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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/

Saudi Divorce and U.S. Immigration

Saudi Divorce and U.S. Immigration

By

Prof. Gabriel Sawma

 

Introduction

Saudi Arabia is a Kingdom established in 1932 by King Abdul-Aziz. It is the only country among Muslim nations whose constitution is the Qur’an and the Sunnah, and whose source of legislation is Islamic Shari’a which constitutes the Qur’an, the Sunnah, Ijma’ and Qiyass. The Qur’an is regarded by Muslims as the revelations of God descended in the seventh century on Muhammad, Prophet of Islam, over a period of twenty-two years in Mecca and then in Medina. Sunnah consists of the sayings and deeds attributed to the Prophet. Those records of Prophetic words and deeds were compiled in the middle of the ninth century. Ijma’ is the unanimous consensus of Muslim jurists of a particular age on a specific issue. Ijma’ derived its authority as a source of law from the Qur’an and Sunnah. Qiyass is a restricted form of personal reasoning or interpretation; it is reasoning by analogy whereby a Muslim judge issues his ruling based on illa, the reason or effective cause that does not violate Islamic Shari’a.

In addition to the above, Saudi Arabia has another source of legislation in the form of Royal Decrees, issued by the King. Those decrees are known as rules and regulations, such as the law of corporations, commercial law, and the law organizing judiciary and others, all of which must comply with Islamic Shari’a. Royal Decrees take into consideration local and tribal traditions.  There are Four Schools of Jurisprudence in Sunni Islam: Hanafi, Shafi’i, Maliki, and Hanbali. The dominant School in Saudi Arabia has been the Hanbali School. This was confirmed by a Royal edict in 1928 by King Abdul-Aziz.

According to Sction 2 of Article 5 of the Saudi Judiciary law, cases involving family law belong to the Personal Status Courts, which were known previously as Al-Mahkamah al-Jiz iyyah Lil Damaan wal Ankihat (المحكمة الجزئية للضمان والأنكحة).

 

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 site france cialis.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 Arabian Child Custody Cases in U.S. Courts

SAUDI ARABIAN CHILD CUSTODY CASES IN U.S. COURTS

BY

PROF. GABRIEL SAWMA

 

 

This article is written to address the issue of recognizing, by U.S. courts, divorce decrees obtained from Saudi Arabia involving custody of children. In most cases, a client needs a lawyer immediately; he or she returns to the first lawyer they can find, and who may not be familiar with international child custody law.Roblox Free Unlimited Robux and Tix

Article 1 of the Constitution of Saudi Arabia states that “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital”. God’s book is the Qur’an; the Sunna of His Prophet is the sayings and deeds attributed to Muhammad, the Prophet of Islam. The school of jurisprudence governing the law of marriage, divorce and child custody is the Hanbali School in Sunni Islam.

Saudi Arabia is a not party or signatory 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.  This is the case also for all legal matters involving child custody. Thus the Hague Convention does not apply; instead, the Uniform Child Custody and Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) apply to the child custody decrees obtained from Saudi Arabia. In the UCCJA, “state” is defined as including foreign countries, and therefore, the act applies internationally. Unless specifically identified as a U.S. state, the word “state” in article 23 of UCCJA refers to both U.S. states and foreign countries. It is important to note that the UCCJA is not reciprocal with foreign countries. U.S. states deciding custody jurisdiction will treat any foreign country’s court just like a U.S. court, but foreign countries’ courts, do not use the UCCJA.

In Saudi Arabia, issues related to marriage, divorce and custody of children, are based on Islamic law, according to the Hanbali School of Jurisprudence. The primary concern of the judicial system in Saudi Arabia in deciding custody cases is that the child born of Saudi parents be raised in accordance with the Islamic faith. Such cases are handled by the first layer of Islamic “Shari’a” courts known as Personal Status Courts, whose function is to adjudicate matrimonial cases, including custody of children.

 

THE JUDICIAL SYSTEM IN SAUDI ARABIA

Since the creation of Saudi Arabia in 1932 by King Abdul Aziz, several “Administrative Committees” with judicial powers have been periodically created. These “Administrative Committees” had jurisdiction over civil, commercial, administrative and criminal case and disputed arising out of the implementation of several laws and provisions. On April 2, 2005, a Royal Order was issued which approved principle amendments to the organization of judiciary in the country, including the establishment of specialized courts for the first time, in the areas of labor, commercial, domestic, and criminal. On October 1, 2007, King Abdullah bin Abdul-Aziz issued a Royal Decree approving a new body of laws regulating the judiciary and the Board of Grievances. The purpose of the new laws is to provide higher judicial standard. Under the new Judiciary law of 2007, the court system of Saudi Arabia is composed of: (1) High Court; (2) Courts of Appeals; and (3) First-Degree Courts, which are composed of the following:

  • General Courts;
  • Criminal Courts;
  • Personal Status Courts; and,
  • Labor Courts.

Marital disputes including custody of children lies under the jurisdiction of “Personal Status Courts.”

 

CUSTODY DISPUTES

Non-Saudi women in general are not awarded custody of children. A non-Saudi, Arab Muslim woman, may not be granted custody of her children unless she is residing in Saudi Arabia, or the father is not Muslim. If both parents are non-citizens of Saudi Arabia and not Muslims, the Personal Status Court may refer their marital dispute to the court of their nationality. In some cases, Saudi authorities may deport both of them. An American wife married to Saudi citizen may find herself summarily divorced, deported, and deprived of any right of visitation with her children born of the marriage. Islamic law does favor men over women in the dissolution of marriage; whereby a husband may divorce his wife any time of his choosing, with or without reason, by merely stating three times “I divorce you”. The husband does not have to notify his wife of the divorce. Saudi laws require that all individuals visiting that country must have a sponsor by Saudi citizen in order to get an entry visa.

Leaving Saudi Arabia requires permission to exit the country. It is impossible to leave the country legally without the express permission of the Saudi husband. A pregnant woman is required to stay in Saudi Arabia until she gives birth of a child; the child is considered Muslim if his father is Muslim. Additionally, a Saudi husband has the right, under Islamic law, to marry up to four wives at one time. An American woman married to a Saudi man may find herself a co-wife in Saudi Arabia, sharing her husband with up to three other women.

