Islamic Women Divorce Laws in Egypt

newswire article commentary united states 02.Jun.2011 16:36

gender & sexuality | human & civil rights

author: Gabriel Sawma       e-mail:e-mail: [email protected]

 

Under the rules of Islamic sharia, the husband can end his marriage unilaterally by simply announcing the words “I divorce my wife” or “I divorce you” three times. He does not need to justify his decision, nor explain any reason for his divorce and never need to enter a courtroom to end his marriage. Egyptian Muslim women however are denied equal right to divorce. They are trapped in unwanted marriages or left begging for a divorce that can take years to obtain and leave them destitute.

 

Egypt’s Islamic family law of divorce is established in five legislations: (1) the law of 1920; (2) the law of 1929; the law of 1979; (4) the law of 1985; and (5) the law of 2000.The Divorce Laws of 1920 & 1929
The 1920 law deals with divorce and financial support under which a woman might be eligible to seek a divorce from her husband, The law restricted woman’s right to divorce to  lack of husband’s economic support, such as desertion, disappearance, and imprisonment. Article 1 of the Law of 1920 provides that maintenance was a cumulative debt owed by the husband to his wife, it starts from the first time the husband failed to support his wife. Article 2 decreed the wife’s maintenance debt should be computed from the date of her divorce. Articles 4 and 5 included the husband’s failure to provide maintenance as sufficient grounds for divorce.The law of 1920 provided that if the husband is absent or imprisoned and if he does not own a property from which the wife’s maintenance can be extracted, the wife is then entitled to a divorce on the grounds of non-support. And, if the husband lives in a distant place, or his location is unknown, the wife is granted a divorce at once. Article 6 provides the husband a further period to pay the maintenance, the waiting period of the menstrual cycle (iddah). A divorce obtained from the religious court in nonsupport cases is irrevocable, however, payment of the current maintenance is a sign of good will and sufficient to reverse the divorce.The 1920 law provides that a wife may seek judicial divorce if the husband suffered from an irreversible illness such as madness, leprosy, or impotence, whether or not the illness was developed before or after the marriage. According to the law of 1920, women were not allowed to divorce if the husband claims poverty. In all these cases, women had to file for divorce in front of a male judge. At the same time, the law allowed men to exercise their divorce according to Islamic sharia by uttering the formula of divorce anywhere they choose.The law of 1929 granted women right to seek judicial divorce according to Maliki School of jurisprudence in case the husband was absent for an extended period of time. This particular cause for divorce is not included in the Hanafi doctrine. According to the Maliki School, the judge may issue a divorce decree when the husband abandons his wife for more than one year without the knowledge of his wife.

The law of 1929 stipulates that a woman whose husband had been sentenced to more than three years may seek divorce after a separation of at least one year. This complies with the Maliki doctrine.

In view of the maltreatment inflicted  by men on their wives, the Egyptian government deemed it necessary to adopt the doctrines of the Maliki School of jurisprudence to make it easy for women to get out of their dysfunctional marriages associated with maltreatment and sufferings, a doctrine which is absent from the Hanafi School. The 1929 legislation allowed judges dealing with Islamic divorce to refer to Maliki School instead of Hanafi in order to grant a woman the right to divorce her husband in case of maltreatment.

Furthermore, the Law of 1929 grants the wife the right to seek judicial divorce in case the husband suffers from serious and incurable disease, if such a cause makes life harmful to women.

Article 6 of the law decreed that where a wife’s allegation of maltreatment detrimental to the continuation of marital relationship is substantiated and reconciliation becomes impossible, the judge (qadi) shall grant the wife an irrevocable divorce. To prove the harm and bad treatment inflicted by the husband, the wife must present two witnesses, whose testimonies will be subject to the unconstrained assessment of the judge who evaluates the evidence.

If the judge rejects the wife’s petition for divorce, twice,  the law mandates that he appoints two arbitrators for the couple in accordance with the Quran injunction: “And if you fear a breach between the two, then send forth an arbiter, one from his family, another from hers” (Q. 4:35). Article 7 stipulates that if this is not possible, men acquainted with the circumstances of the case should be appointed. These men should conduct thorough investigation of the causes for the married couple and submit recommendations to the court for reconciliation if that becomes possible.

Article 10 provides that should the arbitrators indicate a deadlock, the judge is to order them to make a new attempt. If the new attempt fails, then other arbitrators are to be appointed. Article 11 stipulates that the final judgment of divorce is made after the newer attempts were fruitless and the prospect for reconciliation reached a deadlock.

