) in Islamic Marriages According to Hanafi Jurisprudence
  • Islamic Marriage Contracts in the Hanafi Jurisprudence
  • The Jihaz in Islamic Marriages
  • The Nafaqa in Islamic Marriage
  • The Mahr in Islamic Marriage Contracts
  • Indian Divorce in US Courts
  • Application of Islamic Sharia in US Courts
  • Abduction of children to Muslim Majority Countries
  • Abduction of American children to Saudi Arabia
  • Abduction of American Children to Jordan
  • Abduction of American Children to Iran
  • Recognition and enforcement of mahr agreements in New York

Wrote extensively on International law in the area of the European Union Law. Following are excerpts:

Partial List of my Articles on International Law:[2]

  • The Shebaa Farms Under International Law
  • The Nigerian Scam and its Impact on Global Economy
  • Public International Law and Organizations

 

LANGUAGES

Speak, read and write: Arabic, English, French, and Syriac.

 BAR ASSOCIATIONS

  1. Admitted to the Lebanese Bar Association of Beirut since 1970
  2. Former Associate Member of the New York Bar Association, 1982
  3. Former Associate Member of the American Bar Association, 2003

 CONTACT INFORMATION:

 Gabriel M. Sawma

 Tel. (609) 915-2237

Email: gabrielsawma@yahoo.com 

Email: gabygms@gmail.com 

 

http://www.gabrielsawma.blogspot.com 

 

 

 

[1] These articles are published and can be accessed on this blog.

 

[2] These articles can be accessed on http://www.gabrielsawma.blogspot.com

 

ABDUCTION OF AMERICAN CHILDREN TO SAUDI ARABIA

By

Prof. Gabriel Sawma

 

As this article was being written, the court of Common Pleas of Allegheny County, Pennsylvania, Family Division, issued a judgment in our favor, granting the custody of two children to the mother and denying a request by the father to take the children back to Saudi Arabia. This custody order complies with out argument before the court of Pennsylvania that the Saudi custody order should not be recognized for violation of US and international law, and it should not be recognized for violation of Pennsylvania public policy, and because Saudi Arabia is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. The court order is not published yet; I will post the link once it is published. A copy is available at the request of judges and lawyers.

In recent years, I have been getting calls from clients throughout the U.S. and Canada seeking help in bringing back their children who were kidnapped from the United States to Saudi Arabia by their fathers. Most of these cases involve a marriage of Saudi men to women of U.S. nationality. This situation becomes a frustrating task for judges and lawyers for not being able to have the government of Saudi Arabia comply with U.S. court decisions to bring back the children, or grant visa to the mother to travel to Saudi Arabia and see her children. That is because Saudi Arabia does not recognize US court orders.

In other situations, the children live in the United States with their mother, but fear that the husband can obtain Saudi passport for the children and plans to take them to Saudi Arabia with the purpose of staying there and not allowing them to come back to the United States.

This article addresses the legal issues facing women who see their children abducted to Saudi Arabia by their fathers for the sole purpose of keeping them in that country and not allowing them to return to USA. Some of the calls I receive indicate “fear of abduction” by the husband. The article also helps American women to understand the ramifications, in connection with custody of their children, when they marry Saudi men.

On its website, the U.S. Embassy in Riyadh, capital of Saudi Arabia, states the following: “The Kingdom of Saudi Arabia is not a party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. American citizens who travel to Saudi Arabia are subject to the jurisdiction of Saudi courts, as well as to the country’s laws and regulations. This hold true for all legal matters including child custody. Parents planning to travel with their children to Saudi Arabia should bear this in mind.” (See Embassy of the United States in Riyadh, Saudi Arabia at: http://riyadh.usembassy.gov/ipca2.html

 

Introduction

Saudi Arabia is a kingdom located in the Middle East between the Persian Gulf and the Red Sea. It borders Jordan, Iraq, and Kuwait to the north, Yemen to the south, and Oman, the United Arab Emirates (UAE), and Qatar to the east.

Unlike most Muslim majority countries of the Middle East, where personal status laws have been codified for the various religious communities, Saudi Arabia does not have a codified family law. The religion of Saudi Arabia is Islam and its constitution is the “Book of God Most High and the Sunna of His Prophet.” This means the rule of Saudi Arabia draws its authority from the Quran and the sayings and deeds of the Prophet of Islam. Consequently, Sharia courts apply, in cases brought before them, the rules according to the Quran, the Sunna and the interpretations of these two divine elements given by major scholars in the Hanbali School of Thought, which is the dominant school of jurisprudence in the kingdom.

Without going into details about the Schools of Thought in Sunni and Shi’i Islam, it is worth to note here that Islamic Sharia is explained within the context of Four Schools of jurisprudence in Sunni Islam and three Schools within the Shi’a community. These are known in Arabic as Madhaahib, singular Madhab. In other words, each Muslim majority county applies the rules of Islamic Sharia according to one or more of these Schools. Saudi Arabia, for example applies the rules of Hanbali jurisprudence, while Lebanon and Syria apply the rules according to Hanafi School of Thought for the Sunnis. In Indonesia, they apply the rules of Shafi’i. (For more information on the distribution of Schools of Thought in the Islamic world, see: http://veil.unc.edu/religions/islam/law/

 

Custody Orders Are Determined by Religion, Gender, and Age of the Child

Custody orders issued by Saudi Shari’a courts are based on religion, gender of the child, and his or her age. The most important criteria in Saudi custody orders is that the custodian father will take care of the children by bringing them up within the Islamic faith. This means that the religion of the father determines the custody of his children; a child born of a Muslim father, his or her custody goes directly to the father without taking into consideration the Western notion of the ‘best interest of the child.’

In the event of divorce, custody of girls and boys belong to the father when they reach age of seven. Girls are not given a choice to live with the mother or father, but boys are usually give that choice.

Saudi courts generally do not award custody of children to non-Saudi women. If the mother is not Arab Muslim, judges will not grant her custody of the children.

Saudi custody orders do not take into consideration the best interest of the child. Shari’a court judges do not interview the children and do not provide the opportunity for the children to make their views known.

In Saudi Arabia, the mother’s role in reproduction is, in fact, limited to childbirth, nursing, and the nurturing of young children. Beyond that stage, custody of children belongs to the father.

Under Saudi law, no woman or child can leave the country unless the ‘guardian’ approves of that. The ‘guardian’ is the husband, who has authority to deny his wife or children, whether adult or not from traveling outside the country without his permission, even if they hold U.S. citizenship.