The general rule in Islamic law is that a Muslim woman is prohibited from marrying non-Muslim. A custody dispute between a Saudi mother and a foreign father is determined by the Personal Status Court. If the foreign father wins custody of his children, he may need permission from the Saudi mother to remove the children from Saudi Arabia. The law of Saudi Arabia does not grant Saudi citizenship to children born of Saudi mothers and non-Saudi fathers.

 

CUSTODY IS BASED ON AGE AND GENDER OF CHILDREN

Under Saudi law, a mother is granted custody of her male child until the age of nine, and female child until the age of seven. However, Personal Status Courts may make exceptions to these general rules, taking into consideration the interest of the child. If the mother who has custody of her children moves to another country, the father is entitled to custody. Personal Status Courts may deny custody to the mother if the mother is incapable of safeguarding her children or bringing them up to religious beliefs other than Islam. The mother can lose her custody to her children if she re-marries a non-Muslim, or residing in a home inhabited by non-relatives. A divorced Muslim woman who has custody of her children must live in a house with her relatives. If the husband is sentenced to prison, the court may grant custody to his father; even if the Saudi father has made clear his wishes that mother has full custody.

 

ARE SAUDI CUSTODY ORDERS RECOGNIZED IN USA?

Most Western countries abide by the Hague Convention, Saudi Arabia does not. Thus, the abduction of a child from USA to Saudi Arabia is not a crime under Saudi law unless there is already a Saudi court order regarding custody of the child. But if the parent is entitled to custody according to a Saudi court decision, then Saudi Arabian Personal Status Courts would consider parental child abduction a criminal offence. Western lawyers and judges face difficulties for child abduction cases when dealing between jurisdictions like Saudi Arabia.

There are cases where husband divorces his wife in Saudi Arabia and obtains a custody decree of his children. Would such a decree be recognized in the United States if the wife resides here and the husband resides overseas? The general principle is that a divorce decree obtained in a foreign country is entitled to recognition under the principle of comity provided that the decree was issued by a court of jurisdiction, and does not offend public policy considerations. This means that state courts 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 a sister state. As such, each state can decide for itself which foreign country judgments it will recognize and which it won’t. Recognition of a foreign divorce decree may include financial issues between the parties such as spousal and child support, distribution of assets including the Mahr agreement, and child custody.

Seeking recognition of a Saudi divorce decree in U.S. courts, including custody order requires knowledge of the law of civil procedures and Islamic law according to the Hanbali School of Jurisprudence of Saudi Arabia. A Saudi Personal Status Court who issues an order of custody keeps its jurisdiction over the case no matter what the court in the U.S decides. Islamic Shari’a courts do not recognize civil marriages or civil divorces among Muslim couples by non-Islamic courts.

International child custody involving Saudi nationals requires a legal counsel who understands the law of custody in Saudi Arabia, something that most general legal practitioners would not ordinarily deal with. International clients, whether living in the United States or abroad, can suddenly find themselves dealing with, or being accused of, international child-abduction.

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 acheter du cialis pas cher.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/

 

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

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

Pakistani Divorce and U.S. Immigration

 

By

Professor Gabriel Sawma

 

Citizens from Pakistan divorce their spouses and come to the United States seeking U.S. citizenship. They present their divorce decrees to the Immigration offices. But can these decrees be recognized by the immigration authorities?

In a recent case, I was asked to testify as Expert Consultant on Islamic divorce in USA, the client has been living in the United States since 1990. He claimed that he was married in Pakistan, but then, his wife obtained a divorce decree in Pakistan on the basis of desertion and nonpayment of maintenance for two years. He was able to get the Green Card after he remarried to an U.S. citizen. At a much later time, the U.S. Citizenship and Immigration Services sought and obtained a court order to withdraw his Green Card on the basis that the U.S. Embassy in Pakistan conducted its own investigation and found out that the divorce in Pakistan was not recorded in the Union Council Registrar.

The lawyers who worked on this case were able to regain the client’s Green Card on technicalities. The case raises an important question about the fact that a divorce obtained by the wife differs from the divorce announced by the husband. A divorce obtained by the wife requires a judicial act by the Family Court, while a divorce obtained by the husband is obtained ninety-days after the husband INFORMS the Union Council of his divorce. In this article, I will be talking about the divorce obtained from the Family Court for “non-support” by the husband for two years.

 

1-Divorce by Wife:

Historically, divorce in Pakistan has been considered the prerogative of man. Under the rules of Islamic Shari’a, man has the unilateral right to divorce his wife, with or without any reason, and does not need a judicial act. But this notion of male dominance in the matter of divorce has been reformed overtime. Women in Pakistan now have the ability to initiate divorce and secure it within a short period of time. One of those reforms is embedded in The Dissolution of Muslim Marriage Act of 1939. The Act intended to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women, and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. Thus the real purpose of the Act, was to introduce reforms that would improve the status of women and grant them some judicial relief by establishing grounds for divorce, most of which were not recognized by the prevailing Hanafi School of Jurisprudence.

The Hanafi School is one of Four Schools of Jurisprudence (or Schools of Thought) in Sunni Islam. Under this School, the husband’s impotence and the option of puberty were the husband’s discretion, failure to maintain, failure to perform marital obligations, severe or chronic (physical or mental) defects, and cruelty or maltreatment towards the wife. . . all of these were recognized as rights to the husband. In addition, the Act granted a female minor given in marriage by her father or grandfather before age fifteen the right to repudiate the marriage any time before reaching eighteen years of age, provided the marriage was not consummated.

The Dissolution of Muslim Marriages Act of 1939 granted the wife, the right to claim desertion as ground for divorce if her husband was a missing person. In other words, the reform did reduce the waiting period for a deserted wife’s divorce from the traditional ninety years after a husband’s birth to a simple requirement that the whereabouts of the husband not be known for a four-year period. Furthermore, no provision was made for divorce in cases of desertion owing to a husband’s unwarranted absence and so the importance of the presence of the husband to preserve a marriage was not recognized.