The Divorce Laws of 1979 and 1985
Under Islamic sharia, a Muslim husband is entitled to marry up to four wives at a time. In 1979 President Anwar Sadat issued Decree-Law No.44 to amend the previous laws of 1920 and 1929, mainly in the area of polygamous marriages. A new provision was added requiring that the husband’s remarrying without the first wife’s (or first wives’) consent be considered harmful and that if the husband remarries a second wife, his first wife is granted a judicial divorce upon her request provided that she became aware of his second marriage within a year from the day she got to know of his remarriage. The ground for such a divorce is based on the notion of harm inflicted on the wife. This law was criticized and challenged on the basis of restriction to polygamy which is considered legal and religiously legitimate in Islam.

In 1985, the Decree-Law No.44/1979 was declared unconstitutional on the grounds that it was passed by presidential decree and presented to the Egyptian Assembly as a done-deal.  Later in the same year the Law No. 100/1985 was passed again with some revisions. It states that polygamy may be considered a possible source of harm, according to which a woman may seek judicial divorce. Under such circumstances, the wife presents the court with evidence showing the harm. The judge evaluates the evidence and issues his ruling. The law of 1985 does not prohibit the husband from having a polygamous marriage; it only offers a remedy to the first wife who would can seek divorce for damage resulting from her husband’s second marriage. A wife seeking divorce on this ground has to bring two witnesses to testify for the damage incurred. Such a procedure is lengthy and costly for the wife.

Although the law allows women to divorce for polygamy, in many instances, judges refuse to apply this provision, which they consider to be contrary to Islamic sharia and to the Constitution of Egypt. Article 2 of the Constitution of 1980 affirms that Islamic sharia is “The main source of legislation”. Accordingly, judges who opposed the new provisions in the divorce law brought up the “unconstitutionality” issue.

The Law of 2000
In 2000, a new legislation was introduced in Egypt allowing women to seek judicial divorce in a procedure called Khul’, according to which, a married woman can request a judicial divorce in exchange for monetary compensation. This procedure is well known in Islamic sharia, but Egyptian judges did not intervene in such a divorce. Islamic sharia requires that the husband consent to this type of divorce without judiciary interference. The new law grants the wife right to seek a judicial divorce through khul’ without the consent of the husband. Under such divorce, the wife declares that she detests life with her husband, that the marital status between the couple has become impossible to continue, and that she fears she will not be able to maintain the “Limits of God” due the deteriorating relationship with her husband.

As a compensation for the husband, she has to forfeit her maintenance (nafaqah), her compensation of “mahr” and agrees to return to him the amount of “mahr” that he paid her at the marriage and she must renounce the amount of the “deferred mahr” (mu’akhar). The law of 2000 made it possible for a wife to get a “no fault divorce” from the judge after a lengthy process of reconciliation. For more on the khul’ divorce in Egypt, see our piece on this topic titled: “The Khul’ Divorce in Egypt”.

Anti-Women Sentiments in the Egyptian Law
It is extremely important to note that this discussion covering the Egyptian Personal Status Laws (or family law for the Muslim community) is derived from Islamic sharia and codified by the Egyptian government.

Furthermore, Muslim women seeking divorce in Egypt are denied equal access; they are at a distinct disadvantage for no reason other than they are women. Muslim women seeking divorce in Egypt must resort to the notoriously backlogged, inefficient court system and face procedural and evidentiary hurdles that are inherently discriminatory and may take several years to get a divorce.

When men initiate divorce, they do not have to go through reconciliation process. In fact a husband can divorce his wife in as little as one hour with the local marriage registrar. The wife does not have to be informed.
When women seek divorce, including those of domestic violence, they must submit to compulsory mediation in the name of family preservation and the biased notion that women are unable to make rational decisions about family issues. Many Egyptian Muslim women, including those in abusive relationships, refrain from ever attempting to seek divorce for fear of violence and potentially life-threatening marriages.

In all other court cases in Egypt, a woman’s testimony is worth half of a man. Therefore a woman living with a violent husband would need testimonies from two men, four women, or one man and two women to prove her case.
The khul’ law of 2000 failed to address the discriminatory aspects of the divorce system. Its introduction has spared women the need to specify grounds for divorce, but forced them to give up critical financial rights in exchange for divorce, such as returning any cash or property provided by her husband under their marriage contract. This option is limited only to women with significant resource or those who are desperate for a divorce.

