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

 

 

 

 

 

 

 

 

 

 

 

 

 

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With the advent of the Islamic Revolution of Iran in 1979, all laws of personal status that were enacted earlier, were suspended. The new legal system, including the Constitution, adopted Islamic Sharia according to the Shi’i Twelver Ja’fari School of jurisprudence. In addition, Special Civil Courts (dadgah-e madani-ye khass) were established to look into cases involving family matters, such as marriage, divorce, custody of children, and inheritance. Since the Islamic Revolution, many norms related to family law have been amended in response to changing circumstances.

The new evolving legal system in the Iranian family law has a major effect on U.S citizens with Iranian ancestry in the area of marriage, divorce, custody of their children and especially in the distribution of marital assets. Knowledge of all these laws lies within the framework of Private International Law of both the United States and Iran, sometimes called, conflict of laws.

Professor Sawma is a leading expert on the international matrimonial laws of the Middle East and Central Asia. His background as a lawyer with the Middle East will be of great asset to his clients.

Won A Landmark Case In New York

In a recent case, the client contacted me and sought my legal advice on  recognition of her foreign divorce obtained in Abu Dhabi including the mahr agreement. Accordingly, I wrote an affidavit to the Supreme Court of Westchester County, New York, seeking recognition of my client’s foreign divorce and her mahr contract valued at $250,000. The Supreme Court agreed with our opinion and handed down a judgment for recognition of the foreign divorce and awarded my client  the full amount.

You may read the judgment of the Supreme Court at the following link: https://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Appellate Division Affirms The Judgment

On January 20, 2016, the Appellate Division affirmed the judgment of the lower court and recognized the divorce decree obtained from Abu Dhabi, including the mahr agreement. The opinion of the Appellate Division reads:

Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law § 236(B)(3), was signed by the parties and two witnesses, as well as the Imam of the Islamic Cultural Center of New York. Under the circumstances presented, the Supreme Court properly recognized so much of the foreign judgment of divorce as incorporated the mahr agreement under the principles of comity, as no strong public policy of New York was violated thereby (see Greschler v Greschler, 51 NY2d 368; Rabbani v Rabbani, 178 AD2d 637). Accordingly, the court properly granted that branch of the plaintiff’s motion which was to enforce so much of the judgment of divorce as awarded the plaintiff the sum of $250,000 pursuant to the mahr agreement.”

The Opinion can be accessed at this link: http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2012-11549.html

Won A Landmark Case Involving Custody of Children

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

Mother’s expert, Professor Gabriel Sawma, testified that women in Saudi Arabia are considered “second class citizens”, and women of all ages are not permitted to do anything including, but not limited to, attending school, driving a vehicle, or seeking medical treatment, without their guardian’s permission. Every girl and woman must have a guardian under Saudi Arabia law. Professor Sawma further testified that under Saudi Arabian custody law, once a female child has obtained the age of 7, the father is automatically granted sole custody of the child, and under no circumstances would a mother be granted custody once a female child is over the age of 7. Additionally, Mother would require a “sponsor” to be permitted entry to Kingdom of Saudi Arabia. Because Mother would have no opportunity to gain custody of the Children in Saudi Arabia, and Father could refuse to sponsor her entry into Saudi Arabia, Father could potentially prevent Mother from seeing the Children again.”

The custody order of the Allegheny Court 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

As Expert Consultant, we offer the following services on:

  • International Law, including laws of the Middle East and Islamic Shari’a.
  • Abduction of children to Muslim majority countries, and fear of parental abduction.
  • Custody of children in Muslim majority countries.
  • Iranian divorce, custody, and mahriah in U.S. courts.
  • Abduction of children or fear of parental abduction to Iran.
  • Enforcement of mahr agreements in U.S. courts.
  • U.S. immigration cases dealing with Islamic divorces obtained overseas.
  • Islamic marriage, divorce, custody and abduction or fear of abduction to Muslim majority countries.

gabriel_sawma

Professor Gabriel Sawma is a lawyer with Middle East background, and a nationally recognized expert consultant on Islamic and Hindu marriage and divorce in USA and Canada, with over 40 years experience in International Law, mainly, recognition and enforcement of Islamic and Hindu divorces in USA. His expertise helped clients, attorneys and judges understand the nature of the mahr agreement in an Islamic marriage contract and its application in the United States and Canada.

Professor Sawma is also expert consultant on Islamic finance; he taught Islamic finance for the MBA program at the University of Liverpool in United Kingdom.

Lectured at the American Academy of Matrimonial Lawyers in New York.