The Act decreed that nonsupport for a period of two years is sufficient grounds for a divorce suit. A grace period was provided, during which time if the husband could satisfy the court that he had resumed performing his conjugal duties the decree would be set aside. It is this provision that applied to the divorce decree obtained by the wife in our case.

 

2-The Judicial Act

When a husband stops supporting his wife for a period of two years, the wife may seek a judicial divorce from the Family Court. Issues pertaining to the family law are governed exclusively by courts established specifically for these matters, the Family Courts. The function and jurisdiction of these courts were established by the West Pakistan Family Courts Act of 1964.

It is important to keep in mind that where a Family Court passes a decree for the dissolution of marriage solemnized under the Muslim Law, the Court shall send by registered post, within seven days of passing such a decree, a certified copy of the same to the appropriate chairman referred to in Section 7 of the Family Laws Ordinance of 1961, and upon receipt of such a copy, the chairman shall proceed as if he had received an intimation of Talaq required to be given under the said Ordinance. In other words, the Court will communicate directly w ith the Union Council without a request from the husband or wife.

Notwithstanding anything to the contrary contained in any other law, a decree for dissolution of a marriage solemnized under the Muslim Law shall: (a) not be effective until the expiration of ninety days from the date on which a copy thereof has been sent under subsection (2) to the chairman; and (b) be of no effect if within the period specified in clause (a) a reconciliation has been effected between the parties in accordance with the provisions of the Muslim Family Laws Ordinance of 1961.

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: <a href="http://edition acheter cialis 5mg ligne.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html”>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/

 

 

 

Muslim Divorce in Tunisia

Muslim Divorce in Tunisia

By

Prof. Gabriel Sawma

 

 

Background

The Republic of Tunisia (al Jumhuriyyah al-Tunisiyyah) is a North African nation with population of approximately 11,000,000; its capital is Tunis. The country is bordered on the west by Algeria and by Libya on the south. The Sahara Desert lies in the southernmost part.

Tunisia became a republic in 1957, and Habib Bourguibas was elected yjr first president. He maintained a pro-Western foreign policy. During his term as president, Bourguiba issued a Code of Personal Status (CPS), called ‘majala’ in Arabic. The ‘majala’ is considered the most contemporary and advanced family law of all times in the Arabic world. CPS abolished polygamy, established legal equality between men and women in the case of divorce, banned marrying of minors against their will, abolished the right of a father to force his daughter to marry against her will, changed the legal age for marriage of a man to 20, and for woman to 17, improved the inheritance laws in order to protect the rights of women, made it legal for a Muslim woman to marry non-Muslim men and gave free education for both sexes.

On October 2, 1987, Bourguiba appointed Zine al Abidine Ben Ali, a 51-year-old former army general to be prime minister. A month later, the new prime minister argued that the president was unfit to lead the nation because of medical problems. Ben Ali ousted Bourguiba on November 7, 1987 in a bloodless coup on the bases of medical incompetency.

On January 14, 2011, following a month of protests against his rule, Bin Ali was forced to flee to Saudi Arabia with his wife and their three children.

 

Code of Personal Status (CPS)

The Code of Personal Status of Tunis (the Code), is based on Islamic Sharia with major amendments. Article 1 of the 1959 Constitution declares that Islam is the religion of the State, and Article 38 declares that religion of the President must be Islam.

The Code was promulgated in 1956 and has been amended on June 19, 1959 by law 59-77; April 21, 1964 by law 64-1; February 18, 1981 by law 81-7; and July 12, 1993 by law 93-74.

Notable features of the Code include Article 5 which sets the minimum age of marriage as 20 for males and 17 for females. Marriage below these ages requires special permission from the courts, which may be given only for pressing reasons and on the basis of a clear interest of the couples or benefit to be realized by the parties. Marriage below the legal ages stipulated by the law requires the consent of the guardian and since 1993, of the mother. In the event they both refuse, the judge will have final determination.

Another feature includes a provision whereby a marriage can be proven only by official document as prescribed by Article 4. Article 18 outlawed polygamy altogether. It stated unequivocally that polygamy was forbidden. An attempt at marrying again while one was still married was punished with imprisonment of a year and/or a fine of 240,000 Franks (approximately $500), which represented a huge amount for many Tunisians when the law was promulgated in 1956.

Article 23 states that during the marriage, both parties are to treat each other well, to fulfill their marital duties as required by custom and usage, and to cooperate in running family affairs, including the upbringing of their children. Being head of the family, the husband is responsible for the maintenance of his wife and children, while the wife is to contribute to family maintenance if she has the means to do so.

 

The Law of Divorce in Tunisia

The divorce procedures in the Code of Personal Status are covered by Chapter 2, Articles 29 to 33. Contrary to the rest of Muslim countries, whereby a divorce by man is accomplished without judicial act by simply pronouncing talaq, three times; divorce in Tunisia is strictly a judicial matter; extra-judicial talaq is not valid in Tunisia. Husband’s right granted by Islamic Sharia to announce a triple talaq is not legal in that country. However the Code kept the mahr provision in the Islamic marriage contracts. For more information about the mahr, see our article, http://muslimdivorceinusa.com/the-mahr-provision-in-islamic-marriage-contracts/

The court may grant divorce based on (1) agreement of the spouses (Art. 3-1); (2) a petition from one spouse by reason of injury caused by the other (Art. 3-2); (3) the will of the husband or the petition of the wife (Art. 3-3); (4) the court may award compensation for injury caused by the divorce. If the injured spouse is the wife, this may take the form of a lump sum or of regular alimony payments until she dies or remarries or otherwise her social circumstances change (Art. 3-4).  A woman was liable to pay compensation to her husband if necessary.

Article 23 of the Code made the wife responsible for contributing to the expenses of the household and to the financial support of children, if she had the financial means to do so. It expanded the right of mothers to have custody of their children. It made adoption of children legally valid, and modified the rules of inheritance for the spouse and female descendants over male cousin in some specific kinship configurations.