Recognition of Egyptian Divorce in USA
In the United States, state courts decide on divorce cases. A divorce judgment issued in Egypt is generally recognized in the United States on the basis of “comity”, provided that both parties to the divorce receive adequate notice, such as services of process and at least one of them is domiciled in Egypt at the time of the divorce.

Egyptian women citizens of the U.S. must obtain divorce decrees from Egypt as proof of divorce. The documents must be authenticated by the relevant authorities in Egypt and the U.S. This is important to women who could not remarry without presenting proof that they are free to remarry. Egyptian Muslim women who remarry without obtaining a divorce decree from Egypt, their second marriage may be considered illegal. In Islamic countries, women who remarry without divorce documents, may be labeled as adulterous, and in some countries like Pakistan, Iran, Saudi Arabia and Sudan may be subject to the death penalty by stoning under strict interpretations of 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 technical or legal advice on the information provided and related topics, please contact the author.

Republishing of this article is permitted.

Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law and Islamic sharia. Expert consultant on Islamic divorce in U.S. courts: http://www.islamicdivorceinusa.com

Editor in chief of International Law blog, http://www.gabrielsawma.blogspot.com 

Email: [email protected]

Tel. (609) 915-2237

Iranian Muslim Divorce in USA


     By Gabriel Sawma, Esq., Expert ConsultantExpert Consultant in Islamic Banking and Finance; Islamic Divorce in US Courts

PhoneCall Prof. Gabriel Sawma at (609) 915-2237

Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition and enforcement of the Iranian divorce in a state court.
The Family Law in Iran was codified in 1928 and 1935 as part of the Iranian Civil Code. The law set a legal age requirement for marriage, prohibiting the marriage of girls under 13 and requiring court permission for the marriage of those under 15. In 1931, a separate legislation, known as the Marriage Law (qanun-I izdivaj) was enacted; it made marriage subject to state provisions and required the registration of all marriages and divorces in civil registrars. The law of 1931 expanded the grounds on which women could initiate divorce proceedings and required such actions to be brought before civil courts rather than Islamic sharia courts.In 1967, the Family Protection Law (qanun-I himaya-I khanivada) was enacted. This law was considered a departure from the traditional Islamic sharia. It abolished the husband’s rights to extra-judicial divorce and polygamy, and increased the age of marriage to 15 for females and 18 for males. The law established special religious tribunals, headed by judges trained in modern jurisprudence. This law was criticized by Muslim clergy, calling it un-Islamic, and was regarded in violation of Islamic shria principles.In 1975, the Family Protection Law was replaced by another law carrying the same title. This law increased the minimum age of marriage from 15 to 18 for females and from 18 to 20 for males, and provided the courts with discretionary power to decide cases involving child custody, disregarding Islamic sharia provisions.

Following the Iranian revolution or 1979 under Ayatollah Khomeini (1902-1989), the Family Protection Law was annulled and replaced by the Special Civil Court Act. The new law was entirely enacted in compliance with the Shiite law of ithnai Ashar (Twelvers), the courts are empowered to deal with a whole range of family issues, including divorce. According to the new law, legal marriage for girls plummeted to nine; 15 for boys, and members of the Iranian society were strictly segregated along gender lines. Women were forced to put hijab and were not allowed to appear in public with a man who was not a husband or a direct relation such as brother, father, or son. Women could be stoned to death for adultery, which incidentally, includes being raped. But the reformists under former president, Khatami, allowed single women to study abroad and raised the legal age for marriage from nine to 13 for girls. However, a woman’s testimony in Iran is worth half that of a man in court and in the case of blood money that a murderer’s family is obliged to pay to the family of the victim, females are estimated at half the value of a male.

In mid 2007, the government of Ahmadi Najad began enforcing restrictive laws; women wearing too much make-up and not enough scarf were arrested; they were first banned from attending the country’s popular soccer matches held in public stadiums, but later, under pressure, the president allowed women to attend the games on the ground that their presence would be “morally uplifting” and make the men behave better.