In most cases, Saudi fathers have married their half-American daughters to other Saudi men. The U.S. Embassy can intercede with the Saudi government to request exit visas for adult U.S. women, but there is no guarantee that the visas will be issued, and obtaining an exit visa without the male guardian’s consent takes many months, if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the departure of minor children without their father’s permission.

In September 2002, the Foreign Minister of Saudi Arabia announced that any adult American woman who wishes to leave Saudi Arabia, can do so even without permission of her male guardian. The Foreign Minister did not say anything about half-American children.

Saudi Arabia does not recognize dual citizenship. The U.S. Embassy in Riyadh states that: “The Saudi government does not recognize dual nationality. Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.” <http://riyadh.usembassy.gov/service/passport-and-citizenship/dual-nationality.html>

In its 2016 report on Saudi Arabia, Amnesty International states the following: “Women and girls remained subject to discrimination in law and in practice. Women has subordinate status to men under the law, particularly in relation to family matters such as marriage, divorce, child custody and inheritance, and they were inadequately protected against sexual and other violence. Domestic violence remained endemic, despite a government awareness-raising campaign launched in 2013. A law criminalizing domestic violence which was adopted in 2013 remained unimplemented in practice.” (See <https://www.amnesty.org/en/countries/middle-east-and-north-africa/saudi-arabia/report-saudi-arabia/ >

In Saudi Arabia, women are prohibited from obtaining passport, marrying, traveling, or accessing higher education without the approval of a male guardian.; A father may force his female children into marriage without their consent, and underage girls may be forced to marry.

Under the Islamic rules, a Muslim man may marry up to four wives at one time, and according to the Qur’an, women should be devoutly obedient to their husbands and “men are the protectors and maintainers of women because Allah has made one of them to excel the other.” (Qur’an 4:34)

One such manifestation of obedience is wearing the hijab, which means face and head covering and all over the body, and men can end the marriage by simply stating ‘I divorce you’. The husband can divorce his wife without having to obtain a judicial order, and without having to give very much justification. On the other hand, a woman must get a judicial decree in order to get out of the marriage.

Under Islamic law, a woman’s testimony in court is equivalent to half that of a man, and a Muslim woman is prohibited from marrying non-Muslim man.

 

Saudi Arabia Does Not Have Equal Protection of the Law

The most influential formulation of the principle of equal protection of the law was set forth in the 1868 Fourteenth Amendment to the US Constitution is not recognized in Saudi Arabia. The Kingdom discriminates against women, whose status is more difficult than in any other country in the world, particularly with regard of freedom of movement (forbidden from driving), and may not travel without being accompanied by a male relative, freedom of speech, and freedom from dress restrictions.

Saudi Arabia Is Not Party to The Hague Convention On the Civil Aspects of International Child Abduction

Saudi Arabia is not party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the Kingdom of Saudi Arabia and the United States dealing with international parental child abduction, nor to an extradition treaty with the U.S.

 

Saudi Arabia Does Not Recognize U.S. Custody Orders

Saudi Arabia does not recognize U.S. court orders, including custody of children and divorce decrees, which are consequently unenforceable in Saudi Arabia.

 

Saudi Arabia Did Not Sign the Universal Declaration of Human Rights (UDHR) and Entered Reservations on Other International Human Rights Treaties

UDHR was adopted on December 10, 1948 by the United Nations General Assembly. Saudi Arabia never signed the Declaration, and ratified The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by entering reservations that make Islamic Shari’a superior to the Convention, which was adopted in 1979 by the UN General Assembly.

Saudi Arabia did not ratify the International Covenant on Civil and Political Rights (ICCPR), which was adopted on December 19, 1966 by the General Assembly of the United Nations. Saudi Arabia is one of the few states that is not a party to ICCPR. Human Rights Watch confirms this fact in its report, which reads: “Despite its assertions to the contrary, Saudi Arabia, by virtue of its membership in the United Nations, is committed to uphold universal human rights standards, including those set forth in the Universal Declaration of Human Rights (UDHR), which are recognized as norms of customary international law. Other international instruments elaborate upon these rights, most notably the International Covenant on Civil and Political Rights (ICCPR), to which 138 states are party. Although Saudi Arabia is one of the few nations that is not a party, the terms of ICCPR provide guidance as to the content of the fundamental rights that Saudi Arabia is obliged to respect, based on Saudi’s participation in the United Nations and the universally binding character of such rights.” (See the Report on this link: <https://www.hrw.org/reports/1997/saudi/Saudi-07.htm>

 

Saudi Arabia Violates Treaty on Human Rights for The Child

In November 1989, the United Nations General Assembly adopted a human rights treaty called The Convention of the Child (CRC), or (UNCRC). It sets out the civil, political, economic, social, health and cultural rights of the children. It defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state’s own domestic legislation. The treaty came into force on September 2, 1990, after it was ratified by the required number of nations.

Saudi Arabia ratified the Convention on the Rights of the Child in 1996, but it entered a reservation “With respect to all such articles as are in conflict with the provisions of Islamic law.” This means, Saudi law enforcement officials, judges, and prosecutors “have very broad discretion to determine issues such as when to arrest children, how long to detain them and what punishments to impose on those deemed to have broken the law.” (See Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System, volume 20, by Human Rights Watch, 2008, p.8.) This also means that Saudi Arabia considers Islamic Shari’a superior to international human rights laws.

There is no minimum age of marriage in Saudi Arabia, a number of notorious child marriage cases have reported by the media, such as when an eight-year-old girl requested the courts in May 2009 to grant her divorce from her fifty-year-old husband. (See A Conspicuous Silence: American Foreign Policy, Women, and Saudi Arabia by Valerie Hudson, Columbia University Press, 2015, electronic version)

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law, mainly the law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

BBC: <a href="http://news.bbc.co comparatif cialis prix.uk/2/hi/south_asia/8608878.stm”>http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

For more information on the author, please see Curriculum Vitae at this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

New York Appellate Division Accords Recognition and Enforcement of United Arab Emirates Divorce, Mahr, and Custody Judgment

By

Professor Gabriel Sawma

 

This author submitted an affidavit to the New York Supreme Court in Westchester County in support of recognition and enforcement of a divorce decree obtained from Abu Dhabi, an emirate in the United Arab Emirates (UAE). The divorce was granted to the wife, and included mahr and custody of the children, http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Supreme Court cited our affidavit in the following terms: “She (the wife) submits an affidavit from Gabriel Sawma, an expert consultant on Islamic divorce in the United States and Middle East Laws, including the legal structure of the courts of the UAE, which include the emirate of Abu Dhabi. Professor Sawma is fluent in Arabic and English and he reviewed both the Arabic and English translations of the certified orders, judgments, and decrees rendered by the Abu Dhabi courts in the criminal, divorce, and custody proceedings between the parties. In his affidavit, Professor Sawma explains the structure of the judiciary in the UAE, the legal proceedings between the parties and the judgments and decrees rendered by the Abu Dhabi courts.”.

