CUSTODY OF CHILDREN IN KUWAITI LAW

 

By

Professor Gabriel Sawma

 

GEOGRAPHY AND HISTORY

Kuwait is located on the northeastern part of the Arabian Peninsula, known as Arabia, and on the northwestern head of the Persian Gulf. The country is rich, and is estimated to have the fifth largest petroleum reserves in the world. The country became independent on June 19, 1961 and is ruled by the Sabah family, who has been ruling this country for two hundred years.

On August 2, 1990, Iraq, led by Saddam Hussein, invaded and annexed Kuwait. This led the United States, under President George H. W. Bush, who created a coalition of other nations to launch Operation Desert Storm to liberate Kuwait. The war lasted until February 28, 1991, and resulted in a convincing victory for the U.S and its coalition.

Kuwait is a constitutional hereditary monarchy with its cabinet (Council of Ministers) appointed by the Emir, and a National Assembly that is elected every five years. The Parliament serves as a legislative body with the power to overturn the decrees issued by the Emir, who is head of state. The constitution of Kuwait was adopted in 1962, and the parliament is elected every four years.

Islam is Kuwait’s religion. Roughly 70% of the state’s inhabitants are Sunni, while 30% are Shi’as. More than fifty percent of the residents of Kuwait are foreigners, who are able to establish their own schools and practice their religious faiths.

On May 16, 1999, the emir of Kuwait, Shaikh Jabir al-Sabah, issued a decree to grant Kuwait women the right to vote and to run for office “in recognition of their vital roles in building Kuwaiti society and in return for the great sacrifices they had made during various challenges the country faced.”

In 1994, Kuwait signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Upon ratification, it incorporated reservations on a number of provisions, including one giving equal rights to men and women with respect to guardianship and adoption of children, saying that they conflicted with Islamic law. Kuwait’s personal status law, as we shall see below, is theoretically based on Islamic Shari’a Law.

 

PERSONAL STATUS LAW OF KUWAIT (PSL)

Article 2 of the Constitution of Kuwait states that the religion of the State is Islam, and that the Islamic Shari’a shall be a main source of legislation. The personal status law of Kuwait, number 51, 1984, is based on Islamic Shari’a, in accordance with the Maliki school of jurisprudence. The PSL legitimizes male protection and control over women. In Kuwait, a man may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah.

Article 74 of this law requires the husband to support his wife. In return for her right to nafaqa (maintenance), the wife must obey her husband and rear the children. Article 88 of PSL, however, does not give the husband an absolute right to ta’a (obedience). If a wife feels that she can no longer live with her husband and her his house, a judge cannot force her to obey her husband’s demand that she returns. Under such circumstances, the wife will lose her right to maintenance and the court will support that.

Article 102 of the PSL stipulates that a husband may divorce his wife without her consent and is only responsible for her maintenance during the three-month period of iddah during which a woman is secluded in order to determine whether she is pregnant to ensure that the husband is the only father of the child. The husband, however, is required to provide her with an allowance for any children in her custody. In addition, under Article 165, if a woman is divorced without her consent, her former husband is required to pay her maintenance for one year as a compensation. This is known as nafaqat al-mut’ah.

 

CUSTODY OF THE CHILDREN (HADANAH)

The Personal Status of Kuwait designates fathers as the legal guardians of their children. According to Article 194, mothers may have physical custody of the children, and in the event of divorce they retain custody of male children until maturity, which is 15 years of age, and female children until they marry, but the authority over their children is significantly less than their ex-husband’s. However, the mother loses custody if she remarries.

Religious doctrines and local tradition requires that parental control over the children is left unchallenged. This means that the government does not interfere in this area.  Rather, parental authority is limitless, almost absolute. A husband may forbid his wife or daughter to work outside the home. There are no constitutional guarantees for women to employment.

Article 190 of the PSL list the qualifications of the person who has custody of the children, they include: maturity, reasonable, faithfulness, and ability to take care of the child, and keep the child healthy and good manners. Additionally, Article 191 also requires that the mother who has custody of a female child, that she would lose her custody right if she remarries a man being a relative of the child in a prohibited degree. i.e., a relative who is prohibited from marrying the female child, “if the marriage is consummated.” Article 191(b) also indicates that if the next in line for custody keeps silent for a year, without good excuse, after knowing of the consummation of a disqualifying marriage, then they lose the right to claim that custody, adding that they cannot claim ignorance of this provision as an excuse.