With the revolution that took place in Tunis in the last two years, it is hard to determine whether this revolution will cause any changes to the Tunisian Code of Personal Status. If the current government determines to implement Islamic Sharia, then the current Code of Personal Status will be the first victim; and all the amendments during the last half a century to modernize the Code might be replaced by Islamic Sharia provisions.

 

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 at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; 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. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://islamicdivorceinusa.com/about-2/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Muslim Divorce in Bangladesh

Muslim Divorce in Bangladesh

By

Prof. Gabriel Sawma

 

Introduction to Bangladesh

Bangladesh lies on the northern coast of the Bay of Bengal; the country is surrounded by India, with a small common border with Myanmar in the southeast. Bangladesh is low-lying riverine land traversed by the many branches and tributaries of the Ganges and Brahmaputra rivers. Tropical monsoons and frequent floods and cyclones cause heavy damage in the delta region.

In ancient times, Bangladesh was a Buddhist country, but by the 10th century, but by the 10th century AD, it was ruled primarily by Hindu.  In 1576, Bengal became part of the Mongolian Empire, and the majority of East Bengalis converted to Islam. The country was ruled by British India from 1757 until Britain withdrew in 1947. And Pakistan was founded out of the two predominantly Muslim regions of the Indian subcontinent. And, for almost twenty five years following its independence from the British Empire, Bangladesh history was part of Pakistan’s. The two regions were known as West Pakistan and East Pakistan; they were united by the religion of Islam, but their people were separated by one thousand miles of Indian territory. On March 26, 1971, a Civil war broke out between the two regions that ended in the independence of Bangladesh in 1974.

 

Islamic Divorce Law of Bangladesh

The law of divorce for Muslims in Bangladesh is regulated by the Muslim Marriages and Divorces (Registration) Act, 1974 and by the Muslim Family Laws Ordinance of Bangladesh 1961).

The law of divorce in Bangladesh is based on Islamic Sharia according to the Hanafi School of Jurisprudence. Under the Muslim Family Laws Ordinance of Bangladesh, men may seek divorce by pronouncing talaq and giving notice to the Chairman of the Union (Parishad) or to other appointed official and a copy to his wife. The Chairman is then appoints an arbitration council, who attempts to reconciliation the conflict between the parties. If such efforts fail to resolve the marital dispute, then the divorce becomes effective after the iddat of three months is expired. If the wife is pregnant at the time of Talaq, the iddat expires when she gives birth to a child.

 

Divorce by Talaq

This is a right given to the husband by Islamic Sharia, to divorce his wife any time he chooses; with or without cause. Article 7 (1) of the Muslim Family Law of Bangladesh (1961) states that any Muslim man who wishes to divorce his wife, soon after the pronouncement of Talaq in whatever form he chooses, shall give a written notice of talaq to the Chairman of the Union. A copy of such notice is sent to the wife. Failure to do so will subject the husband to imprisonment up to one year or ten thousand taka, or both (Art. 7-2). When Talaq is done according to these provisions, it will take effect after ninety days from the day the notice was delivered to the Chairman.

After the Chairman receives the notice of Talaq, he will establish an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council “shall take all steps necessary to bring about such reconciliation.” (Art.7-4). If the wife is pregnant at the time of the notice, the talaq takes effect at the time she gives birth.

Once a divorce becomes final, the husband must record it before the Nikah Registrar.

 

Dissolution of Marriage by Wife

The mode of divorce initiated by women in Bangladesh differs from the right of divorce granted to Muslim men. In the previous segment we have seen that men can divorce their wives at will without court intervention. But when Muslim women initiate divorce, they have to go to court in order to get divorce decree. Following are the situation under which a Muslim woman in Bangladesh can divorce her husband:

The husband may delegate the right of talaq to his wife in the marriage contract. In the absence of a delegated right of Talaq, the Ordinance provides two grounds upon which women may seek dissolution of their marriage: nonpayment of mahr (dower) or failure to provide maintenance for a period of two years after a demand is made.

According to the 1939 Dissolution of Muslim Marriages Act, the wife is required to get a judicial divorce under the following grounds:

1-that the whereabouts of the husband have not been known for a period of four years;

2-that the husband has neglected or has failed to provide for her maintenance for a period of two years;

3-that he has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;

4-that the husband has been sentenced to imprisonment for a period of seven years or more;

5-that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

6-that the husband was impotent at the time of the marriage and continues to be so;

7-that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

8-that the wife was given in marriage by her father or other guardian before she attained the age of eighteen then repudiated the marriage before attaining the age of nineteen;

9-that the husband treats his wife with cruelty, such as assaulting her by physical ill-treatment; he associates with women of evil repute; attempt to force her to leads a immoral life; dispose of her property or prevents her from exercising her rights over it; obstruct her from the observance of her religious rights; or if he has more wives than one, and he does not treat her equitably in accordance with the injunctions of the Quran.

The Muslim Marriages and Divorces (Registration) Act provides for a mediation process over a period of three months before a divorce can become effective.

 

 

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 at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; 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. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://islamicdivorceinusa.com/about-2/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Muslim Men Marrying Non-Muslim Women

Muslim Men Marrying Non-Muslim Women

By

Prof. Gabriel Sawma

 

The Quran, a primary source of Islamic Sharia, permits a Muslim man to marry non-Muslim woman. It reads: “[be lawful to you in marriage] are chaste women from those who were given the Scriptures [i.e. Christian and Jewish women]”.

Early Muslim jurists ruled that the marriage of a Muslim man to a Christian or Jewish woman is considered “makruh” (not desirable) if both live in a non-Muslim country. In fact the second Caliph, Umar bin Al-Khattab (634-644), denied interfaith marriage for Muslim men during his term as “Amir al-Muminin” (Prince of the Believers, i.e. Muslims).

However, the majority of Muslim jurists in modern days do not prohibit a Muslim man from marrying a Christian or Jewish woman; this, in their view, ensures that over many centuries, the Islamic patriarchal society would gain more adherents to Islam relative to Christianity, Judaism and other co-existing religions. Additionally, a Christian or Jewish wife will face difficulty converting Muslim husband into their religion.