I would like to note here that the Supreme Court of the State of New York is the trial-level court. Appeals from Supreme Court decisions, are heard by the Appellate Division of the New York Supreme Court. The Appellate Division is intermediate between the New York Supreme Court and the New York Court of Appeals. Unlike in most other states, the Supreme Court in New York is a trial court and is not the highest court in the state. The highest court of the State of New York is the Court of Appeals.

 

Summary of the Case

In 1998, S.B., a U.S. citizen professional woman (wife), married W.A. (husband), an immigrant from Egypt who later became an architect.  They both had Islamic and civil marriage in New York, and both lived in New York State until 2006, where two children of the marriage were born. They then moved to Abu Dhabi in the United Arab Emirates, where W.A. got a job.

In 2009, S.B. filed a suit in Abu Dhabi, accusing W.A. of attacking her, inflicting “severe bruises and a fractured skull.” Consequently, W.A. was convicted of assault on the grounds (according to the UAE court) that he had crossed his legal limits to discipline his wife. The husband never denied using physical force against his wife, but defended the charges claiming he had the right to use physical means to discipline his wife and that “her injuries were not as severe as she claimed.”

The Abu Dhabi Court of the First Instance granted divorce to S.B, and awarded her the $250,000 mahr, which, according to Islamic law, represents an amount of money that the husband promise to pay his wife in the event of divorce. The court also ordered W.A. to pay child support and some amount of spousal support, and gave the wife custody of the children.

Both parties had the opportunity to participate in the litigation in Abu Dhabi, and each party was represented by legal counsel. This was not just a case where husband and wife are living in the United States, and the husband goes back to his country in the Middle East to get a divorce without the wife’s participation.

W.A. appealed the first judgment to the Court of Appeal in Abu Dhabi, which rendered a decision on April 4, 2010, and the Court of Cassation, which rendered a decision on November 8, 2010. Both courts affirmed the judgment of the Court of First Instance, “except that the Udda Alimony.

Following the final judgment of the Court of Cassation, the husband fled Abu Dhabi and returned back to New York and brought with him the children’s passports without the knowledge of the wife. The wife had a banking job in the UAE, and wanted to abide by the terms of her three-year contract. At a later time, S.B. and her children returned back to New York.

 

Recognition of Divorce Judgment Pursuant to the Doctrine of Comity

S.B. filed a suit seeking recognition and enforcement of the Abu Dhabi divorce decree in New York. The Supreme Court of Westchester County in New York recognized the UAE.

The Supreme Court stated that “The general principle of law is that a divorce obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York”, … “Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States”, … “Loosely, [comity] means courtesy, respect, or mutual accommodation; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which it won’t.”

The Court added: “A court has the inherent power pursuant to the principles of comity to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the domestic state, … A party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding… Only where there has been a showing that the foreign judgment was fraudulently obtained … or that recognition of the judgment would conflict seriously with a compelling public policy… can a collateral attack be entertained… Absent some showing a fraud in the procurement of the foreign country judgment… or that recognition of the judgment would do violence to some strong public policy of this State … a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State.”

 

The Court Rejected the Claim That Abu Dhabi Court Judgment is based upon the Religious Marriage Contract

In this case, W.A. “claims that the Abu Dhabi entered a divorce judgment based upon the religious marriage and declined to recognize and litigate the civil marriage, thereby violating the public Policy of this state. However, this claim is belied by the multiple orders, judgments, and decrees annexed to plaintiff’s moving papers, which establish that the divorce action was brought in the Abu Dhabi civil court system and under the Personal Status Law of 2005. Moreover, Article 5 of the Personal Status Law established that the divorce action was litigated in a civilian state court, not a Sharia religious court, by stating: “[t]he State courts shall have jurisdiction on Personal Status litigations in which citizens, or aliens, having domicile or residence or place of business in the State, are defendant.” (See also Affidavit of Professor Gabriel Sawma, dated May 11, 2012, at page 3, and the exhibits annexed thereto).

 

The Mahr Agreement is Enforceable Pursuant to the Doctrine of Neutral Principles of Law

The Supreme Court of Westchester County viewed the decree ordering the payment of the $250,000 mahr enforceable. The Court said: “There can be little doubt that a duly executed antenuptial agreement, by which the parties agree in advance of the marriage to the resolution of disputes that may arise after its termination, is valid and enforceable.”

The Supreme Court added: “So too many agreements predicate upon religious doctrine and customs be enforced in civil courts, as long as enforcement does not violate either the law of the public policy of the state. While “the First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,” a State may adopt any approach to settling these disputes, “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tents of faith”, … Use of the “neutral principles of law” approach, which “contemplates the application of objective, well-established principles of secular law to the dispute,” has been found to be “consistent with constitutional limitations.” This approach permits “judicial involvement to the extent that it can be accomplished in purely secular terms.”

“The “neutral principles’ method requires a civil court to “take special care to scrutinize the [religious] document in purely secular terms, and not to rely on religious precepts”. If interpretation of the document “requires the civil court to resolve a religious controversy, … resolution of the doctrinal issue” must be deferred to the “authoritative ecclesiastical body.”

A “Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a free exercise of religious beliefs, no matter how diverse they may be.” Since a Mahr agreement may be enforced according to neutral principles of aw, it will survive any constitutional challenge and enforceable as a contractual obligation.

 

The Custody Order from Abu Dhabi is recognized in the State of New York

The Supreme Court of Westchester County stated that “The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and internationally and is designed to promote uniformity throughout the world in custody determinations, … The UCCJEA is mandatory and provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced.” Except where “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights”.

The Domestic Relations statutes mandates that “any foreign nation must be treated as if it were a state within the United States for purposes of jurisdiction and inter-court cooperative mechanism. The UCCJEA is not a reciprocal act. There is no requirement that the foreign country enact a UCCJEA equivalent, … The statute “is designed to eliminate jurisdictional competition between courts in matter of child custody, with jurisdictional priority conferred to a child’s home state . . .”

When there is no violation to fundamental principles of human rights in the custody law of the foreign country, or that the foreign courts are without jurisdiction to determine custody, the U.S. court, based upon the principles of comity and pursuant to domestic law, must recognize and enforce the custody determination of a foreign court awarding custody. This is attested by the Supreme Court’s decision of Westchester County which reads: “Neither party alleges that any of the child custody laws of the UAE violate fundamental principles of human rights or that the Abu Dhabi courts were without jurisdiction to determine custody. Nor does this Court find any such violation or lack of jurisdiction. Therefore, based upon the principles of comity and pursuant to Domestic Relations Law 75-d, this Court must recognize and enforce the custody determination of the Abu Dhabi courts awarding plaintiff custody.”