As to acquiring citizenship in Kuwait, Art. 2 of the Kuwaiti Nationality Law states that “Any person born in, or outside Kuwait, whose father is a Kuwaiti national shall be a Kuwaiti national himself.” The nationality of the father is therefore, the determining factor for granting a Kuwaiti citizenship to the children. In addition, Article 8 of the Kuwaiti nationality law allows the foreign wife of a Kuwaiti citizen to acquire the Kuwaiti nationality after completing 15 year of marriage.

 

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

 

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on our field of expertise, please visit our website at this link:

http://www.gabrielsawma.blogspot.com

RECOGNTITION OF ABU DHABI CUSTODY ORDER IN NEW YORK

By

Professor Gabriel Sawma

Case Study: S.B. v. W.A.

In 2012, I was asked to write an opinion to the Supreme Court of Westchester County in New York on behalf of S.B. who obtained a divorce decree from Abu Dhabi, UAE. The divorce decree granted the wife custody of the children and ordered the husband to pay his wife, a mahr of $250,000.00 and legal fees. (S.B. v. W.

The New York’s Supreme Court of Westchester County took a judicial notice of the constitution and laws of the United Arab Emirates (UAE) for purposes of determining whether entry of judgment of divorce and order of child custody entered in Abu Dhabi would be recognized and registered in the state of New York. (See procedural and background of the case S.B. v. W.A. at: http://caselaw.findlaw.com/ny-supreme-court/1616620.html

 

Background

Both S.B. and W.A. were married on May, 1998 in a civil ceremony in the City, County, and State of New York. Following that, the parties married in an Islamic ceremony in compliance with Islamic law, also in the State of New York. They both signed a marriage contract, in which the husband promised to pay his future wife an advance mahr of $5,000.00 and, in the event of divorce, or death of the husband, a deferred mahr of $250,000.00. Two children were born of the marriage, a girl, born on July 12, 2001, and a boy, born on August 3, 2004. Both children were born in the United States.

In 2006, the defendant (husband) received an employment in the emirate of Abu Dhabi (UAE), and decided to move there. The plaintiff (wife) and children remained in the U.S. until August 2007, when they joined the plaintiff in Abu Dhabi.

 

Domestic Violence in Abu Dhabi

While in Abu Dhabi, the plaintiff initiated criminal proceedings against the defendant following an incident of domestic violence that occurred on January 28, 2009. After that, the marital relation soured and the wife obtained a divorce judgment from the Court of First Instance in Abu Dhabi, along with an order awarding her custody of the children and other financial relief. The divorce and custody order was affirmed on appeal to the Court of Appeal and to the Court of Cassation, which is the highest court in Abu Dhabi.

 

The Plaintiff Seeks Recognition of the Divorce Judgment Obtained from Abu Dhabi

In support of her motion, plaintiff submitted certified copies of the Abu Dhabi orders, judgments, and decrees, which were translated from Arabic to English by a legal translator duly licensed by the Ministry of Justice in the UAE, who attested to the correctness of the translation.

She also submitted an affidavit from this author, as expert consultant on Islamic divorce in the United States and Middle East laws, including the legal structure of the courts of the UAE.

In my affidavit, I explained the structure of the judiciary in the UAE, the legal proceedings between the parties, and the judgments and decrees rendered by the Abu Dhabi courts.

Plaintiff also submitted an affidavit from an attorney admitted to practice law in Abu Dhabi, who represented the plaintiff in connection with post-matrimonial issues. In his affidavit, he explains the legal proceedings in Abu Dhabi.

 

Divorce Proceedings in Abu Dhabi

On July 1, 2009, the plaintiff filed a petition for divorce in the Court of First Instance under Article 117 of the Personal Status Law of the UAE. Hearings on the divorce were held on October 13, November 8, and December 14, 2009. Both parties participated in the proceedings, and both were represented by counsel.

On December 27, 2009, in the presence of both parties, the Court of First Instance issued a judgment on the merits, granting the plaintiff a divorce from the defendant; directing the defendant to pay the plaintiff the deferred mahr of $250,000.00; directing the defendant to pay alimony for the children, including food, clothing and transportation allowances; directing the defendant to pay monthly alimony to the plaintiff. The Abu Dhabi Court also awarded the plaintiff custody of the children, and directed the defendant to pay all relevant fees and expenses.

