By Prof. Gabriel Sawma
Syria is an independent state in the Middle East. It borders Lebanon and Israel to the west, Turkey to the north, Jordan to the south and Iraq to the east. In ancient history, Syria was occupied by Canaanites, Phoenicians, Hebrews, Aramaeans, Assyrians, Babylonians, Persians, Greeks, Nabataeans, Palmerenes, Romans, Byzantines, Arabs, Crusaders, Mongols, Mamluks, and the Ottomans. From early times in its history, Syriac, a dialect of Aramaic, was the national language of the country. It developed after the Aramaeans invaded Syria during the upheavals of the 13th century BC. Aramaic was spoken and written language of the inhabitants of modern-day Turkey, Syria, Lebanon, Transjordan, Iraq, Palestine, parts of Egypt and the western parts of Iran. Aramaic was also the language of the Arab tribes who lived in Syria under the Romans and Byzantine Empires before the Islamic conquest in 636 AD. Epigraphic materials from the Nabataean and Palmerene kingdoms show that these two major Arab kingdoms had their inscriptions written in Aramaic and Greek; none was written in Arabic since modern Arabic script was not developed yet. Most of the modern day villages and cities throughout Syria and the Middle East still preserve their names in Aramaic. Aramaic was displaced by Arabic in the following centuries that followed the Islamic conquest of Syria and the region. Damascus, capital of modern-day Syria, was the seat of the Umayyad Dynasty in early Islam.
In 1517, Syria fell to the Ottoman Turks and formed a major territory of the Ottoman Empire. While under the Ottomans, Syria was occupied briefly by the ruler of Egypt, Ibrahim Pasha from 1832 to 1840. After World War One, the Ottoman Empire was dismembered and Syria came under the Mandate system which was established by the League of Nations. In accordance with the Sykes-Picot Agreement signed during the War between France and Great Britain, France held control over modern Syria, Lebanon, Alexandretta and other portions of southern Turkey. In 1939 Turkey recaptured Alexandretta.
In January 1, 1944, Syria was recognized as an independent republic; the following year, the Syrian government announced the formation of a national army. In March of that year, Syria became a member of the United Nations, and in April, it signed the pact of the League of Arab States (Arab League). In view of the recent turmoil and lack of progress in reforms promised by President Bashar al-Assad, Syria’s membership in the Arab League has been temporarily suspended as of November 12, 2011.
Islamic Law of Marriage and Divorce in Syria
In 1917, the rulers of the Ottoman Empire passed the “Ottoman Law of Family Rights” (OLFR); the law represented the first state-sponsored codification of the personal status law as part of Islamic sharia. OLFR of 1917 remains in effect as the Muslim personal status law of Lebanon, and Israel to this day, and was recognized as the official law of Syria until 1953 and in Jordan until 1951.
Thus, the Islamic law of Syria was integrated in the Ottoman legal system. In 1926, Law No. 261 was introduced to render to Sharia courts the powers related to personal status, succession and waqf (real estate property and institutions belonging to Muslim religious community.) In contrast to Lebanon, Islamic sharia courts in Syria were regarded as ordinary judicial authorities in matters of personal status of non-Muslims, except for matters left to the jurisdiction of the communal courts. Matters of guardianship, succession, wills, legal majority (rushd), and maintenance of relatives within the family, waqf-khayri (real estate property and institutions belonging to non-Muslim communities) are controlled by the sharia courts. The sharia courts consist of a single qadi (judge), whose rulings may be appealed to the sharia department of the Court of Cassassion (mahkamat al Tamyeez). The law of 1926 established religious courts for non-Muslims with jurisdiction limited to matters not within the competence of the sharia courts; mainly in cases involving betrothal, marriage, divorce, matrimonial and children maintenance.
In 1953, the Syrian Law of Personal Status replaced the Ottoman Family Law of 1917. This law is based on the Hanafi School of jurisprudence and on other legislations adhered to by other Sunni doctrines. Islamic marriage contracts have to be signed by the couple in addition to a judge, and then registered with the state authorities. In Islamic marriage contract the value of the mahr has to be stated. The husband has duty to support his wife and provide her with a residence. The property of the husband and the property of the wife are not merged through marriage. In compliance with Islamic sharia, the law of Syria allows polygamy, although amendments in 1975 were passed to restrict the absolute right for a man to take a second, third, or a fourth wife.
In compliance with Islamic sharia, the Syrian code grants husband the right to divorce his wife, without a specific cause (Arabic, talaq). Thus, a man can divorce his wife any time, in any place, without any reason. The marriage can be terminated by the husband by announcing, three times “I divorce you”, or “I divorce my wife”, or “you are divorced”, or “my wife is divorce”, or by any statement that indicates his intention to divorce his wife. Also, according to Islamic sharia, the law of Personal Status of Syria, a man has the right to remarry his divorced wife, but only if she remarries and divorce another man.
The Syrian code does not allow women to initiate divorce in the same manner husbands do; instead, women have recourse to a judicial divorce (khul’). Women may also seek dissolution of the marriage if the husband is impotent or insane, or if he has been absent for over a year, or if he refuses to offer maintenance to his wife. When Islamic divorce occurs, custody of children (hadanah) of the young child resides with the mother, during childhood. If the mother remarries, she loses this right. As to guardianship (wilayah) of the children, this right is reserved for the father alone, or in case of the father’s death, the paternal grandfather is entitled to the custody. If the grandfather is dead, a paternal uncle assumes guardianship.
Article 3 of the Constitution of Syria states that, Islamic jurisprudence is “a main source of legislation”. The constitution also states that “the president has to be Muslim. In 1961, Law No. 12 was introduced; it establishes twenty-five Muslim courts throughout Syria. Each court consists of a single qadi (judge), except for those in Damascus and Aleppo, which comprise of three judges each. Islamic sharia courts are state courts with jurisdiction over the Law of Personal Status.
Recognition and Enforcement of Syrian Islamic Divorce in USA
The problems associated with recognition of a foreign divorce obtained from Syria arise when a U.S. citizen travels to Syria and obtain a quick divorce “triple talaq”. Such a divorce is generally entitled to recognition in the United States if it was valid and effective in Syria where it was granted and that Syria was the residence or domicile of both parties. U.S. courts will determine if the divorce was obtained by mail, by fraud or by any means that may violate State’s public policy requirements. Recognition of a divorce obtained in Syria may require that the person has his or her domicile in Syria, or whether both parties appeared in the divorce action, even in the absence of domicile. All of these factors are taken into consideration before the divorce obtained in Syria is recognized and enforced in the United States. Individuals facing these issues should consult with a competent attorney and/or consultant before they initiate any legal action.
It is important to note that a civil divorce obtained in the United States for couples belonging to Muslim faith, is not recognized by Islamic tribunals in the Middle East or any other country whose personal status laws are based on Islamic sharia. Islamic sharia does not recognize a divorce obtained outside its rules. Muslim individuals, mainly women, who obtain civil divorces in the United States, and would like to remarry within the Islamic faith, must obtain an Islamic divorce too, a civil divorce alone in not enough. Muslim women who obtain a civil divorce alone in the United States and then remarry without obtaining an Islamic divorce may face prosecution in the Middle East for adultery. They may even face stoning in some countries. Furthermore custody of their children born of Islamic marriage will be taken away and granted to the father or to his paternal family members. Again, Muslim women who obtain civil divorce only in the United States should consultant a competent attorney and/or consultant before they travel to a country whose family law is based on Islamic sharia.
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East Background; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic and Hindu Divorce in U.S. courts; admitted to the Lebanese Bar Association of Beirut; Associate Member of the New York State Bar Association and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com
Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com
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