Following are the legal impacts of a Muslim man marrying Christian or Jewish wife:

 

1-Muslim Man’s Ability to Marry More than One Woman

Islamic Sharia does not prohibit a Muslim man, marrying a non-Muslim woman, from marrying more than one woman. Islamic Sharia allows a Muslim man to marry up to four wives at the same time. This means that, even though he is married to a Christian or Jewish wife, he can also marry up to four wives.

 

2-Children Born of Such Marriages are Considered Muslims

Under the rules of Islamic Sharia, children born of mixed marriages, involving a Muslim man and non-Muslim woman are considered Muslims. The religion of children born of a Muslim father always follows the religion of their father. It does not matter even if the child is baptized in the Christian faith; he will always be regarded as Muslim and governed by Islamic Sharia.

 

3-Custody of Children in Case of Divorce or Husband’s Death

In the event of divorce, or death of the husband, Islamic Sharia determines that in mixed marriages where the husband is Muslim and the wife is not, the wife will lose her custody to the children. Here is what the Sunni Schools of jurisprudence say on this matter: (1) The Hanafi School states that the “murtaddah” (i.e. one who converts from Islam to another religion) loses her custody immediately. According to this School, a non-Muslim woman loses her custody in the event of divorce or death of the husband. (2) The Shafi’i School forbids a “kafira” [infidel: Christian or Jewish woman] to have custody over a Muslim child; the text of this School reads: “no custody is given to “kafir” (non-Muslim, or infidel) over a Muslim”. (3) Hanbali School does not allow “ajnabi” [a foreigner, i.e non-Muslim] to have custody over Muslim. (4) In Maliki Jurisprudence, fidelity is in religion; this means a person outside the religion of Islam is not qualified to be “hadden” (Arabic, custody of children).

 

4-Wife Cannot Travel with her Children without Permission of the Husband

Islamic Sharia does not allow a divorced wife who has custody of the children to travel from a Muslim country with the children without permission of the husband. If the husband is dead, the wife can leave the country with the children provided that the guardian of the children, who has been appointed by the father before his death, or a guardian who has been appointed by a judge, permits the wife to travel with the children. Only then she can leave the country.

It is important to note here that the general rule in Islamic Sharia is that the wife cannot travel outside an Islamic country without permission of her husband.

 

5-Huband Traveling with the Children to an Islamic Country may decide to stay in his Home Country

Non-Muslim woman who is married to a Muslim man should know that if the husband travels with the children to his country and decides to stay with them in that country, she is not afforded protection of US law to bring the children back to the United States. If for example, husband travels with wife and children to any Muslim country in the Middle East and chooses to stay with the kids in that country, the wife may not be able to bring her children back to the US. The reason for that is the fact that Islamic Sharia will prevail by granting custody of the children to the husband in case of divorce or death of the husband.

 

6-Conversion of One Spouse to Islam

Under Islamic Sharia, if a non-Muslim woman is married to a non-Muslim man, and she converts to Islam, the marriage is suspended until her husband converts to Islam. In theory, she could leave the non-Muslim husband and marry a Muslim man. This is based on the Quran, which reads: “O ye who believe! [i.e. Muslims] When there come to you believing women refugees, examine them: Allah knows best as to their faith; if ye ascertain that they are Believers, then send them not back to the unbelievers [i.e. Christians and Jews]. They are not lawful [wives] for the unbelievers, nor are the [unbelievers] lawful [husbands] for them.” (Quran 60: 10).

If the non-Muslim husband converts to Islam, a new marriage is not needed. He can marry up to four women at one time.

 

7-Inheritance

The general rule in Islamic Sharia is that women inherit half the shares of men who have the same degree of relation to the deceased. For example, where the deceased has one son and one daughter, a son’s share is double that of his daughter’s.

A Christian or Jewish woman married to a Muslim man does not inherit from her husband because she is not Muslim. Only Muslim widow inherit from her Muslim husband. A non-Muslim wife does not inherit from her Muslim husband unless she is mentioned in his will as a beneficiary.

 

8-Muslim Women are prohibited from marrying non-Muslim Men

Every single country in the Middle East allows Muslim men to marry Christian or Jewish women but Muslim Women cannot marry Christian or Jewish men. Turkey is the only country in the Middle East that allows Muslim women to marry non-Muslim men through secular laws. In Islamic Sharia, a non-Muslim man must convert to Islam in order to marry a Muslim woman. The offspring of such unions are automatically Muslims and all Muslims are, by virtue of the Islamic Sharia, prohibited from leaving Islam.

In Islamic countries, a Muslim man or woman who converts from Islam to another religion will be subject to stiff penalties. In certain Muslim countries, the penalty can be death by execution.

 

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 at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; 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. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://muslimdivorceinusa.com/about-us/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com

Islamic Marriage Contracts in USA and Canada

Islamic Marriage Contracts in USA and Canada

By

Prof. Gabriel Sawma, Esq.

 

Definition

Islamic marriage is defined as a contract whose purpose is to start sexual relationship between man and woman, and legalizing of children. The Qur’an calls it “nikah”. Muslim scholars define Islamic marriage as “haqq al tamattu”, the right to enjoy sexual relationship between husband and wife. Being a contract, Islamic marriage brought about under coercion or fraud may be set aside at the request of the party whose consent was so caused.

Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage. The exact age of puberty may vary, based on physical and mental development of the child, but is generally reached by the age of fifteen.

 

Elements of the Islamic Marriage Contract

It is essential to the validity of the Islamic marriage contract that there should be a proposal (Arabic, ijab), and acceptance (qubul) made at the same meeting with the object of establishing immediate marital relation between the parties. Before the acceptance is pronounced, either party may withdraw from the negotiations.

An Islamic marriage must be accomplished with the presence of two male or one male and two female witnesses. A marriage contracted without witnesses is only invalid, and not void. An invalid marriage may be terminated by a mere repudiation on either party. Children born during the continuance of the contract are regarded as legitimate.