The decision of the Court of First Instance was appealed to the Court of Appeal, which rendered a decision on April 4, 2010, and the Court of Cassation, which rendered decision on November 8, 2010. Both courts affirmed the judgment with minor modification related to the iddah Alimony.

 

Jurisdiction of the Abu Dhabi Courts

The defendant claimed that the parties are deemed married under the laws of New York, as the Abu Dhabi courts entered a divorce judgment based on the religious marriage, applying the laws of the Islamic Sharia, and no divorce action has been filed based upon the civil marriage. He claimed that the Abu Dhabi divorce was a religious judgment of divorce, not a civil judgment of divorce, and therefore, the New York courts should not afford it comity.

The question before the New York’s Westchester Supreme Court (Judge Francesca E. Connolly) was whether the Court of Abu Dhabi had jurisdiction over the case. The Supreme Court held that:

“Both parties were residing in Abu Dhabi when the plaintiff instituted the divorce proceedings. The divorce decree was obtained after a trial and tow appeals, including an appeal to the highest court in Abu Dhabi, the Court of Cassation, that rendered a final and binding judgment of divorce. Both parties were represented by counsel, participated in the divorce proceedings and had a full opportunity to contest jurisdiction and all other issues. There is no question that the foreign court had jurisdiction over the parties at the time the divorce judgment was issued and that it was a final binding order, thereby precluding the defendant from now collaterally attacking its validity or relitigating any of its provisions (See Borenstein v. Borenstein, 151 Misc. 160, 270 N.Y.S. 688 [Sup. Vt. N.Y. Co, 1934]; Greschler v. Greschler, 51 N.Y.2d at 376, 434 N.Y.S.2d 194, 414 N.E.2d 694).

“A court has the inherent power pursuant to the principles of comity to recognize and enforce a foreign judgment of divorce “unless there is some defect of jurisdiction shown to be against the public policy of the domestic state” (48A N.Y. Jur. 2d, Domestic Relations at 2809). “[A] party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding …. Only where there has been a showing that the foreign judgment was fraudulently obtained … or that recognition of the judgment would conflict seriously with a compelling public policy … cab a collateral attack be entertained” (Robinson v. Robinson, 120 A.D.2d 45, 415-16, 501 N.Y.S.2d 874 [1st Dept, 1986]). “Absent some showing of fraud in the procurement of the foreign country judgment … or that recognition of the judgment would do violence to some strong public policy of this State … a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State) (Greschler v. Greshcler, 51 N.Y.2d at 376, 434 N.Y.S.2d 694).

 

The New York’s Supreme Court of Westchester County recognized the Divorce Judgment

The Court in New York recognized the divorce judgment obtained from Abu Dhabi pursuant to the doctrine of comity:

“The general principle of law 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” (kraham v. Kraha, 73 Misc.2d 977, 342 N.Y.S.2d 943 [Sup. Ct. Nassau Co. 1973]). “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 ful faith and credit given by the courts to judgments of our sister States” (Greschler v. Greschler, 54 N.Y.2d 368, 376, 434 N.Y.S2d 194, 414 NE.2d 694 [1980]). “Loosley, [comity] means courtesy, respect, or mutual accommodation; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which it won’t” (Siegel, N.Y. Prac. 472 [5th edi.])

 

New York’s Supreme Court of Westchester County Recognized the Custody Order of Abu Dhabi

The Supreme Court of Westchester County recognized, not only the Abu Dhabi divorce judgment, the Court also recognized all the contents of such a decree, including the custody of the children. The Supreme Court held:

“Since New York recognizes bilateral divorce decrees from foreign countries, recognition will be given to all the contents of such a decree, including a separation agreement incorporate and approved therein…”

The Court held that

“The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and internationally and is designed to promote uniformity throughout the world in custody determinations (See Sobie, Practice Commentaries, [McKinney’s Cons. Laws of N.Y., Book 14]). The UCCJEA is mandatory and provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced,” except where “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights” (Domestic Relations Law 75-d[2] and [3]).

The Court held that the UCCJEA “is not a reciprocal act”. There is no requirement that “the foreign country enact a UCCJEA equivalent” (See Sobie, Practice Commentaries [McKinney’s Const. Laws of N.Y., Book 14].) The statute “is designed to eliminate jurisdictional competition between courts in matters of child custody, with jurisdictional priority conferred to a child’s home state.” (Hector G. v. Josefina P., 2 Misc. 3d 801, 809, 771 N.Y.S.2d 316 [Sup. Ct. Bronx Co. 2003]).