The new law requires marriage and divorce to be registered with the courts; the husband has unconditional right to divorce his wife for which he needs not to give any reason and his wife is almost certain to lose custody of her children. The new law allows the wife to divorce her husband under khul’, and even then she would have to present to the court a power of attorney from the husband allowing her to divorce herself on behalf of her husband. A woman is allowed to seek divorce if her husband was insane, impotent or infertile, absent from home without reason, imprisoned, or unable to support his wife. A woman seeking divorce in Iran must provide the court with supporting evidence to get a divorce decree.

Iranian Muslim couples faced with a divorce situation in the United States, see themselves in a dual process of having to go through civil as well as religious divorce, especially for a Muslim woman; she is prohibited by Islamic sharia from marrying a non-Muslim man unless he converts. Divorced Muslim men and women must obtain an additional religious divorce decree from Muslim authorities should he or she decides to remarry in compliance with sharia; civil divorce alone is not recognized in Islam. Under Islamic sharia, a Muslim woman or man is still considered married even though she or he has obtained a civil divorce. Failure to obtain an Islamic divorce before remarrying, the woman would be considered adulterous and might risk her life if she travels to a country where stoning for adultery is still in place, such as Pakistan, Iran, Sudan, and Saudi Arabia.

American Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country. They get divorce decree by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition of the Iranian divorce in a state court. Divorce obtained in Iran is less expensive to the husband; women get the amount of “mahr” as stipulated in the marriage contract, usually less than what a U.S court may rule on, and the divorce is obtained in a short time, without having to hire an attorney. Islamic divorce does not allow women to receive compensation other than the amount of “mahr” she and her family agreed upon before her marriage.

State courts in the U.S. deal with Islamic divorce obtained overseas on the basis of “comity”, a discretionary doctrine that governs the recognition of divorce rendered by the courts of a foreign country. Although occasionally, courts in England and the United States use the term “international comity” in the meaning of general international law, the more accepted concept of this doctrine defines it as rules of courtesy or goodwill which states observe in their mutual relations without any sense of legal obligations under international law. The desire for a Muslim man to obtain divorce from Iran and have it recognized and enforced in the United States, is generally entitled to recognition if it was valid and effective in Iran, and that Iran was the residence or domicile of both parties or at least one party. In other cases, recognition in the United States of a divorce obtained in Iran will depend on the way the divorce was obtained by mail, by default, by phone, or upon the appearance of both parties. A divorce obtained in Iran should not violate U.S. public policy and cannot be “repugnant” to major principles of U.S. law. State courts have the sole competent to recognize or to deny recognition of a divorce decree obtained in Iran.

Although divorce recognition within the United States is dependent on the concept of domicile, an Iranian divorce may be recognized where both parties appear in the action, even in the absence of domicile. In New Hampshire, a Muslim husband secured a Lebanese divorce, based on Islamic sharia by declaring that he pronounced the divorce of his wife by saying three times “I divorce you” in her presence and by going to Lebanon to consult an attorney and sign divorce papers. The New Hampshire family court refused to recognize the Lebanese ex parte divorce. The court reasoned that the wife would be forced to bear the burdensome cost of an ex parte divorce obtained in a foreign nation where neither party is domiciled.

ABOUT THE AUTHOR:  Prof. Gabriel Sawma
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic finance. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law blog; Lecturer on Islamic economics; Author of “The Aramaic Language of the Qur’an”.

Email: [email protected]

Email: [email protected]

Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq., Expert Consultant

More information about Gabriel Sawma, Esq., Expert Consultant

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 technical or legal advice on the information provided and related topics, please contact the author.

Pakistani Islamic Divorce in U.S. Courts

Expert Witness Directory

Pakistani Islamic Divorce in U.S. Courts


     By Gabriel Sawma, Esq., Expert ConsultantExpert Consultant in Islamic Banking and Finance; Islamic Divorce in US Courts

PhoneCall Prof. Gabriel Sawma at (609) 915-2237

Pakistani men residing in the U.S. travel to their homeland to get divorce decrees from Pakistan. They return back to the United States and seek recognition and enforcement of the Pakistani Islamic divorce decree in a state court. This article deals with the issues related to Pakistani Islamic divorce in U.S. courts.
Following the partition of Pakistan in 1947, the Islamic family law regulating marriage and divorce introduced under the British rule continued to govern until 1961 when the government of Pakistan passed the Muslim Family Law Ordinance (MFLO) to regulate divorce in that country.The Constitution of Pakistan requires all laws to be brought in accordance with the Quran and the Sunnah which constitutes the deeds and sayings of Muhammad, the prophet of Islam. Chapter 3A establishes the Federal Shariat Court. The law of marriage and divorce is governed by the rules of Islamic sharia.The law requires the age of males entering into marriage to be 18, and for females 16; there are penalties for contracting under-age marriages, though under age marriages in Pakistan remain valid regardless of the age limit. As to the guardianship issue, the law requires the application of the Hanafi School of Jurisprudence allowing a woman to contract herself in marriage without the consent of her guardian (wali).