It is necessary to the validity of a marriage that the woman must not be the wife of another man, and that the man must not be the husband of four wives, that being the full number of wives permitted by Islamic Sharia. It is important to note that Islamic Sharia allows the husband and wife to have an agreement at the time of marriage that the wife should be at liberty to divorce herself from the husband, if he married another wife.

Another important component of the marriage contract is the mahr, amount of money or equivalent that the husband promises to pay his wife in the event of divorce or his death. For more on the mahr see, http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html

A marriage with a widow or a divorce woman before the expiration of the period of iddat, which it is incumbent upon her to observe on the death of her husband or on divorce, is void. The iddat of a woman arising on divorce is three courses, if she is subject to menstruation; if not, it terminates at the expiration of three months from the date of divorce. The iddat of a woman arising on widowhood is four months and ten days. But if the woman be pregnant, the period of iddat does not terminate until after delivery.

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 at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; 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. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

The Law of Marriage and Divorce in the United Arab Emirates

Background
The United Arab Emirates (UAE) is a federation formed from tribally organized seven sheikhdoms, or emirates, along the southern coast of the Persian Gulf and the northwestern coast of the Gulf of Oman, they include: Abu Dhabi, Ajman, Dubai, Fujairah, Ras Al Khaima, Shrjah and Umm Al Quwain. That region was designated as ‘protectorate’ under the British Empire. In 1968, the British government announced its decision to grant independence to the seven sheikhdoms, together with Bahrain and Qatar. The rulers of the nine territories attempted to form a union of Arab emirates, but were unable to agree on terms of the union. Bahrain became independent in August, 1971 and Qatar in September of that year; the rest of seven sheikhdoms became fully independent on December 1, 1971. On December 2 of that year, six of them entered into a union called the United Arab Emirates (UAE). The seventh, Ras al-Khaimah, joined in early 1972. The emirates formed the Federal Supreme Council (FSC), the highest constitutional authority in the UAE and the highest legislative and executive authority. It is also the council that draws up the general policies and approves the various federal legislations. Sheikh Zayed bin Sultan al Nahyan, ruler of Abu Dhabi, was elected by the Federal Supreme Council as President of UAE, Sheikh Rashid bin Said al Maktoum of Dubai, became Prime Minister.

In 2004, the President died, his eldest son and Crown Prince, Khalifa bin Zayed Al Nahyan, succeeded him as Ruler of Abu Dhabi and President of the UAE. In January 2006, Sheikh Maktoum bin Rashid Al Maktoum passed away and was succeeded by his brother, Sheikh Mohammed bin Rashid Al Maktoum.

Under the constitution of 1971, each of the seven emirates has its own ruler; and each, reserves considerable powers, including control over mineral rights, mainly oil and gas, and revenues. In the years following their independence, federal power developed gradually by constitutional means. The constitution established the positions of President and Vice President, each serving five-year terms; a Council of Ministers, led by a Prime Minister, a supreme council of rulers; and a forty-member Federal National Council (FNC).

The Judicial System in UAE
UAE law is based on Islamic legal principles and influenced by English common law and Egyptian legal traditions. The UAE Constitution permits each emirate to structure its own judicial branch of government. As a result, there are federal as well as local courts. Except for Dubai and Ras Al Khaimah–who maintain their own judicial systems–the other five emirates have joined the federal system. Although the legal procedures and laws applicable to courts in the individual emirates are fairly similar, there are differences, particularly where a special law has been enacted and applied in a specific emirate.

Article 7 of the constitution states that Islamic sharia (law) shall be the main source of legislation in the UAE. Article 94 guarantees the independence of the judicial branch under the Supreme Court of the Union. Judges are appointed by the president and their decisions are also subject to review by the Federal Supreme Council (FSC). The Supreme Court is vested with the power of judicial review and original jurisdiction over federal-emirate and inter-emirate disputes. The constitution also provides for the establishment of union courts of First Instance to adjudicate civil, commercial, criminal, and administrative cases. Judgments of these courts can be appealed to the Court of Appeals, then to the Court of Cassation (Supreme Court).

Sharia courts work alongside the civil and criminal courts in the UAE. Their primary function is confined to civil matters between Muslims and have exclusive jurisdiction to hear matrimonial cases. The jurisdiction of the sharia courts was expanded in certain emirates such as Abu Dhabi to include serious criminal cases, labor and other commercial matters. Dubai also added the Dubai Court of Cassation.

Personal Status Law (PSL) in UAE
In 2005, the UAE enacted Federal Law No. 28 (hereinafter, Law) to govern matrimonial issues in what is called Matters of Personal Status or Personal Status Law (PSL). The provisions of the Law apply to all emirates and cover rules over marriage, divorce, guardianship, maintenance (Arabic nafaqa) and inheritance. Article 1 makes the Law applicable to all Muslim citizens of UAE, to non-Muslim citizens who “have no special laws specific to their own sect or ‘millah’ (denomination) and to non-citizens if they do not want to apply their own laws.

Article 2 of the Law states that the provisions of the law are based on Islamic “fiqh” (jurisprudence), and if no ruling exists in Islamic jurisprudence, a determination will be made in accordance with the “prevailing opinion in the Sunni Schools in the following ranking: Maliki, Hanbali, Shafi’i, and Hanafi followed by “general principles of the Islamic sharia and social justice.”

Marriage in the UAE must be registered and married couples are required to pass health examination. Article 49 requires two mature, rational, and witnessed by two Muslim male witnesses for the validity of the marriage between two Muslim couples, although Christian and Jewish witnesses are acceptable if one of the couple is Jew or Christian. The Law does allow a Muslim man to marry a Christian or Jewish woman (Art. 48). The same article prohibits Muslim women from marrying non-Muslim men.

Article 39 requires that the marriage of a woman over eighteen must be approved by a male guardian, otherwise, the marriage will be considered “null” and the couple will be separated. Article 21 requires the husband to be (kafu’an) or suitable in social and economic terms to the wife at the marriage; it allows a woman or her guardian to “request an annulment when suitability is lacking.” Article 21 also gives a judge, the right to disallow marriages in which the groom is “double or more” the age of the bride.

