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:
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:
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