IRAQI ISLAMIC DIVORCE IN U.S. COURTS

By

Prof. Gabriel Sawma

 

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

 

Introduction

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

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

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

 

The Legal System in Iraq

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

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

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

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

 

The Law of Divorce in Iraq

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

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

 

 

Validity of a Divorce Obtained from Iraq

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

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

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

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

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

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

 

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

 

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

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

Interviewed by:

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Yemeni Divorce and U.S. Immigration

By

Professor Gabriel Sawma

 

When a divorced male immigrant from Yemen remarries in the United States, immigration authorities may conduct more than the usual scrutiny to see that the divorce in Yemen has been done legally in that country. Divorce in Yemen and remarriage in the United States is often looked upon as potentially fraudulent by immigration authorities. A married Yemeni immigrant for example, will come to the U.S., divorce his wife in his country to marry a U.S. citizen, obtain a Green Card, then citizenship, divorce the U.S. citizen and remarries his foreign spouse to bring her here along with the children to the U.S. In a situation like this, a red flag is raised and will most likely initiate investigation by the United States Citizenship and Immigration Service (USCIS). This article covers the law of divorce in Yemen initiated by the husband.

 

The Judiciary in Yemen

The unification of Southern and Northern Yemen in 1991, made possible for their separate judicial systems to be unified at the level of Supreme Court. A Supreme Judicial Council was established to administer the judiciary by appointing and promoting judges and reviewing policies regarding the structure and function of the Yemeni judicial system. The new system established courts of first Instance, which hear civil, criminal, commercial, and family matters. Decisions of the court of first Instance are appealed to courts of appeal. The Yemeni Supreme Court is the highest court in the land; it rules on the constitutionality of laws, hears cases brought against high government officials, and its decisions are final. In addition to regular courts, a system of tribal courts does exist to deal with conflict involving tribal issues.

Article 2 of the Constitution of the Republic of Yemen states that Islam is the religion of the state, and Arabic is its official language. Article 3 reads that “Islamic Shari’ah is the source of all legislation.” This means that matrimonial cases are governed by the provisions of Islamic law.

 

The Law of Divorce in Yemen

Divorce in Yemen can be initiated by either the husband or his wife. Article 58 of Section 2 of the Personal Status Law defines divorce as “end of marriage relationship between married couples, it can be achieved either by expressed announcement that leaves no doubt other than it, or by writing which lacks the intention. The divorce can be announced in Arabic or other languages from which, content can be understood, or by means of writing, or by signal which can be understood by people who cannot talk.”

Divorce initiated by a husband can be achieved by simply stating, three times, “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Once a third announcement of divorce is completed, the wife will be considered divorced from her husband. Such a divorce, when it happens, is irrevocable. This means the couple cannot remarry within the Islamic faith unless the wife marries and divorce a second husband. There are other rules for Islamic divorce involving the iddat, or waiting period whereby by the husband divorces his wife using one or two announcements of revocable, or suspended divorce. If he chooses to remarry his wife before the iddat period has expired, he can do so without the need of a new marriage contract. If, however, the iddat period has expired, then a remarriage is possible, but the couple needs to have a new marriage contract.

 

Validity of a Yemeni Islamic Divorce

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

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

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

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

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

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

 

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

 

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

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

 

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Palestinian Islamic Divorce of West Bank in USA

By

Professor Gabriel Sawma

 

1-Introduction

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

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

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

 

2-Divorce in the Jordanian Personal Status Law

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Egyptian Islamic Divorce in USA

 

By

Prof. Gabriel Sawma

 

Chronology

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

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

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

 

Islamic Egyptian Divorce Initiated by Men

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

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

 

Registration of Divorce

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

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

 

Recognition of Islamic Divorce Obtained from Egypt

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

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

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

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

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

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

 

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

 

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

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

 

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Egyptian Divorce and U.S. Immigration

Egyptian Divorce and U.S. Immigration

By 

Prof. Gabriel Sawma

 

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

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

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

At the end of the ‘iddat period and in the absence of resumption, the spousal relations are dissolved and repudiation becomes irrevocable.

 

Recognition of Egyptian Divorce and U.S. Immigration

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Saudi Divorce in USA

Saudi Divorce in USA

By

Prof. Gabriel Sawma

  

Introduction

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

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

 

Sources of Islamic Family Law in Saudi Arabia

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

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

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

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

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

 

 

The Divorce Law in Saudi Arabia

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

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

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

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

 

 

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

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

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

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

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

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

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

 

 

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

 

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

 

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

 

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Saudi Divorce and U.S. Immigration

Saudi Divorce and U.S. Immigration

By

Prof. Gabriel Sawma

 

Introduction

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

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

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

 

Divorce Law in Saudi Arabia

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

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

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

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

 

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

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

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

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

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

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

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

 

 

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

 

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

 

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

 

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

Saudi Arabian Child Custody Cases in U.S. Courts

SAUDI ARABIAN CHILD CUSTODY CASES IN U.S. COURTS

By

Prof. Gabriel Sawma

 

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

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

Saudi Arabia is a not party or signatory to the Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the Kingdom of Saudi Arabia and the United States dealing with international parental child abduction.  This is the case also for all legal matters involving child custody. Thus the Hague Convention does not apply; instead, the Uniform Child Custody and Jurisdiction Act (UCCJA) and the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA) apply to the child custody decrees obtained from Saudi Arabia. In the UCCJA, “state” is defined as including foreign countries, and therefore, the act applies internationally. Unless specifically identified as a U.S. state, the word “state” in article 23 of UCCJA refers to both U.S. states and foreign countries. It is important to note that the UCCJA is not reciprocal with foreign countries. U.S. states deciding custody jurisdiction will treat any foreign country’s court just like a U.S. court, but foreign countries’ courts, do not use the UCCJA.

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

 

THE JUDICIAL SYSTEM IN SAUDI ARABIA

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

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

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

 

CUSTODY DISPUTES

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

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

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

 

CUSTODY IS BASED ON AGE AND GENDER OF CHILDREN

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

 

ARE SAUDI CUSTODY ORDERS RECOGNIZED IN USA?

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

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

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

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

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

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

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

 

 

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

 

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

 

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

 

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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Pakistani Divorce and U.S. Immigration

 

By

Professor Gabriel Sawma

 

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

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

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

 

1-Divorce by Wife:

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

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

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

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

 

2-The Judicial Act

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

 

 

Muslim Divorce in Tunisia

Muslim Divorce in Tunisia

By

Prof. Gabriel Sawma

 

 

Background

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

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

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

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

 

Code of Personal Status (CPS)

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

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

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

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

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

 

The Law of Divorce in Tunisia

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

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

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

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

 

DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author at gabygms@gmail.com or call (609) 915-2237.

 

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association. Lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State.  http://islamicdivorceinusa.com/about-2/

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

http://www.muslimdivorceinusa.com