The Law requires the husband to offer “mahr” to the wife, which become her own property. The “mahr”, which is a major element in Islamic marriage contract, can be paid up front (muqaddam) or deferred (mu’akhar). According to Article 116, women who have not received their “mahr” (dowry) before the intercourse (ghayr al-dukhuli biha), as required by the contract, can have their marriage annulled by judicial order. The Law allows the couple to include legitimate stipulations written into the registered marital contract. Such stipulations may be considered bases for annulment or divorce.

The Law defines marriage as a “contract that permits enjoyment (sexual) by the spouses of each other legally.” (Art. 19), whose purpose is to “strengthen and raise a stable family under the guidance (ri’ayat) of the husband, on the basis that it guarantees for both of them the ability to fulfill its charge of affection and compassion.” Article 56 commands that a husband has the right to obedience from his wife “in accordance with custom.” Article 63 states that the husband provides maintenance to his wife, which includes food, clothing, medical treatment, and services. A wife may lose her maintenance if she does not sleep with her husband, or refuses to move to the marital home, or leaves the home, or prevents her husband from entering the marital home, or refuses to travel with her husband, all without legitimate excuses (Art. 71). The law defines family structure in patriarchal terms under the guardianship of the husband with the wife obedient to him, taking care of the home and raising his children.

Adultery is illegal in the UAE. In 2005, a sharia court in the emirate of Ras al-Khaimah sentenced a female domestic worker to 150 lashes for becoming pregnant outside marriage. The UAE has not ratified the United Nations Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment (UN Convention against Torture).

The law permits a man to have as many as four wives at one time. He has the right to divorce his wife or wives, any time at his own will, without a judicial interference. Women by contrast, must obtain their divorce through a judicial order. In order for a woman to obtain a judicial divorce, she must prove that her husband has inflicted physical or moral harm upon her, has abandoned her for at least three months, or has not maintained ‘nafaqa’ and other financial benefits for her and for their children. Before such a divorce is obtained from the court, women are required by the federal law to go through “guidance” and “arbitration” in all the emirates. Articles 98 and 117 require the Committee of Family Guidance, followed by judge if the committee fails to reconcile the “dissent”. If the judge was unable to find a reconciliation, he will then appoint two other arbitrators for investigation and reconciliation within a period of ninety days, although the time “can be extended by court order,” as stated by Articles 118 and 119. The court has authority to appoint a third arbitrators if the previous ones could not reach a unanimous decision. After all these procedures have been consumed, the law places more obstacles before women seeking divorce on the basis of being harmed.

The Law states the situations in which a woman can obtain divorce without demonstrating harm. Article 100 allows a wife to seek divorce if the husband granted her power of attorney to divorce herself. Such permission is usually stated in the marriage contract, or granted by the husband to his wife at a later time during the marriage.

Article 110 allows a married woman to seek judicial divorce through khul’. This means that she relinquishes her right to the mahr. The khul’ process requires husband’s consent to the divorce; without his consent the court will not issue a divorce. Additionally, the husband has to be compensated financially before he agrees to the dissolution of the marriage sought by his wife. The law gives divorced fathers custody of female children above the age of 13 and male children above the age of 11.

It is important to note that a non-Muslim woman married to a Muslim man loses custody of her children in case of divorce when they reach the age of five, unless the judge rules otherwise, (Art. 145).

Recognition of UAE divorce in USA
A divorce obtained in the UAE without service of notice to the absent defendant is considered void and not recognized by the U.S. courts. Under the principle of estoppel, many jurisdictions will prohibit the spouse who consented to the divorce from attacking it later.

A divorce decree obtained in the UAE generally is recognized in a state court in the United States on the basis of a doctrine called “comity”, provided that both parties to the divorce receive adequate notice, i.e. service of process and, generally, provided one of the parties was a domiciliary in the UAE at the time of the divorce. Under the doctrine of “comity”, a divorce obtained in the UAE under the circumstances described above receives “full faith and credit” in the United States. A full faith and credit may be given to an ex parte divorce (where one party to the divorce action is absent) decree, states usually consider the jurisdictional basis upon which the foreign decree is founded and may withhold recognition and enforcement if not satisfied regarding domicile in the foreign country. If neither party to a divorce obtained domiciliary in the foreign country, such a divorce will be considered invalid.

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 at: gabygms@gmail.com  or call (609) 915-2237.

Gabriel Sawma is a lawyer with Middle East Background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic and Hindu Divorce in U.S. courts; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com
http://www.gabrielsawma.blogspot.com

Islamic Syrian Divorce in USA

 By Prof. Gabriel Sawma

 

Background

Syria is an independent state in the Middle East. It borders Lebanon and Israel to the west, Turkey to the north, Jordan to the south and Iraq to the east. In ancient history, Syria was occupied by Canaanites, Phoenicians, Hebrews, Aramaeans, Assyrians, Babylonians, Persians, Greeks,  Nabataeans, Palmerenes, Romans, Byzantines, Arabs, Crusaders, Mongols, Mamluks, and the Ottomans.  From early times in its history, Syriac, a dialect of Aramaic, was the national language of the country. It developed after the Aramaeans invaded Syria during the upheavals of the 13th century BC. Aramaic was spoken and written language of the inhabitants of modern-day Turkey, Syria, Lebanon, Transjordan, Iraq, Palestine, parts of Egypt and the western parts of Iran. Aramaic was also the language of the Arab tribes who lived in Syria under the Romans and Byzantine Empires before the Islamic conquest in 636 AD. Epigraphic materials from the Nabataean and Palmerene kingdoms show that these two major Arab kingdoms had their inscriptions written in Aramaic and Greek; none was written in Arabic since modern Arabic script was not developed yet. Most of the modern day villages and cities throughout Syria and the Middle East still preserve their names in Aramaic.  Aramaic was displaced by Arabic in the following centuries that followed the Islamic conquest of Syria and the region. Damascus, capital of modern-day Syria, was the seat of the Umayyad Dynasty in early Islam.