The Court held that:

“The decision from the Court of First Instance noted that the mother usually has the right to custody of the children unless proven otherwise. The defendant made no showing to refute the custody award to the plaintiff. This award of custody to the plaintiff was affirmed following two appeals, including an appeal to the highest court in Abu Dhabi. The defendant thereafter petitioned the Abu Dhabi court to change custody from the plaintiff to the defendant based upon the fact that he had moved to the United States. Defendant’s application was denied by the Court of First Instance and affirmed on appeal.”

The Court concluded that neither party alleged that any of the child custody laws of the UAE violate fundamental principles of human right or that the Abu Dhabi courts were without jurisdiction to determine custody. “Nor does the New York’s Supreme Court of Westchester County found any such violation or lack of jurisdiction:

“Therefore, based upon the principles of comity and pursuant to Domestic Relations Law 75-d, this Court must recognize and enforce the custody determination of the Abu Dhabi courts awarding plaintiff custody.”

 

The Appellate Division Affirms

On January 20, 2016, the Appellate Division affirmed the judgment of the lower Court. It held:

“”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” (Greschler v Greschler, 51 NY2d 368, 376; see Kuznetsov v Kuznetsova, 127 AD3d 1031). Comity should be [*2]extended to uphold the validity of a foreign divorce decree absent a showing of fraud in its procurement or that recognition of the judgment would do violence to a strong public policy of New York (see Matter of Gotlib v Ratsutsky, 83 NY2d 696, 699-700; Greschler v Greschler, 51 NY2d at 376; Farag v Farag, 4 AD3d 502, 504; Azim v Saidazimova, 280 AD2d 566, 567). Moreover, in extending comity to uphold the validity of a foreign divorce decree, New York courts will generally recognize all the provisions of such decrees, including any agreement which may have been incorporated therein, unless modification is required by reason of some compelling public policy (see Greschler v Greschler, 51 NY2d at 376-377; Rabbani v Rabbani, 178 AD2d 637, 638).”

“Moreover, the Supreme Court providently determined that the plaintiff was entitled to an award of an attorney’s fee and expenses incurred in connection with the issues of custody, child support, maintenance, and distribution of property (see Domestic Relations Law § 237[a], [b]).”

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

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

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

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

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

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

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

Interviewed by:

BBC: 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

 

Author of the book titled “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an”.

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

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

http://www.gabrielsawma.blogspot.com

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

 

ABDUCTION OF AMERICAN CHILDREN TO SAUDI ARABIA

By

Prof. Gabriel Sawma

 

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

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

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

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

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

 

Introduction

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Saudi Arabia Does Not Have Equal Protection of the Law

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

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

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

 

Saudi Arabia Does Not Recognize U.S. Custody Orders

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

 

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

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

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

 

Saudi Arabia Violates Treaty on Human Rights for The Child

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

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

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

 

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

 

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

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

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

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

By

Professor Gabriel Sawma

 

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

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

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

Summary of the Case

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

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

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

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

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

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

Recognition of Divorce Judgment Pursuant to the Doctrine of Comity

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Appellate Division Affirms the Judgment of the Supreme Court

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

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

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

 

 

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

 

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

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

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

American Women Marrying Saudi Men

By

Professor Gabriel Sawma

 

Students of Saudi Nationality come to the United States for study. Many of them marry American women with no experience in Saudi Arabia’s family law, and have no idea what they are getting into in marrying someone of a different culture. Quite often, the Saudi students convince these women to convert to Islam, and then have American Muslim children who must follow Islam. Some of the marriages are very strong and good, but the majority of them are not, and they fall apart under the impact of extreme and difficult shock of social and religious life of Saudi Arabia.

When the marriage breaks up, American women naturally want to take their children with them and leave Saudi Arabia, but they find out that they cannot get an exit visa without permission of the husband, even though they and their children are U.S. citizens. This author has worked in Saudi Arabia and other Middle East countries, and handled many cases involving custody of children in the region.

The Religious Effect

Islamic religion dominates all aspects of life in Saudi Arabia. This includes government policy, cultural norms, and social behavior. Islam is the only official religion of that country, and public observance of any other religion is forbidden throughout the kingdom.