 

The Appellate Division Affirms the Judgment of the Supreme Court

On January 20, 2016, the Appellate Division: Second Judicial Department of the Supreme Court of the State of New York affirmed the judgment of the lower court,  http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2016/D47647.pdf

The High Court refers to our affidavit as follows: “According to the affidavit of a Fairleigh Dickinson University professor submitted by the plaintiff in support of her motion, the parties’ mahr agreement is a marriage agreement in accordance with Islamic law wherein the defendant pledged to pay the plaintiff a “deferred dowry” in the event of a divorce. While the parties were living in Abu Dhabi, United Arab Emirates, the plaintiff sought and obtained a judgment of divorce against the defendant in the Abu Dhabi courts. The judgment of divorce awarded the plaintiff custody of the parties’ children and financial relief, including an award of $250,000 pursuant to the mahr agreement.” The Court added:

Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States”, . . . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in it procurement or that recognition of the judgment would do violence to a strong public policy of New York.”

 

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, and French

Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

For more information on the author, please see Curriculum Vitae at this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

The Druze Divorce in USA

By 

Professor Gabriel Sawma

Introduction to the Druze Community in USA

A study of the Druze community in the United States can be understood within the context of the Druze people and their presence in the Middle East, mainly in Lebanon, Syria, and Israel. The faith is called Tawheed and takes its origin from Shi’a Islam under the guidance of the sixth Fatimid caliph Abu Ali Al-Mansur Al-Aziz Bi-Allah, popularly known as Al-Hakim Bi-Amr Allah. This caliph is considered by the adherents of the Druze faith a man with great wisdom and knowledge. (For in depth analysis of the Druze faith, refer to The Druze Faith by Sami Makarem, New York, Caravan Books, 1974).

Although there are Druze in Israel, Syria and Jordan, the majority are present in Lebanon, where they are recognized as a minority who possess a great political influence in that country. Their influence goes back to the Ottoman period.

 

Development of the the Druze Personal Status Law

During the Ottoman Empire, the Islamic family law (Personal Status Law), was applied to the Muslim communities according to the Hanafi School of Thought. (For more information on Muslim Family Law under the Ottoman Empire, see The View from Istanbul: Lebanon and the Druze Emirate n the Ottoman Chancery Documents 1541-1711 by Abdul-Rahim Abu-Husayni, New York, Center for Lebanese Studies in association with I.B. Tauris Publications, 2004)

The Ottoman family law remained in force in Lebanon until 1926 when the French government, which had a Mandate over Lebanon, decided to modify it in order to give separate legal status for the Shi’a community. In December of 1926, the French authority recognized the Druze of Lebanon as an independent sect. And, in 1948, the Druze Personal Status Law was enacted for the purpose of organizing the court system for the community. The final Personal Status Law (PSL) governing the Druze community was issued on March 5, 1960. The PSL governs all aspects of family law for the Druze community in Lebanon. However, when a case has no legal ruling in the PSL, the judge may apply the Hanafi code of the Sunni Muslims, taking into account the Druze traditions, customs and the principles of justice and equality. Before 1948, family cases such as marriage, divorce, custody of the children and inheritance, were settled in accordance with the prevailing Islamic law according to the Hanafi provisions taking into consideration the practices and customs of the Druze community. (For more on the Druze tradition, see Nizam al-Mowahedine Al-Dorouz Al-Ijtimaa’; fi sijil alahkam al mazhabiat lil qadi Ahmad Taqqi Al-Dine, 1866-1870 by Taqii Al-Dine, Slieman and Abou=Chakra, Dar Isharar lil Tiba’at Wa Al-Nashir Wa Al-Tawzee’, Beirut, 2006)

 

The Current Personal Status Law of the Druze in Lebanon

Divorce is defined as the termination of a marriage contract. According to Article 37 of the PSL, the judge of the Druze community has solely the authority to end the marriage. Once the divorce order is issued by the judge, the husband is not allowed to remarry his divorced wife. (Article 38). Divorced members of the Druze community wish to remarry may obtain a civil marriage outside the country or change their religion.

Contrary to the rules of Islamic divorce, a Druze man cannot divorce his wife unilaterally. Under the Islamic rules, a Muslim man can divorce his wife anytime and in any place by just uttering “I divorce you”, or “I divorce my wife”, or “my wife is divorced.” Such a rule is not acceptable in a Druze divorce according to Article 37. Once a divorce application is submitted to the court, the judge is required by law to appoint two adjudicators for reconciliation:

“In a dispute between husband and wife, the judge shall appoint two arbitrators from both families. If none of their relatives has the legal capacity to act as arbitrator, the judge shall appoint an outsider to conduct the reconciliation.”

If the judge finds the husband is at fault, he will order the husband to pay the wife, balance of the mahr. According to Article 49 of the PSL, the judge has authority to order compensation for injuries caused by the husband in addition to the mahr.

The wife may seek divorce without losing her right to mahr under conditions stated in Articles 39, 40, 41, 43, 44 and 45. The conditions include wife’s right to seek divorce if the husband suffers from incurable, contagious disease, or if the husband is mentally ill, or committed an act of adultery, was imprisoned for more than five years, was absent for three years with providing maintenance to his wife for five years. Under these circumstances the wife may seek divorce without losing her mahr. On the other hand, the husband may seek divorce if the wife is considered “nashez”, i.e., refuses to have sexual relation with her husband, or leaves the house without reasonable cause and does not return back. According to Article 42 of PSL, a Druze married couple may agree to divorce amicably in front of two witnesses without having to explain the cause of divorce to the judge.

 

Types of Divorce in the Druze Community

Divorce among members of the Druze community takes one of three forms: (1) divorce by agreement (talaq bi al taradi) of the married couples before the case is presented to the court, i.e., out-of-court settlement; (2) the divorce is contested before the court, but the couples decide to settle the case after court intervention; (3) when the parties to a divorce contested their case before a judge without reaching an agreement. In such cases, the judge would issue a judgment of divorce.

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce, custody of children and abduction of children to Muslim countries, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and other Semitic languages.

Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

For more information on the author, please see Curriculum Vitae at this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

QATARI DIVORCE IN U.S. COURTS

 

By

Prof. Gabriel Sawma

 

INTRODUCTION

Qatar, Arabic قطر is a small Arab state, situated in both the northern and eastern hemispheres and is located in the Middle East or South West Asia. Its sole land border is with Saudi Arabia to the south, with the rest of its territory surrounded by the Persian Gulf. A strait in the Persian Gulf separates Qatar from the nearby island state of Bahrain. Qatar is a peninsula of 4,412 square mile, less than half the size of Rhode Island, with a relatively small population of a little over two million most of whom are foreign nationals working in Qatar. The country is ruled by the al-Thani family since the mid-1800s. The ruler has a title Emir, or Amir, and the country has significant oil and natural gas revenues. During the late 1980s and early 1990s, the Qatari economy was crippled by a continuous siphoning off of petroleum revenues by the Emir, who had ruled the country since 1972. His son, Hamad bin Khalipha al-Thani, overthrew his father in a bloodless coup in 1995. Qatar has the world’s third largest natural gas reserves after Russia and Iran. This enabled the country to attain the third-highest per capita income in the world after Luxembourg and Norway. On June 25, 2013, Emir Hamad bin Khalifa Al Thani handed power to his son Tamim bin Hamad Al Thani.

In July 1999, the Emir appointed a committee to draft a permanent constitution for Qatar. The tenets of the Constitution are based on Qatar’s affiliation to the Arab world and the teaching of Islam. On April 29, 2003, a public referendum approved the new Constitution; it was signed by the Emir on June 8, 2004. The main provisions in the Constitution include Qatar to be an independent sovereign Arab state; its religion is Islam and Islamic Shari’a is the main source of legislation (Article 1). Qatar’s official language is Arabic. The Constitution provides for the establishment of an Advisory Council, two-thirds of whom are elected and the remainder appointed by the Emir. The rule of the state is hereditary, following the male descendants of the Al-Thani family. The heir must be a Muslim of Qatari Muslim mother (Article 8).

 

 

THE JUDICIARY IN QATAR

Qatar has two tiers of judiciary, (1) civilian, (2) religious. The civilian judiciary is divided into two branches: civil and criminal courts.

In 1999, the government of Qatar established the Supreme Judiciary Council. This body presides over all court rulings as well as the appointment, transfer and assignment of judges. The responsibilities and goals of the Council is to assert judicial independence, meet the level of competence as outlined in the law that established the Council, and provide judgment on legal disputes in all levels of the court system.

The Law of Judiciary was issued in 2003; it provides provisions for the courts to do their judicial duties, and divides the courts among three layers: (1) Mahkamat al-Tamyeez (Court of Cassation) –the highest court; (2) Mahkamat al-Istinaf (the Courts of Appeals) which looks into appeals from the lower courts in the area of criminal penalties, criminal, civil, commercial, personal status (family), inheritance, and administrative disputes; (3) Mahkamat al-Ibtidaiyyat (Courts of the First Instance), which adjudicates in the areas of criminal penalties, criminal cases, civil, commercial and personal status (family), inheritance, and administrative disputes. The Supreme Judiciary Council may establish courts of the first instance in other cities around the country.

 

 

MARRIAGES IN THE STATE OF QATAR

Marriage, divorce and custody of children for Muslims living in Qatar are governed by Qanun Al-Ussra (Family Law) of 2006.  The law consists of 301 articles, and is based on the principles of the Hanbali School of Jurisprudence.

According to this law, marriages between Qatari men and non-Qatari women may take please provided that permission is given by a government appointed body called “Marriages Committee.” Muslim weddings take place in Sharia courts, while non-Muslims may marry in a handful of designated churches in Doha.

A Muslim man may marry a non-Muslim woman. However, a Muslim woman is not allowed under Islamic law to marry non-Muslim unless he converts to Islam, otherwise their marriage will not be recognized and she might be subject to prosecution.

Islamic marriage in Qatar follows the Shari law whereby the marriage is a civil contract, in which an offer to marry and acceptance have to be announced in the presence of two Muslim, male witnesses. The law requires that both parties meet fitness requirements, and agree to a “mahr”.

The minimum age for marriage is set at 16 for a girl and 18 for a boy.

 

 

MUSLIM DIVORCE LAW IN QATAR

Muslim divorce in Qatar is regulated by articles 101through 164 of the Family Law of 2006. Accordingly, a divorce many take place in three different ways: (1) Talaq initiated by the husband; (2) mukhalaa, i.e. by consent of both parties; And, faskh, i.e. by judicial decree (Article 101).

Article 109 allows a divorce initiated by the husband to be delegated to a second party or to the wife. When the husband initiates divorce, he has to do that in the presence of a judge. The judge will do his best for reconciliation before he records the divorce, (Article 113).  After recording the divorce, the judge assigns the the amount of ‘nafaqa’ (similar to alimony) during the period of ‘iddat’ (i.e., three menstrual cycles). He will also assign the amount of ‘nafaqa’ for the children (i.e., child support), (Art. 114).

Another form of terminating the marital status is by both parties agreeing to a “Khul” divorce, in which the wife relinquishes her financial rights and the “mahr”, (Art. 122).

Articles 123 to 164 of the Family Law set out the grounds on which the wife may seek “Faskh” (i.e. terminating the marriage by separation) in situations where the husband is found to be inept, not aid his wife maintenance or has been missing for more than a year. In such situation, the judge will try reconciliation first; once reconciliation fails, then divorce is granted.

 

 

RECOGNITION OF FOREIGN DIVORCE JUDGMENTS BY STATE COURTS

A foreign divorce judgment is recognized generally in a state in the U.S. on the basis of comity, Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment of divorce it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to assist clients and attorneys by submitting opinions and affidavits to State and Federal Courts, and to Immigration Boards throughout the United States on cases involving Islamic marriage, Islamic divorce and custody of children. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at the Supreme Court of Westchester County, in which this author submitted an Affidavit on behalf of a client. The Court agreed with our arguments and granted our client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Court at this link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawmais a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.

Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.

Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.

Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.

Interviewed by the following news organizations;

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN:http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

 

Professor of Islamic Finance at the University of Liverpool (2012)

 

Lectured on Islamic Sharia at Fairleigh Dickinson University:

http://view.fdu.edu/default.aspx?id=7899

 

 

CONTACT INFORMATION

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

VISIT OUR WEBSITES AT THE FOLLOWING LINKS:

http://wwwmuslimdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information about the author, see our CV at:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

Visit us on Facebook at:

https://www.facebook.com/islamicdivorce

IRAQI ISLAMIC DIVORCE IN U.S. COURTS

By

Prof. Gabriel Sawma

 

Married Muslim Iraqi men, with U.S. citizenship, travel to Iraq, obtain a divorce decree from a court of Personal Status and come back to the United States seeking recognition of their Islamic divorce in a state court. This article deals with the legal ramifications of such a divorce decree.