The law requires mandatory registration for marriage; failure to register, however, does not invalidate the marriage. Legal constraints are placed on polygamy by requiring the husband to register his marriage at the local Union Council for permission and notification of existing wife/wives. The chairman of the Union Council establishes an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The law requires that the application must state whether the husband has obtained consent from the existing wife or wives. Violation to these rules is subject to fine and/or imprisonment and the husband becomes bound to make immediate payment of “mahr” to the existing wife or wives. However, if the husband does not obtain consent of his existing wife/wives, the subsequent marriage remains valid regardless of the provisions stated in the law; that is because provisions of Islamic sharia are superior to any other law in Islamic countries.

Under the rules of Islamic divorce in Pakistan, a husband can divorce his wife unilaterally, any time, in any place, and, without any obligation to state a reason for divorce. After the husband announces his divorce statement “I divorce you”, three times (triple talaq), the law mandates that the husband gives a notice in writing to the chairman of the Union Council. The chairman must forward a copy of the notice of divorce (talaq) to the wife. Non-compliance with these provisions is punishable by imprisonment and/or fine. The law requires that within thirty days of receipt of the notice of divorce, the chairman of the Union Council must establish an Arbitration Council in order to take steps to bring about reconciliation between husband and wife. If reconciliation is failed, a divorce takes effect after the expiration date of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If the wife is found pregnant during the period following the announcement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. Since the 1980s, and in view of the pressure from Islamic sharia scholars, the practice of the courts in Pakistan is that they validate a unilateral divorce by the husband (triple talaq) by pronouncing “I divorce you” three times, despite a failure to notify the Union Council; this is because Islamic sharia allows a husband to divorce his wife at will, without any provision regarding registration of divorce.

U.S. State family courts do not apply Islamic sharia because of violation of the Establishment Clause set in the U.S. Constitution. However, state courts can recognize divorce decrees issued in Pakistan on the basis of a doctrine in private international law known as “Comity”. Such recognition does not entail an obligation on State Courts to agree with the rulings of a foreign divorce judgment in Pakistan. The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a court in that country, obtains an easy divorce by just stating three times: “I divorce you”, or “I divorce my wife”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, records his divorce in Pakistan, authenticate the documents through proper channels, travels back to the United States, serves his wife with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Court.

Recognition of Pakistani Islamic divorce decree by a State court in the United States on the basis of “comity” is not mandatory. State courts may deny recognition and subsequent enforcement if the judge deems the Pakistani law is “repugnant” to a U.S. principle of law. Generally speaking, foreign divorce judgments are recognized on the basis of “comity” if the parties involved receive adequate notices, i.e., service of process, and, generally, provides one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and no prejudice towards either party, and should not violate a strong U.S. principle of law.

An Islamic divorce decree in Pakistan differs substantially with respect to property division and the “mahr” stipulation. Under Pakistani Islamic law of divorce, wives are entitled to the deferred “mahr”, which is, in most cases, much less than what a State court in the U.S. grants the wife. State courts may not recognize a Pakistani divorce decree if the cause of action on which the divorce is based is “repugnant” to “Public Policy”.

An authorization to republish this article is hereby granted by the author, provided the author’s name appears with the article.

ABOUT THE AUTHOR:  Prof. Gabriel Sawma
Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law; Instructor on Islamic economics; Author of “The Aramaic Language of the Qur’an.

Email: [email protected]

Email: [email protected]

Tel. (609) 915-2237

Copyright Gabriel Sawma, Esq., Expert Consultant

More information about Gabriel Sawma, Esq., Expert Consultant

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 technical or legal advice on the information provided and related topics, please contact the author.

Islamic Lebanese Divorce in U.S. Courts

Published: SEPTEMBER 18, 2011  I WWW.NEWJURIST.COM

Gabriel Sawma

Islamic Lebanese Divorce in U.S. Courts

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States? BY GABRIEL SAWMA

Historical Background

Lebanon was ruled by the Ottoman Empire from 1516 until World War One. Relief came in September 1918 when the British army moved along with the Arab forces into Palestine and opened the way for the occupation of Syria and Lebanon. At San Remo Conference held in Italy in April 1920, the Allies gave France a mandate over Greater Syria, which includes modern day Republic of Lebanon, and the Arab Republic of Syria. France then appointed General Henri Gouraud to implement the mandate provisions over the two countries.

