Recognition and Enforcement of Mahr Agreements in New York

By

Prof. Gabriel Sawma

In 2012, a client called me seeking expert opinion on recognition of a divorce decree issued by the highest court in Abu Dhabi. The decree granted divorce, mahr, and child custody to the wife. The case can be summarized as follows:

The couple are US citizens of Egyptian background. They lived in New York until 2006, where their two children were born. They moved to Abu Dhabi, UAE, where the husband had gotten a job.

The marital relationship soured and the husband attacked his wife, inflicting “severe bruises and a fractured skull.” As a result, the husband was convicted of assault in Abu Dhabi, on the grounds that he had crosses his legal limits to discipline his wife according to the UAR court. The husband “never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The husband’s assault formed the grounds for the wife to seek divorce in Abu Dhabi. The court granted her the divorce, awarded her the mahr of $250,000, ordered the husband to pay child support and some amount of spousal support, and gave the wife custody of the children.

The court proceedings in Abu went through three tiers of judiciary: The Court of the First Instance, the Court of Appeal and the Court of Cassation, which is the highest court in the UAE.

Following the decision of the Court of Cassation, the husband returned to the United States without notifying the plaintiff, and brought with him the passports of the children without the knowledge of the wife. It took the wife several months to get temporary passports from the US Embassy to return to the United States.

Once in New York, the ex-wife initiated divorce proceedings at the Supreme Court of Westchester County seeking recognition and enforcement of the decree obtained from the UAE. This author submitted an affidavit to the Supreme Court on behalf of the wife and was cited by both the Supreme Court and the Appellate Division, Second Judicial Department. The court order is available at this link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

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

The Court Recognizes the Mahr Agreement in the Abdu Dhabi Judgment of Divorce

Mahr is the amount of money or goods that the groom pays his future wife in anticipation of marriage. It is part of the marriage contract; it can be paid at the marriage ceremony (prompt) or in the event of divorce, or death of the husband (deferred). Mahr is considered to be the wife’s sole property and may not be taken over by the husband, nor by her father or other relatives. In the case at hand, the husband promised to pay his wife, in the event of divorce, an amount of $250,00 as her mahr .

The Supreme Court of Westchester County recognized the divorce decree and all its contents, including the mahr agreement of $250,000. The court agreed that the mahr agreement was “executed as part of a religious ceremony two months after the parties’ civil marriage on July 19, 1998.” The court reasoned that: “In seeking recognition, entry, and enforcement of the Abu Dhabi judgment in the amount of $250,000 pursuant to the Mahr agreement, the plaintiff is not seeking any new relief against the defendant, but rather, she is asking this Court to perform the ministerial function of recognizing the foreign country’s judgment and converting it into a New York judgment… “New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts, ‘and in accordance with that tradition, the State adopted the Uniform Foreign Country Money-Judgments Recognition Act as CPLR article 53. . . . Article 53 applies to any foreign country judgment which is final, conclusive and enforceable where rendered’. . . and a foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money” . . .Unless a ground for non-recognition exists under CPLR section 5302, a foreign money judgment is to be recognized under the doctrine of comity. “[T]he inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York’s concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law. If the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under will-settled comity principles without microscopic analysis of the underlying proceeding” . . . Moreover, it is not required that the “foreign tribunal’s procedures exactly match those of New York. Rather, [CPLR sec. 5304 (a)(1) is satisfied if the foreign court’s procedures are compatible with the requirements of due process of law” . . .

The Mahr Agreement Can Be Enforced in Civil Courts Pursuant to Neutral Principles of Law

As long as enforcement does not violate either the law or the public policy of the state, an agreement predicated upon religious and customs is enforceable in a civil court. The Supreme Courts stated that: “The First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,” a State may adopt any approach to settling these disputes, “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith” (Jones v. Wolf, 443 US 595, 602 [1979]; Avitzure v. Avitzur, 58 NY2d at 114). Use of the “neutral principles of law” approach, which “contemplates the application of objective, well-established principles of secular law to the dispute,” has been found to be “consistent with constitutional limitations.” This approach permits “judicial involvement to the extent that it can be accomplished in purely secular terms.”

In its final analysis, the court agreed with our argument that a “mahr agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a free exercise’ of religious beliefs, no matter how diverse they may be.” A mahr agreement will survive constitutional challenges and can be enforceable as a contractual obligation.