Women are prohibited from driving cars or riding bicycles on public roads, or in places where they might be observed. Women and men are not free to congregate together in most public places, and a man may be arrested for being seen with, walking with, or traveling with, or driving a woman other than his wife or sister, or mother, or daughter. Also are forbidden of playing music, or dancing in public, mixed swimming, public showing of movies, and consumption of alcohol.

Religious police, known as mutawwa, are empowered to enforce the strict conservative interpretation of Islamic codes of dress and behavior of women, and in many cases, they harass women who do not cover their heads or whose clothing is insufficiently concealing.

Saudi Arabia Does Not Recognize Dual Citizenship

Children of American women born of marriages with Saudi men lose their U.S citizenship while in Saudi Arabia. This is due to the fact that Saudi Arabia will not recognize dual citizenship. Saudi government considers the offspring to be solely Saudi citizens because they were born to a Saudi father. While in Saudi Arabia, Children born of Saudi men and American women will be considered Saudi citizens only.

An Exit Visa is Required to Depart Saudi Arabia

A U.S. citizen married to Saudi man should be aware of the fact that she must have permission from her husband to depart Saudi Arabia with the children. This is true even if the woman and her children are U.S. citizens and even if the husband is not a Saudi Citizen. The U.S. Embassy can intercede with the Saudi government to request exit visas for adult U.S. women, but there is no guarantee that visas will be issued. Obtaining an exit visa without the consent of the male guardian, takes many months, if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the departure of minor children without permission from the father.

American Women Who Marry Saudi Men May Lose Their Children After They Return to Saudi Arabia

Saudi Arabia is not a 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 United States and Saudi Arabia dealing with international parental child abduction.

American women who travel to Saudi Arabia are subject to the jurisdiction of Saudi courts, as well as to Saudi laws and regulations. This hold true for all matters including custody. Parents planning to travel with their children to Saudi Arabia should bear in mind that the U.S. government cannot help an American woman whose children have been abducted by their father.

Saudi Arabia Does Not Recognize U.S. Court Custody Orders

American women marrying Saudi men should keep in mind that, in Saudi Arabia, custody decisions are based on Islamic law, and that Saudi Arabia is not party with the U.S. to any extradition, judicial assistance or child abduction treaties. Additionally, Saudi law does not recognize U.S. court orders, including child custody and divorce decrees, which are consequently unenforceable in Saudi Arabia. An American mother, whose husband has abducted the children to Saudi Arabia may not be granted an entry visa to the kingdom to see her children.

A child born anywhere in the world to a Saudi father is generally held to be a Saudi citizen, Muslim, and eligible for a Saudi passport. In many cases, the Saudi Embassy will grant passport to children born in the United States of an American wife and a Saudi husband.

American Woman May Find Her Husband is Married to Other Women at the Same Time

Like any other Muslim majority country, Saudi Arabia allows a Muslim husband to have up to four wives at one time as long as he can support them and treats each equally, while a woman may have one husband at a time.

Under Islamic law, a Muslim man is allowed to marry a Christian or Jew without having to change her religion. But a Muslim woman cannot marry non-Muslim man unless he converts to Islam.

Non-Muslim Women Marrying Muslim Men Cannot Inherit

Under Islamic law, which is the law in Saudi Arabia, a non-Muslim woman is not allowed to inherit from her husband. Daughters receive only half the amount of inheritance awarded to their brothers.

Testimony of Women in Courts is Equal Half of that of Men

Under the Islamic law of Saudi Arabia, the testimony of a woman does not carry the same weight as that of a man. The testimony of one man equals that of two women.

 

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

 

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

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

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

The Druze Divorce in USA

By

Prof. Gabriel Sawma

 

Introduction to the Druze Community in USA

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

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

 

Development of the the Druze Personal Status Law

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

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

 

The Current Personal Status Law of the Druze in Lebanon

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

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

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

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

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

 

Types of Divorce in the Druze Community

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

 

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

 

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

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

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

INTRODUCTION TO SHI’I FAMILY LAW OF IRAN BEFORE AND AFTER THE REVOLUTION – A COMPARATIVE STUDY

BY

PROFESSOR GABRIEL SAWMA

 

Prior to the advent of the Islamic Revolution of 1979 in Iran, family laws under the Pahlavi Dynasty (1925-79) witnessed major changes in that field, the Family protection Law of 1967 and its amendments in 1975 abolished extrajudicial divorce, instituted the wife’s right to divorce under certain conditions, limited polygamy by making it subject to judicial approval, and authorized the courts to rule on arrangements related to the maintenance of a divorced couple’s children.