As a result of the French mandate, the laws of Lebanon were greatly influenced by the French legal system and judiciary. Due to the fact the Lebanese population is heterogeneous; the leaders of the country developed a highly complex system of governing, whereby a complex power-sharing among the main religious communities, mainly Christians and Muslims were put into effect. By 1970, the balance of power between Christians and Muslims was threatened due to the influx of Palestinian refugees, fleeing from the 1970 civil war in Jordan; they were joined by the Lebanese elements that aligned themselves with the liberation of Palestine. That led to a civil war in 1975, which continued until 1990.

 

The Religious Court System in Lebanon

The judiciary in Lebanon is divided into four main court systems; each is spread among other subdivisions. The systems are: (1) the “qada’ Adli” or the judicial courts; (2) “Majlis al-Shura” or the administrative court system; (3) the military court system; and (4) the religious courts.

The religious court system in Lebanon is composed of the court systems of eighteen recognized denominations covering the three main religions of Christianity, Islam and Judaism. The jurisdiction of these courts is limited to family law matters and other matter defined by the law.

The Muslim courts are known as “al-Mahakim al-Shar’iyyah” for Sunni Muslims and al-Mahakin al-Ja’fariyah for Shia Muslims and another system for the Druze sect. There are also ecclesiastical courts for the different Christian denominations and a Jewish court for the Jewish community. Judgments of the Courts of First Instance are appealed to the relevant courts of Appeals for each denomination.

 

Source of the Islamic Family Law

The source of Islamic family law for the Sunni Muslims of Lebanon is based on the 1962 enactment known as The Law of the Rights of the Family, which stipulates that “the Sunni judge shall give judgment according to Hanafi doctrine, except in cases specified in the Ottoman Family Rights Act of 1917”. The Hanafi School of jurisprudence in Sunni Islam is one of four “schools of thought” or “schools of jurisprudence” (Arabic singular, madhab; plural, madhaheb) and is considered the oldest school of law. It was named after its founder, Imam Abu Hanifa (father of Hanifa) from Iraq (700 AD).

During the Ottoman Empire, the Hanafi School was the most spread and widely applied in the areas of marriage, divorce, inheritance, child custody and waqf (real estate establishments owned by the Muslim communities such as mosques, madrassas, and other religious institutions). In addition to the Hanafi doctrine, Muslims belonging to other schools of thought were allowed, under the Ottoman rule, at times, to have their cases looked at by other Islamic schools of jurisprudence, such as the Shafi’i, Hanbali or Maliki. All of them applied Islamic Sharia principles in Islamic family disputes. Sharia is the Arabic term for Islamic law. In Lebanon, the provisions of the Hanafi School are applied to Sunni Muslims in family issues involving marriage, divorce, child custody, inheritance and waqf.

 

Divorce in Lebanon under the Hanafi law

Under the Hanafi rules, a man can divorce his wife at will, any time, any place, with or without a reason, regardless of the wife’s approval or approval of the court. The husband does not have to bring any excuse for his divorce. He can do so using the “Triple Talaq” doctrine by uttering the following words three times: “You are divorced” or “my wife is divorced”, or “I divorce you” in the presence of witnesses. Such an announcement will terminate the marriage immediately.

For the purpose of documentation, the husband has to have the religious court sign off on his divorce in the presence of two male witnesses, or one male and two female witnesses. The only obligation on the husband is to pay his wife the ‘mahr’ as stipulated in the marriage contract. The ‘mahr’ consists of the amount of money or its equivalent that the husband gives his bride at the wedding or during the divorce. It can be paid partially or in full, at the wedding or during the divorce. The amount of the ‘mahr’ paid at the divorce does not take into consideration the inflation aspect. For example, a woman who was married twenty years ago and whose ‘mahr’ was worth one thousand US Dollars at the time of marriage, will receive that amount only without any interest, which might be worth much less at the time of divorce.