The Appellate Division, Second Judicial Department Affirms

On January 20, 2016, the Appellate Division, Second Department affirmed the decision of the trial court. In its opinion, the Appellate Court stated: “Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law Sec. 236(B) (3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby (see Greschler v Greschler, 51 NY2d 368; Rabbani v Rabbani, 178 AD2d 637). Accordingly, the court properly granted that branch of the plaintiff’s motion which as to enforce so much of the judgment of divorce as awarded the plaintiff the sum of $250,000 pursuant to the mahr agreement.” (See the Affirmation Order of the Appellate Division at this link: http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2012-11549.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, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

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

Professor at Fairleigh Dickinson University

 

Taught the following courses:

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

Lecturer on Islamic Finance at the University of Liverpool:

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

  • Arabic 101

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

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

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

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

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

http://www.islamicdivorceinusa.com

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

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

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

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

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

http://www.gabrielsawma.blogspot.com

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

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

The Appellate Division Affirms

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

 

Won A Landmark Case Involving Custody of Children

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

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

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

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

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

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

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

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

 LANGUAGES

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

 

 BAR ASSOCIATIONS

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

 CONTACT INFORMATION:

 Gabriel M. Sawma

Tel. (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

http://www.islamicdivorceinamerica.com

http://www.gabrielsawma.blogspot.com

 

 

[1] These articles are published and can be accessed on the following websites: http://www.islamicdivorceinusa.com

And, http://islamicdivorceinamerica.com

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

 

Abduction of American Children to Iran

By

Professor Gabriel Sawma

The United States severed diplomatic and consular relations with the Government of Iran on April 7, 1980 as a result of the events surrounding the seizure of our Embassy in Tehran, Iran on November 4, 1979. In April of 1980, the United States Government formally asked the Swiss Government if it would assume diplomatic and consular representation of the United States in Iran. The Swiss agreed to perform specific consular and administrative functions o behalf of the U.S. Government.

One of the major problems facing the U.S. is parental kidnapping of American children to Iran. Iran is not signatory to The Hague Convention on Child Abduction, and the Iranian government has placed strict limits on the ability of Swiss diplomats to intervene in cases involving parental kidnaping of American children to Iran. The Iranian government placed restrictions because they do not recognize the concept of dual nationality and therefore, when one parent is an Iranian citizen, consider the children involved to be Iranian citizens only. Consequently, removing kidnaped children from Iran would be considered kidnapping under Iranian law.

Fear of Potential Abduction

In many instances, the wife fears that the Iranian husband may kidnap the children to Iran without her knowledge. One of the first steps is to notify the Department of State’s Office of Legal Assistance and Citizenship Appeals at (202) 326-6178. The Office can block the issuance of a U.S. passport in the child’s name upon submission of a court order giving the wife sole custody or prohibiting the child’s departure from the U.S. without permission of the court. That office can also tell whether the spouse has already applied for and obtained a passport for the child. However, if a passport has already been issued for the child, that office cannot revoke the passport or prevent its use. For more information, see this ink: http://www.passportsusa.com/family/abduction/country/country_498.html (accessed June 3, 2016).

Iran Does Not Recognize Dual Citizenship

A child born of an Iranian father is considered Iranian citizen according to Iranian law, and could travel abroad with Iranian passport without the consent of the mother. The U.S. State Department can do nothing to prevent the issuance of an Iranian passport by the Iranian Interests Section of the Embassy of Pakistan. The address and telephone number of the Iranian Interest Section of the Embassy of Pakistan, Tel. (202) 965-4990. See this link: http://www.daftar.org/Eng/default.asp?lang=eng  (accessed June 3, 2016).

American Women Marrying Iranian Men Need Permission to Leave Iran

American women who marry Iranian nationals, gain Iranian nationality. The woman’s U.S. passport will be confiscated by the Iranian authorities. American women may not leave the country without permission from their husbands. The U.S. Interests Section at the Swiss Embassy in Tehran can provide only very little assistance if an American married to an Iranian man face marital difficulties and/or encounters difficulty in leaving Iran.

Iran Does Not Recognize U.S. Custody Orders

Custody orders issued by U.S. courts are not recognized or enforced by the government of Iran. When a child is abducted to Iran, it becomes near impossible to bring him or her back to the United States without the full support and consent of the father. All cases involving marriage, divorce, and custody of children in Iran are governed under the jurisdiction of religious courts, which do not grant custody of children to a parent who lives outside of Iran and who will not raise them within the Islamic faith.

Article 1169 of the Civil Code of Iran states that the mother has custody of a male child until he reaches the age of two, after which, custody goes to the father. As to girls, the mother retains custody of her daughter until she reaches the age of seven, after which the custody goes to the father. If the mother becomes insane or remarries another man during the time that she has custody to the children, the custody will go to the father. If the court determines that the father is unfit to raise the children, their custody may be granted to the paternal grandfather or to the mother, if the mother has not renounced her Iranian citizenship and is resident of Iran. If the court grants custody to the mother, she will need permission from the paternal grandfather or from the court to obtain exit visas for the children, under the age of eighteen, to leave the country.

The Supremacy of Islamic Law in Iran

The form of government of Iran is that of an Islamic republic, based on the “Qur’anic justice.” (Article 1 of the Iranian Constitution). The supremacy of Islamic law in Iran is confirmed in various provisions of the 1979 constitution. Article 4 states: “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulation must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the constitution as well as to all other laws and regulations, and fuqaha’ of the Guardian Council are judges in this matter.”