 

Introduction

Iraq was declared a republic in 1958 after a coup that put an end to the monarchy. Since then, the country was ruled until 2003 by a series of strongmen. The last was SADDAM Husayn who was deposed by the U.S.-led allied coalition invasion of Iraq. He was executed on the first day of Eed al-Adha, December 30, 2006.

Iraq is the region known outside the Islamic world as Mesopotamia, or the land between two great rivers, The Euphrates and Tigris. Iraq’s population is estimated by the IMF to be 21,234.000. (April 2009 IMF est.) In ancient history, Iraq was the country of the earliest civilizations. The ruins of Ur, Babylon, and other ancient cities are situated in Iraq, as is the legendary location of the Garden of Eden.

The dominant ethnic group in Iraq is Muslim Arabs, who account for around three-quarters of the population. There are approximately 17% Kurds, 3% Turkmen, 2% Christians (Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics), and other 1% (Armenians, Circassians, Shabaks, and Mandeans). Among the Muslims of Iraq there are around 53% Shia and 44% Sunni. Arabic is the official language of Iraq, and is spoken and understood by almost all the population. Kurdish is the largest minority language, and has regional language status in Iraqi Kurdistan. Aramaic, once spoken by the whole country, is now only spoken by the Christian minorities of Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics. Azerbaijani is spoken in pockets of nofthern Iraq, and Persian in pockets of southern Iraq. Numerous languages of the Caucasus are also spoken by minorities across the country.

 

The Legal System in Iraq

Iraq has a mixed legal system that governs both Sunni and Shia jurisprudence for the law applied in Islamic religious courts (Sharia Courts). [Currently, there are efforts in Iraq to enact a code of personal status for the Shia sect]. Islamic family law is ruled by The Iraqi Law of Personal Status 1959; it was based on the report of a commission appointed a year earlier to draft a code of family law for the Muslim community in Iraq. Christians and Jews are governed by their own family laws. Article 2 of the Constitution of Iraq states that “Islam is the official religion of the State and it is fundamental source of legislation: (A) No law that contradicts the established provisions of Islam may be established”. Section 2 of Article 2 states that “This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.”

The courts of Personal Status hear all cases involving Sunni and Shia Muslims in the areas of marriage, divorce, legitimacy, custody of children and inheritance and waqf (real property owned by Islamic religious organizations such as schools, mosques, etc.) These courts also hear cases involving non-Iraqi Muslims, provided that their country of residence does not apply civil law for their divorce.

Personal Status Courts are available everywhere there are Courts of First Instance in Iraq. Each of these Personal Status Courts is headed by a judge who presides over the Court of the First Instance. Rulings of the Court of Personal Status are appealed to the Court of Appeal. Judgments are given by a majority rule. The grounds for appeal can be either factual or legal and either party may submit further evidence or a request to hear witnesses. Arguments may be oral, or written. It is also possible to introduce additional evidence to the Court of Appeal and/or request that additional witnesses be called to testify in the court.

The court of Cassation is the most supreme judicial body for Personal Status in Iraq. This Court looks into appeals challenging the rulings of the appellate courts. The Court of Cassation consists of several circuits, one of which is the Personal Status Circuit. Judgments of the Court of Cassation are final and binding.

 

The Law of Divorce in Iraq

Article 37 of Personal Status Law (PSL) states that the husband can perform divorce by pronouncing three repudiations such as saying “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Paragraph 2 of the article considers a three consecutive pronouncement in one session as only one divorce. In other words, the husband may divorce his wife three times on three separate intervals.

A divorce initiated by the husband may be revocable or irrevocable. A revocable divorce will suspend the marriage until three menstrual periods, during which the couple can resume their marital relations. If the three menstrual periods have passed, they can remarry by agreeing to a new marriage contract. The divorce becomes irrevocable if the husband divorces his wife three times on three interval periods. At that time, the wife cannot remarry her husband unless she remarries a second man and get a divorce from him.

 

 

Validity of a Divorce Obtained from Iraq

A divorce decree obtained in a foreign jurisdiction is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits on issues related  to Islamic divorce to State and Federal Courts, and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad.

Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

Palestinian Islamic Divorce of West Bank in USA

By

Professor Gabriel Sawma

 

1-Introduction

The political history of Palestine, including the West Bank, Gaza Strip and East Jerusalem, has produced a particular set of laws and jurisdictions since the beginning of the twentieth century. Until World War I, laws in Palestine were passed and courts established by the Ottoman Empire authorities, then came the British Mandate authorities, then the Jordanian government in the West Bank and East Jerusalem, and the Egyptian administration in the Gaza Strip; then the Israeli occupation authorities and, finally, the Palestinian Authority.

After the establishment of the State of Israel in 1948, the West Bank was annexed by the Hashemite Kingdom of Jordan, which embarked on unifying the laws on the East and West Banks.  Under the Jordanian law, the family law for the Muslims is governed by the system of Islamic Shari’a courts that have jurisdiction on the family law, known as the Jordanian Personal Status Law (JPST). This law, which governs the Muslims of Jordan and West bank in the marriage, divorce, custody of children, and inheritance, is based on Islamic Shari’a.

In terms of substantive law, and until 2001, the West Bank courts applied the Jordanian Personal Status Law of 1976, which was replaced by Law of 36, 2010. This article covers the law of divorce by men in the West Bank.

 

2-Divorce in the Jordanian Personal Status Law

Islamic marriage is presented by the Jordanian law as a contract giving rise to rights and duties specific to each spouse; the husband must pay dower and maintenance to his wife, treat her well and provide a home for her. The marriage can be dissolved extra-judicially by the unilateral repudiation of the husband; by court decision on specific grounds presented by the wife or if the marriage has been concluded irregularly; or by mutual consent involving a final Talaq (termination of the marriage) by the husband in exchange for a financial consideration by the wife (khul’).

In Arabic, the term talaq means termination of the marriage by the husband. Islamic divorce may be given either in the present time, or may be referred to a time in future. It may be pronounced before or after consummation. It may be given by writing as well as verbally, and in Arabic or in a different language.

A divorce pronounced by writing, should be accompanied by the ‘intent’ to divorce.  In other words, it must be clear that the husband’s intention is to divorce his wife.

The husband may delegate a third person to divorce his wife, and he may give the wife authority to divorce herself. In the event the wife is given authority by her husband to divorce herself, such a divorce will be considered “ba’in” (irrevocable.) A divorce by the inebriated, astounded, coerced, imbecile and unconscious [man] does not take effect. Each divorce is considered recoverable, except for the one that complements the three pronouncements, as well as the divorce that precedes the consummation of marriage.