The “Triple Talaq” doctrine can be used by the husband only. The wife does not have the same privilege. A wife seeking Islamic divorce in Lebanon must go through a judicial process; her request must fall under certain criteria, typically khul’s, abuse, and mistreatment; inability to provide financial support, prolonged absence from the home or incarceration. Under such circumstance the wife has to prove her claims and it is up to the court to agree to her request or disagree.

 

Recognition in the U.S. of Islamic Divorce Obtained in Lebanon

American men with Lebanese ancestry may travel to Lebanon in order to obtain quick divorces. In such a situation, the man leaves most of his property, children, and wife in the United States. But could the divorce obtained in such a way be entitled to recognition and enforcement in the United States?

Recognition of foreign divorce judgments by U.S. courts is based on the principle of ‘comity’ in private international law. The U.S. Constitution does not require that states should recognize and enforce foreign divorce judgments. State courts will only recognize foreign judgments of divorce if the decree obtained overseas is in accordance with the principles of comity among nations. This means that due regard to international duty and convenience, and the sense that respect is due to the judicial act of another nation, comity becomes a deference accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that the foreign court has jurisdiction and due process was provided to the parties involved and that public policy of the state in which the recognition is sought is not violated. Should the decree fail to meet these criteria, it will not be recognized as such.

The most important criterion that a state court will consider is the domicile of the parties at the time of the foreign divorce was obtained. State courts will consider recognition of a foreign judgment of divorce under the doctrine of comity if the Due Process Clause of the Fourteenth Amendment was respected and most importantly, if the public policy of the state was not violated.

 

About the Author

Gabriel Sawma, a lawyer with Middle East background, dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari’a law. Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic at Fairleigh Dickinson University, NJ. Professor of Islamic Finance at the University of Liverpool, UK. Professor of Islamic Economics at Islamic Economics, http://www.islamiceconomics101.com.

 

Expert consultant on Middle East affairs, terrorism and authority on Islamic Shari’a, including Islamic marriage contracts, the mahr, Islamic banking and finance, Islamic inheritance and child custody. Admitted to the Lebanese Bar Association of Beirut. Associate Member of The New York State Bar and the American Bar Associations. Author of an upcoming book on Islamic marriage Contracts in U.S. Courts and the mahr issue. For free initial consultation: Email: [email protected]

Email: [email protected]

Tel: 609-915-2237

 

 

 

 

About Gabriel Sawma

Curriculum Vitae – Prof. Gabriel Sawma
gabriel_sawma
  • Professor: Middle East Studies at Fairleigh Dickinson University.
  • Lawyer with Middle East Background; Graduated in 1970 from the Lebanese University, school of law.
  • Admitted to the Lebanese Bar Association of Beirut.
  • Practiced law in Beirut at the law firm of Rizkallah & Farah.
  • Nominated to be a judge in Lebanon, Lebanese Judicial Studies..
  • Supervised contracts in Europe and the Middle East.
  • Traveled extensively to the Middle East, including Lebanon, Syria, Jordan, Saudi Arabia, Qatar, Bahrain, United Arab Emirates.
  • Worked in Saudi Arabia.
  • Expert consultant on Islamic law.
  • Expert consultant on Islamic divorce in USA.
  • Expert consultant on mahr agreements in Islamic marriage contracts.
  • Expert consultant on Islamic finance.

Professor at Fairleigh Dickinson University

285 Madison Avenue,

Madison, NJ 07940-1099.

Taught the following courses:

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

Lecturer on Islamic Finance at the University of Liverpool:

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

  • Arabic 101

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

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

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

Lectured in New York at the American Academy of Matrimonial Lawyers

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

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

http://www.islamicdivorceinusa.com  

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

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

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

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

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

http://www.gabrielsawma.blogspot.com 

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

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

 

The Appellate Division Affirms

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

 

Won A Landmark Case in Pennsylvania Involving Custody of Children

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

The custody order of  the Court of Allegheny is available at request. For more information on Abduction of children or fear of abduction to Muslim majority countries, please see our website at: www.gabrielsawma.blogspot.com

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

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

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

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

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

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

LANGUAGES

Speak, read and write: Arabic, English, French, Syriac, Biblical and Talmudic Aramaic

BAR ASSOCIATIONS

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

 CONTACT INFORMATION: 

Tel. (609) 915-2237

Email: [email protected] 

Email: [email protected] 

 

Websites:

http://www.islamicdivorceinusa.com 

http://www.gabrielsawma.blogspot.com 

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

And, http://islamicdivorceinamerica.com

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