This means that the family law of Iran is based strictly on Islamic Shari’a for the Muslim community in that country. It also means that Islamic Shari’a is superior to any foreign or international law, including international human rights treaties.

Article 21 of the Iranian constitution states: “The government must ensure the right of women in all respect in conformity with Islamic criteria [mawazin-e-eslami]”. This makes Islamic Shari’a superior to the freedom of women that are guaranteed by international treaties.

Under Islamic Shari’a, girls could be married off against their will by male marriage guardians. Women are required to be monogamous, whereas men are allowed to have up to four wives at a time. Wives owed obedience to their husbands, who were entitled to keep them at home and to beat them and to withhold maintenance for disobedience. Husbands could terminate marriages at their discretion simply by stating a divorce formula such as “I divorce you”, or “I divorce my wife”, or “my wife is divorced”, whereas wives needed to overcome difficult hurdle to obtain a divorce over their husband’s objections. Men have superiority over women in the area of guardianship, in which they enjoy great power as guardians over minors.

The government of Iran encourage early marriages for girls by lowering the minimum age for marriage from eighteen to nine. According to the Islamic Republic Civil Code, the legal age of marriage in Iran is thirteen years for girls and fifteen for boys. However, the Iranian parliament’s legal affairs committee made several statements arguing that the Islamic Republic is attempting to lower the girl marriage age to nine with a permission from the judge. So, even though the above-mentioned marriage is illegal based on Iran’s civil code, the religious authorities allowed it.

In the area of succession, women got one-half the share of males who inherited in a similar capacity.

Iran Did Not Ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

CEDAW, or Treaty for the Rights of women, was adopted by the United Nations in 1979, and is the most comprehensive international agreement on the basic human rights of women. The treaty provides an international standard for protecting and promoting women’s human rights and is often referred to as a “Bill of Rights” for women. It is the only international instrument that comprehensively addresses women’s rights within political, civil, cultural, economic, and social life.

Article 5 of CEDAW requires modifying social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of the sexes or stereotyped roles for men and women.

As of December 2014, 188 countries ratified CEDAW. So far Iran is not a signatory to the CEDAW due to a resistance from the Guardian Council. In 2003 the Iranian parliament ratified the treaty, but then it was vetoed by the Guardian Council.

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

The CRC is aimed at fostering improvement in the situation of children and protecting their interests. Upon signing the CRC, Iran had indicated that it would reserve to CRC articles and provisions “which may be contrary to the Islamic Shariah,” preserving the right to make such particular declaration upon ratification. Upon ratification on July 13, 1994, Iran entered a reservation saying:

“The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.”

By entering reservations in this manner to CRC, Iran is left free to decide that any or all articles of the CRC should not be applied. The addition of an indication that Iran was reserving to the CRC in cases where it was incompatible with “the international legislation in effect” meant that Iran does not abide by international law but rather the Islamic documents that were put forward by the Organization of Islamic Conference and endorsed by Iran, such as the Cairo Declaration on Human Rights, which in essence subordinates international human rights to Islamic Shari’a.

 

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

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

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

Professor at Fairleigh Dickinson University

 

Taught the following courses:

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

Lecturer on Islamic Finance at the University of Liverpool:

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

  • Arabic 101

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

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

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

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

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

http://www.islamicdivorceinusa.com

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

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

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

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

 Lectured at the Academy of Matrimonial Lawyers in New York.

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

http://www.gabrielsawma.blogspot.com

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

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

The Appellate Division Affirms

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

 

Won A Landmark Case Involving Custody of Children

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

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

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

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

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

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

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

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

 LANGUAGES

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

 BAR ASSOCIATIONS

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

 CONTACT INFORMATION:

 Gabriel M. Sawma

Tel. (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com 

http://www.gabrielsawma.blogspot.com

 

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

 

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

 

Abduction of American Children to Jordan

By

Prof. Gabriel Sawma

 

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

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

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

 

Introduction

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

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

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

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

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

 

The Shari’a Courts and Application of Islamic law

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

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

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

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

 

Custody of Children in Jordan

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

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

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

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

 

Jordan Does Not Recognize U.S. Custody Orders

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

Professor at Fairleigh Dickinson University

 

Taught the following courses:

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

Lecturer on Islamic Finance at the University of Liverpool:

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

  • Arabic 101

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

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

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

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

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

http://www.islamicdivorceinusa.com

Lectured at the Academy of Matrimonial Lawyers in New York 

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

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

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

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

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

http://www.gabrielsawma.blogspot.com

 

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

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

The Appellate Division Affirms

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

 

Won A Landmark Case Involving Custody of Children

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

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

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

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

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

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

 

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

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

 LANGUAGES

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

 BAR ASSOCIATIONS

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

 CONTACT INFORMATION:

 Gabriel M. Sawma

Tel. (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

http://www.gabrielsawma.blogspot.com

 

 

 

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

 

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