In theory, the reforms under the Pahlavi rule were more advanced than the previous Iranian family laws. For example the reforms made it harder for a man to abandon his wife and prevented him from threatening her with the possibility of a sudden and rapid divorce and the loss of custody of her children. Although the new reforms embedded in the Family Protection Law remained partially based on the Shi’i Ja’fari School of law, for instance by accepting all the conditions that entitled either party to obtain a divorce, such as insanity and other disabling illnesses. These conditions were expanded and included in Article 11 an important change in the event a husband married a second wife without the consent of the first one, the latter could apply for divorce:

  • If either spouse received a prison sentence of five or more years.
  • A dangerous addiction on the part of either spouse which could, in the opinion of the court, be hazardous to the welfare of the family.
  • Marriage of the husband to another woman without the consent of his first wife.
  • When either partner abandoned the family life. This was subject to the court’s confirmation.
  • If a husband or wife has, on account of the commission of a crime repugnant to the position and dignity of the family of the other party, been, according to the final judgment of a court of law, found guilty. The question whether or not the crime is repugnant to the position and dignity of the other party shall be determined by the court after taking into consideration the position and circumstances of both the parties as well as the custom and other standards.

 

Article 14 of the Family Protection Law requires the husband to get permission from the judge in order to marry a second wife, it reads:

When a man, already having a wife, desires to marry another woman, he shall obtain permission from the court of law. The court shall give the permission only when it has taken the necessary steps, and, if possible, has made an inquiry from the present wife of the man, in order to assure the financial potentiality and ability of the man for doing justice [to both wives].

In case the man marries [another woman] without obtaining the due permission from the court, he shall be liable for the punishment provided in section 5 of the Marriage Act f 1310-16[iii] (1931-37 A.D.)

The significance of the Family Protection Law of 1967 was threefold. First, it curbed the unilateral privilege of men regarding divorce and polygamy. No longer could a man divorce his wife readily or in absentia. Nor could he marry a second wife without the permission of the court. It was mandatory for both married couple to apply to a court of law for a certificate of non-reconciliation before a divorce would be granted. Second, a woman could petition for divorce under certain condition regardless of whether the privilege of acting as her husband’s agent was stipulated in the marriage contract. Third, parent had to make arrangements for adequate care of the children before divorce could be granted.

In practice, and according to the Islamic law, a man could always marry a second wife, provided he had the financial means to do so, while a woman could only file a petition for a judicial certificate allowing her to annul the marriage.

The reform also stated that “a husband may, with the approval of the court, prevent his wife from an occupation which is repugnant to the interest of his or her family or position” (Article 15).

The Family Law was consistent with the more tolerant reading of Islam and lifting the inequity imposed on women, protecting children’s rights, and safeguarding men’s dignity. Husband and wife shared joint responsibility for the family the adult woman was entitled to self-guardianship, rather than that of a male family member, and had the freedom to exercise it independently and the minimum age of marriage was increased to eighteen for both men and women.

As to the mut’a marriages, the Family Protection Law did not touch that institution, which allows a man to contract a temporary marriage according to Shi’a law.

In general, while the Family Protection Law of 1967 constituted an important step toward reducing discrimination against women, its impact was limited in its scope, and soon the Law was replaced aftermath of the Islamic Revolution of 1979.

 

THE IMPACT OF ISLAMIC REVOLUTION ON IRANIAN FAMILY LAW

As soon as Ayatollah Ruhollah Khomeni took the power in 1979, the Family Protection Law was suspended along with other laws that were considered ‘un-Islamic’. On December 1979, the Revolution adopted a new Constitution based on Islamic shari’a. Article 19 declares that “All people of Iran, whatever the ethnic group or tribe to which they belong, enjoy equal rights and color, race, language, and the like, do[es] not bestow any privilege”.

Article 21 deals exclusively with women, prescribing, that the government must “create a favorable environment for the restoration of [women’s rights; respect mothers, particularly during pregnancy and childbearing; support widows, aged women and women without support and award guardianship of children to worthy mothers, in order to protect the interests of the children, in the absence of a legal guardian”. This notion is also stated in the preamble of the Constitution where it reads:

Women were drawn away from the family unit and the condition of being a ‘mere thing’, or ‘being a mere tool for works’ in the service of consumerism and exploitation. Re-assumption of the task of bringing up religiously minded men and women, ready to work and fight together in life’s fields of activity, is a serious and precious duty of motherhood.