 

3-ISLAMIC LAW IS THE PRIMARY SOURCE OF THE JORDANIAN LAW

Article 2 of the Constitution of Jordan states that “Islam is the religion of the Jordan and Arabic is its official language.” This requires discussion of what constitutes a legal divorce from the view point of the Jordanian law.

Talaq (divorce, repudiation) means dissolution of marriage by the husband. It has to be expressed clearly, ( talaq sarih,) whereby a husband delivers the sentence in direct and simple terms, as if he were to say, “I have divorced you,” or “you are divorce,” or “I divorce my wife”.

Under Islamic law, a husband may delegate his unilateral right to talaq to his wife. This is known as Talaq al-Tafweed (divorce by delegation). He still retains his right of talaq but he also permits his wife to pronounce divorce upon herself. He can also delegate a third person to initiate divorce on his behalf.

The divorce initiated by the husband is effective if he is of sound understanding, and mature age. A divorce by a husband who is under the influence of alcohol, astounded, coerced, imbecile and unconscious shall not take effect. The astounded is the man who lost his discretion due to anger or infatuation or else whereby he does not know what he says.

The divorce that is associated with a number either by utterance or by sign and the divorce that is repeated in a single council shall not effect but one pronouncement of divorce. This means a divorce by husband pronounced three consecutive times in one session, will be considered one divorce only, not three.

 

4-Recognition of Islamic Palestinian Divorce Obtained from the West Bank

A divorce decree obtained in a foreign jurisdiction by resident of the United States is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

Egyptian Islamic Divorce in USA

 

By

Prof. Gabriel Sawma

 

Chronology

The family laws for the Muslim community in Egypt are not codified in one law; they are scattered among different laws.  Islamic law, however, remained the most important element to family law. The law of Qadri Basha from the 19th century, which was based on the Hanafi School of Sunni  Jurisprudence, although never officially adopted as legislation, it served, nevertheless, as the major reference for Egyptian Shari’a courts, as well as for the courts of other Middle Eastern countries. Since the last quarter of the nineteenth-century, Egyptian legislature enacted reforms in several laws effecting important changes to the law of Qadri Basha.

Among those reforms undertaken were Law No. 25 of 1920 and Law No. 25 of 1929. Under these two laws, the legislators recognized four situations in which a woman could sue for divorce: (1) husband’s failure to provide nafaqa (maintenance); (2) contagious or dangerous disease of the husband; (3) desertion; and (4) maltreatment by the husband. Such reforms were done outside the scope of the strict Hanafi teachings and adopted the more liberal and equitable teachings of the Maliki School. Muslim Egyptian jurists call it “takhayyur”, or selection. For more on Women’s divorce laws in Egypt, see our article on this link:

http://gabrielsawma.blogspot.com/2011/09/islamic-women-divorce-laws-in-egypt.html

 

Islamic Egyptian Divorce Initiated by Men

A Muslim Egyptian man can divorce his wife unilaterally by a simple declaration of divorce made before a civil state officer called ma’dhun. The husband does not have to justify his decision, nor give a valid reason for divorce. The law of 1920 requires the husband’s intention to divorce his wife, and makes the divorce illegal if the husband attaches a condition to his utterance of divorce, or pronounces the divorce under duress. In the older version of the Egyptian family law of Qadri Basha, the code stipulated, in fact and expressly, that “repudiation (i.e. divorce) pronounced even under duress or by joke will produce its legal effects.” The older version likewise considered as valid “any repudiation pronounced by a husband in case of willful drunkenness caused by a forbidden drink.” But that law has been amended. Under the current law in Egypt, it would be illegal for a man to divorce his wife in a state of intoxication, or under duress.

Under the old law, a Muslim Egyptian husband was allowed to divorce his wife by stating three times, consecutively, “I divorce you”. Such a triple divorce made in one time is equivalent, under Law No. 25/1929 to a single, revocable divorce. Thus, to be considered irrevocable, a triple divorce must be done in three separate pronouncements, not in one sitting.

 

Registration of Divorce

Since 1985, the Egyptian law requires the divorce to be registered by a state official called ma’dhun, such registration should be done within thirty days after it was announced. The ma’dhun must inform the ex-wife in person through a process of notification. Before 1985, notification to the wife was not required; she would know about the divorce by someone else, or following the death of her husband and finding herself denied inheritance from his will. As a result, and under those conditions, the children born of the marriage were considered illegitimate. Article 23 of Law No. 100/1985 stipulates that if the husband does not follow these procedures, he will be subject to a prison term of up to six months and/or a fine not to exceed 200 Egyptian Pounds. The ma’dhun also risks imprisonment and fine if he violates these procedures; he can also be dismissed or suspended from his job up to one year.

No special expressions are necessary to constitute a valid divorce; but it is necessary that the words used must indicate clearly the intention of the husband to divorce his wife.

 

Recognition of Islamic Divorce Obtained from Egypt

A divorce decree obtained in a foreign jurisdiction by resident of the United States is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought, and the court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

 

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://islamicdivorceinusa.com/about-2/

Egyptian Divorce and U.S. Immigration

Egyptian Divorce and U.S. Immigration 

By

Prof. Gabriel Sawma

 

In Egypt, a Muslim husband can end his marriage unilaterally by a simple willful declaration made before the civil state office (ma’dhun) without the need to justify his decision, nor prove the existence of a valid reason.

Article 3 of Decree-Law No. 25/1929 states that triple repudiation must be done in three separate pronouncements, not in one sitting, when the marriage is consumed, or in the same time whether the marriage is consumed or not.

Repudiation is revocable during the woman’s waiting period (‘iddat), meaning during her first three menstrual cycles after repudiation. The marriage is then considered simply suspended. The husband can decide at any time during this term to end the separation, by words or acts. A simple resumption of spousal relations and life together is sufficient. If the wife is pregnant, it is proof of the resumption of spousal relation; as well as her recognition of the fact that she had not finished her ‘iddat period when she was informed that her husband wanted her back. At the end of the ‘iddat period and in the absence of resumption, the spousal relations are dissolved and repudiation becomes irrevocable.