In 1517, Syria fell to the Ottoman Turks and formed a major territory of the Ottoman Empire. While under the Ottomans, Syria was occupied briefly by the ruler of Egypt, Ibrahim Pasha from 1832 to 1840. After World War One, the Ottoman Empire was dismembered and Syria came under the Mandate system which was established by the League of Nations cialis paypal. In accordance with the Sykes-Picot Agreement signed during the War between France and Great Britain, France held control over modern Syria, Lebanon, Alexandretta and other portions of southern Turkey.  In 1939 Turkey recaptured Alexandretta.

In January 1, 1944, Syria was recognized as an independent republic; the following year, the Syrian government announced the formation of a national army. In March of that year, Syria became a member of the United Nations, and in April, it signed the pact of the League of Arab States (Arab League). In view of the recent turmoil and lack of progress in reforms promised by President Bashar al-Assad, Syria’s membership in the Arab League has been temporarily suspended as of November 12, 2011.

 

Islamic Law of Marriage and Divorce in Syria

In 1917, the rulers of the Ottoman Empire passed the “Ottoman Law of Family Rights” (OLFR); the law represented the first state-sponsored codification of the personal status law as part of Islamic sharia. OLFR of 1917 remains in effect as the Muslim personal status law of Lebanon, and Israel to this day, and was recognized as the official law of Syria until 1953 and in Jordan until 1951.

Thus, the Islamic law of Syria was integrated in the Ottoman legal system. In 1926, Law No. 261 was introduced to render to Sharia courts the powers related to personal status, succession and waqf (real estate property and institutions belonging to Muslim religious community.) In contrast to Lebanon, Islamic sharia courts in Syria were regarded as ordinary judicial authorities in matters of personal status of non-Muslims, except for matters left to the jurisdiction of the communal courts. Matters of guardianship, succession, wills, legal majority (rushd), and maintenance of relatives within the family, waqf-khayri (real estate property and institutions belonging to non-Muslim communities) are controlled by the sharia courts.  The sharia courts consist of a single qadi (judge), whose rulings may be appealed to the sharia department of the Court of Cassassion (mahkamat al Tamyeez). The law of 1926 established religious courts for non-Muslims with jurisdiction limited to matters not within the competence of the sharia courts; mainly in cases involving betrothal, marriage, divorce, matrimonial and children  maintenance.

In 1953, the Syrian Law of Personal Status replaced the Ottoman Family Law of 1917. This law is based on the Hanafi School of jurisprudence and on other legislations adhered to by other Sunni doctrines. Islamic marriage contracts have to be signed by the couple in addition to a judge, and then registered with the state authorities. In Islamic marriage contract the value of the mahr has to be stated. The husband has duty to support his wife and provide her with a residence. The property of the husband and the property of the wife are not merged through marriage. In compliance with Islamic sharia, the law of Syria allows polygamy, although amendments in 1975 were passed to restrict the absolute right for a man to take a second, third, or a fourth wife.

In compliance with Islamic sharia, the Syrian code grants husband the right to divorce his wife, without a specific cause (Arabic, talaq). Thus, a man can divorce his wife any time, in any place, without any reason. The marriage can be terminated by the husband by announcing, three times “I divorce you”, or “I divorce my wife”, or “you are divorced”, or “my wife is divorce”, or by any statement that indicates his intention to divorce his wife. Also, according to Islamic sharia, the law of Personal Status of Syria, a man has the right to remarry his divorced wife, but only if she remarries and divorce another man.

The Syrian code does not allow women to initiate divorce in the same manner husbands do; instead, women have recourse to a judicial divorce (khul’). Women may also seek dissolution of the marriage if the husband is impotent or insane, or if he has been absent for over a year, or if he refuses to offer maintenance to his wife. When Islamic divorce occurs, custody of children (hadanah) of the young child resides with the mother, during childhood. If the mother remarries, she loses this right. As to guardianship (wilayah) of the children, this right is reserved for the father alone, or in case of the father’s death, the paternal grandfather is entitled to the custody. If the grandfather is dead, a paternal uncle assumes guardianship.

Article 3 of the Constitution of Syria states that, Islamic jurisprudence is “a main source of legislation”. The constitution also states that “the president has to be Muslim. In 1961, Law No. 12 was introduced; it establishes twenty-five Muslim courts throughout Syria. Each court consists of a single qadi (judge), except for those in Damascus and Aleppo, which comprise of three judges each. Islamic sharia courts are state courts with jurisdiction over the Law of Personal Status.

 

Recognition and Enforcement of Syrian Islamic Divorce in USA

The problems associated with recognition of a foreign divorce obtained from Syria arise when a U.S. citizen travels to Syria and obtain a quick divorce “triple talaq”. Such a divorce is generally entitled to recognition in the United States if it was valid and effective in Syria where it was granted and that Syria was the residence or domicile of both parties. U.S. courts will determine if the divorce was obtained by mail, by fraud or by any means that may violate State’s public policy requirements. Recognition of a divorce obtained in Syria may require that the person has his or her domicile in Syria, or whether both parties appeared in the divorce action, even in the absence of domicile. All of these factors are taken into consideration before the divorce obtained in Syria is recognized and enforced in the United States. Individuals facing these issues should consult with a competent attorney and/or consultant before they initiate any legal action.

It is important to note that a civil divorce obtained in the United States for couples belonging to Muslim faith, is not recognized by Islamic tribunals in the Middle East or any other country whose personal status laws are based on Islamic sharia. Islamic sharia does not recognize a divorce obtained outside its rules. Muslim individuals, mainly women, who obtain civil divorces in the United States, and would like to remarry within the Islamic faith, must obtain an Islamic divorce too, a civil divorce alone in not enough.  Muslim women who obtain a civil divorce alone in the United States and then remarry without obtaining an Islamic divorce may face prosecution in the Middle East for adultery. They may even face stoning in some countries. Furthermore custody of their children born of Islamic marriage will be taken away and granted to the father or to his paternal family members. Again, Muslim women who obtain civil divorce only in the United States should consultant a competent attorney and/or consultant before they travel to a country whose family law is based on Islamic sharia.

 

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

 

Gabriel Sawma is a lawyer with Middle East Background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic and Hindu Divorce in U.S. courts; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com

Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237