It is important to note that the Revolution granted women ‘intellectual rights’ unseen before in the history of Iran. Both the preamble and the first paragraph of Article 21 underlined the need to grant women for their active part in the Revolution their ‘intellectual rights.’ This made the government of Iran embark on an extensive policy for educating women, a policy that resulted in one of the highest levels of female education in the entire region.

This policy, however, contrasted with the new Civil Code of 1979, which penalized women by authorizing a minimum marriage age of nine years for girls the marriage of virgin women required the consent of their fathers; polygamy was reinstated without any legal restrains; commanded a wife’s obedience to her husband as a necessary condition in order to obtain maintenance; allowed mut’a marriage as a recognized institution (Articles 1075-77);  children were placed in the custody of the father in the event of divorce because “any child born during married life belongs to the husband” (Article 1158). And, in compliance with Qur’anic provisions, Article 1133 of the Civil Code stated that “A husband can repudiate his wife any time he wishes.” Additionally, the Special Civil Courts Act Article 3/2 provides that:

If a husband wishes a divorce in accordance with Article 1133 of the Civil Code, the court must first refer the case to arbitration in conformity with the Holy verse (i.e. the Qur’an): ‘If you fear a breach between the two, bring forth an arbiter from his people and from her people an arbiter, if they desire to set things right; God will compose their differences; surely God is all-knowing, all-aware.’ Permission to divorce shall be granted to the husband, if reconciliation between the spouses has not materialized.

This means that, in compliance with the Qur’an, a husband is guaranteed divorce without having to provide any excuse for it, but there has to be a process of arbitration. The law requires that process to be handled by a judge. Article 1109 of the Civil Code allows a husband to invoke his wife’s disobedience (nushuz) in order to avoid paying her the maintenance due during the idda.

 

MORE POST REVOLUTION CHANGES TO FAMILY LAW

As we noticed in the previous paragraph, the new law was more adaptive to the Qur’an than the pre-Revolution Family Protection Law, and it took away some of the gains that women were able to achieve under the Pahlavi rule. But the rapid changes in the social and educational aspects of the Iranian society after the Revolution, followed by the Iran-Iraq war (1980-88), brought a gradual modification to the laws. The war forced women, to leave their homes and seek work outside. The period also witnessed a rise in women’s’ high education and made them compete for better positions in the job market. These two factors pushed women to delay their marriage and have fewer children. United Nation’s Population Division of the Department of Economic and Social Affairs says that between 1975 and 1980, the total fertility number was 6.5. The projected level for Iran’s 2005 to 2010 birth rate is fewer than two.

The competition in job opportunities in Iran created a conflict in the sphere of family. Women became influential in the public arena and started competing with men in the work force, and female organization embarked on efforts to amend the family law. In early 1982, and under pressure, the Iranian Parliament (Majles) added two provisions to the marriage contract first; the divorce wife was given the right to claim half of the wealth acquired during marriage, as long as the divorce was not deemed her fault. It delegates the right of divorce to the wife, through the intermediary of the court, where certain conditions occurs.

Articles 181 and 1883 of the Civil Code stated that the children of martyrs were to be under the paternal grandfather’s custody. This meant that the payment for the care of the orphans made by the Martyr’s Foundation also went to them. Under pressure from women organizations in Iran, the parliament passed a bill transferring the right of guardianship and tutorship of the martyr’s minors to their mothers, even after a mother’s remarriage.

In 1987, the Iranian parliament approved more benefits for widows and minors of the martyrs mainly better pensions for them, which is the equivalent of the late husband’s last salary. The Martyr’s Foundation also contributed with several benefits, such as free housing and free school tuition.

In 1989 the parliament established a new procedure for men who divorce their wives, the civil courts which have the right to approve a divorce. Thus, in order to divorce, a man had to produce good reasons and the court has the authority to consider those reasons as sufficient and may refuse the divorce. But this seems to violate the Qur’anic provision, which allows a man to divorce his wife, anytime and in any place of his choosing.

 

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

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

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

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

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

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

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

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on Iranian marriage, divorce, custody of the children and inheritance, please read our articles on the following links:

http://www.iraniandivorceinusa.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see Curriculum Vitae at this link: http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/