 

Recognition of Egyptian Divorce and U.S. Immigration

A divorce decree obtained in a foreign jurisdiction by resident of the U.S. is entitled to recognition under the principle of comity unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The courts in the U.S. will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgments it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the State is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also traveled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

 

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://islamicdivorceinusa.com/about-2/

Saudi Divorce in USA

Saudi Divorce in USA

By

Prof. Gabriel Sawma

 

Introduction

The modern Kingdom of Saudi Arabia was founded in 1932 by King Abdul-Aziz Al Saud. It earns its position as the location of the holiest shrines in Islam, Mecca and Medina. This status is significant for the preservation of Islamic heritage. Muslims from all over the world turn to Mecca for their five daily prayers. Mecca and Medina are place of pilgrimage for millions of Muslims from around the globe. Saudi Arabia’s Islamic tradition, namely Wahhabi teachings, did not make a smooth transition to modernity. From the beginning, the ruling Saud Family stumbled across several obstacles when they introduced modern technologies to their country, for example, cars, television, computer among other innovations. The rulers found oppositions from conservative religious leaders who were overcome as a result of a combination of force and negotiations.  I remember the days when the government in Saudi Arabia decided to build a television station. That decision was met with violence in the country by some ultra-religious elements of the Saudi society.

But the accommodation between the old and new became important after the discovery of huge quantities of oil under the desert of Saudi Arabia. With the discovery of oil in the 1930s, Saudi Arabia became strong economic power. The country became wealthy and was able to build it economic and material infrastructure and transform its desert beyond recognition. I have been visiting Saudi Arabia and the Arabian Gulf region since the early 1970s, and have seen how the country developed to what it is now.

 

Sources of Islamic Family Law in Saudi Arabia

The Kingdom of Saudi Arabia is ruled by Islamic Shari’a (divine law). To Saudi citizens and to believing Muslims everywhere, Allah (God) revealed his final law to govern all aspects of human life to Muhammad, Prophet of Islam. Those revelations descended on him between 610 and 632 AD; they were collected in a book called the Qur’an. Muslim calls it the “Book of Allah”; they believe to be the actual words of God that Muhammad transmitted literally to mankind.

Two hundred years after the death of Muhammad, (632 AD), Muslim theologians started collecting the words and actions attributed to the Prophet. Those collections are knows as Al-Ahaadith al-Nabawiyya al-Sharifah (divine prophetic sayings). The saying and deeds of the Prophet is called Sunnah. Muslims says that the compilations of the Sunnah were transmitted from generation to generation of reports about the Prophet. Each transmission, accompanied by a list of individuals who narrated it one to the other down through history; this is known as Hadith. Together the Qur’an and Sunnah constitute the divine sources of Islamic Shari’a. These two elements are the most important sources in Saudi family law.

But what if the Qur’an and the Sunnah do not address a legal issue that may arise in the future? Early Muslim theologians created a concept called Ijma’ or consensus.  The concept of Ijma’ is an attempt by Muslim theologians to finding solutions, collectively, to a problem or issue, which has not been addressed in the Qur’an and Sunnah. The aim of Ijma’ is to fix issues that had been in dispute among Muslims, and when fixed, they became the third –none-divine- element of Islamic Shari’a. This process of finding solutions to problems that are not address by the Qur’an and Sunnah is called by Muslim theologians ‘science of law’ (‘ilm al-fiqh, علم ألفقه). Thus a fiqh, is an individual attempt by Muslim jurists to address an issue that is not covered by the Qur’an and the Sunnah. This third source of Islamic shari’a is adopted by the Saudi family law.

Muslim developed a fourth source of none-divine Islamic Shari’a of Qiyass. It is a restricted form of personal interpretation, or reasoning by analogy. Mulsim theologians define Qiyass as “establishing the relevance of a ruling in one case to another case because of a similarity in the attribute (reason or cause) upon which the ruling was based.” Qiyass must follow the cause of the problem (Arabic ‘Illah, عِلَّة). Muslim jurists resort to Qiyass often when new cases occur which were not provided for in the Qur’an, in the Sunnah, or in the Ijma’. In other words, they compare one thing with another to see if it is equal or not. For example, if a Muslim asks a jurist about using illegal drugs, which are prohibited for the reason of causing harm to the brain. But how can a Muslim jurist determine the cause? This is done by comparing illegal drugs to prohibition of alcohol in Islamic Shari’a. These both substances intoxicate the brain and, by extension, they both hinder the performance of religious duties.

In addition to these four elements of Islamic law, Saudi family law takes into consideration, tribal traditions. Many Royal decrees take this point into account.

 

The Divorce Law in Saudi Arabia

Under Islamic Shari’a (law), marriage is a contract, entered into by female and male. The contract contains a provision of Mahr. Once the marriage fails, Muslim law allows the parties to separate from one another. Divorce by men is generally referred to as Talaq (repudiation). In Arabic, the verb in past tense is “tallaqa” means ‘let go’ or ‘released’ from the marriage bond. Divorce by husband can be take effect by (1) Talaq proper, and (2) Talaq al-tafweed. The first category and the most comprehensive, Talaq proper, is the husband’s right to divorce his wife by making a pronouncement that he divorces his wife and that the marriage is terminated. Talaq al-tafweed is a power of attorney given by the husband to a person to proceed with divorce on behalf of the husband.

This blanket right given to men leaves no doubt that man in Saudi Arabia enjoys more extensive rights than woman. The right of divorce granted to men must be pronounced with the intention to divorce, as for example, “Your are divorced,” or “I divorce you,” or “I have divorced you,” or “I divorce my wife forever and render her haram (forbidden) for me.” The man can divorce his wife without citing any cause. He can divorce his wife without her presence, and may not inform her of his decision. The divorce can be either revocable, which gives the husband an opportunity to reconsider the decision, or irrevocable, which is done be the third pronouncement of Talaq. When a third declaration of divorce is pronounced by the husband, at shorter intervals or immediate succession, the divorce becomes final and the parties are not allowed to remarry unless the wife marries a second man and obtain a final divorce from him.

In Saudi Arabia, the husband goes to the Personal Status Court and records his divorce in the presence to two witnesses. He obtains a divorce certificate from the judge, who is a learned man in Islamic Shari’a. The divorce certificate is authenticated by the Ministry of Justice in Saudi Arabia. You may see the form on this link: http://www.moj.gov.sa/ar-sa/Courts/eForms/Pages/frm_Divorce.aspx

The decree is then authenticated by the Ministry of Foreign Affairs and then by the U.S. Embassy.

 

Recognition of a Saudi Divorce in the U.S. under the Doctrine of Comity

A divorce decree obtained in a foreign jurisdiction by resident of the U.S. is entitled to recognition under the principle of comity unless the decree offends the public policy of the state in whose jurisdiction recognition is sought. The courts in the U.S. will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgments it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the State is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 or legal advice on the information provided and related topics, please contact the author.

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://islamicdivorceinusa.com/about-2/