For  information on the Iranian divorce in U.S. courts, please read our articles listed on the right column of this page or visit our website at: www.iraniandivorceinusa.com

For general information on Islamic divorce, you may visit our website at: www.muslimdivorceinusa.com

For information on Hindu divorce, including Sikhs, Buddhists, and Jains, please see: www.hindudivorceinuscourts.com

Our Curriculum Vitae is published on line at:  http://muslimdivorceinusa.com/professor-gabriel-sawma-curriculum-vitae/

All our articles on International Matrimonial Law can be accessed on this website: www.gabrielsawma.blogspot.com

 

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Islamic Shari’a in Theory and Practice

>Excerpts of the lecture on “Islamic Shari’a in Theory and Practice” presented to the College at Florham Library and PubliMind Poll of Fairleigh Dickinson University, April 5, 2010. The speaker was Professor Gabriel Sawma.. You may see the lecture in its entirety at the following link:
http://youtu.be/XUKcsCAiDbE

In 1979, the Soviet Union invaded Afghanistan for the purpose of establishing a communist regime in that country. The following ten years witnessed the death of close to one million people. As a result there were tens of thousands of children who have lost their parents.

The United States, being an adversary to the Soviet Union back then, along with Saudi Arabia, initiated an effort to establish schools for those children in Pakistan. The schools came to be known as “madrassa” an Arabic term, means ‘school’; the etymology of the word is Aramaic “D R SH“; Syriac “madrashto“. The students came to be known as “Taliban” from Arabic ‘talib’, meaning student.

You would think those “Taliban” will study math, physics, geometry, history, etc. None of that happened; instead they were taught how to memorize the Quran. In Islam, there is more emphasis on memorizing the text of the Quran than understanding its meaning. Understanding the meaning of the Quran in Arabic is not an easy task.

The Soviet Union Withdraws from Afghanistan
In 1989, the Soviet Union withdrew its forces. The “Taliban” returned to their country. Another civil war erupted. In 1994, the “Taliban” started their occupation of the the major cities. They commanded, under the leadership of Mulla Umar, that Islamic Shari’a should be the law of the land.

In 1996, the general presidency of Amr Bil Maruf, issued a series of ordinances. Among those are the following:

1- To prevent music.
2- To prevent beard shaving and its cutting. After one and a half months, if anyone observed who has shaved his beard, he will be put under arrest.
3- To prevent keeping pigeons and “playing with birds”.
4- To prevent kite-flying. The kite shops were order to close down.
5- To prevent idolatry by removing any picture displayed. Displaying pictures under the Taliban was prohibited.
6- To prevent gambling.
7- To prevent “the British and American hairstyles.”
8- To prevent the “riba” (i.e. interest rate on loans.)
9- To prevent “washing cloth by young ladies along the water streams in the city. Violators ladies should be picked up with respectful Islamic manner, taken to their houses and their husbands severely punished.”
10- To prevent music and dances in wedding parties. “In the case of violation the head of the family will be arrested and punished.”
11- To prevent “sewing ladies cloth and taking female body measures by tailor. If women or fashion magazines are seen in the shop, the tailor should be imprisoned.”
12- To prevent sorcery. All the related books “should be burnt and the magician should be imprisoned until his repentance.”

The Taliban issued further rules regarding work in the hospitals and clinics. This includes:
1- Female physicians can see female patients. In case a male physician is needed, the female patient should be accompanied by her close relative.
2- Male physicians can check the “affected part of her body” only.
3- Waiting room for female patients should be “safely covered”.
4- At night, male doctors are not allowed to visit female patients, unless the patients request that.
5- Male physicians are not allowed to communicate with female physicians without a “hijab.”
6- Female doctors should wear simple clothes; they are not allowed to wear stylish clothes or use cosmetics or make-up.
7- Female physicians and nurses are not allowed to enter the rooms where male patients are hospitalized.
8- Hospital staff should pray in mosques on time.

All of these rules and regulations were instituted in the name of Islamic Shari’a.

Today, there are several countries whose laws are bound by Islamic Shari’a; they are: Pakistan, Iran, Saudi Arabia and Sudan. In recent years, Nigeria and Somalia started implementing Islamic Shari’a as well.

What is Islamic Shari’a?
Shari’a is defined by Muslim scholars as “the way” Muslims should live by. It is a “path” like “shiraa'” (i.e. sailing ship.) It is derived from the sacred texts of Islam: The Quran and the Sunnah.

1- The Quran, which is composed of the Revelations descended on the Prophet of Islam begining in 610 AD until his death in 632AD.

2- The Sunnah, which includes the saying and deeds attributed to the Prophet of Islam.

In Sunni Islam, there are 4 Schools of jurisprudence, they are: Hanbali (precursor of the Wahabi), Hanafi, Shafii, and Maliki.

I- The Quran
The etymology of the term is Eastern Syriac “Qiryana“, or Western Syriac “Qiryono” meaning “a reading”, or “call”. The Syriac Orthodox Church still uses the term “qiryono” in its liturgy.

The Quran contains the revelations, which descended on the Prophet of Islam, when he was 40 years old. The revelations descended from Allah (God) through the angel Gabriel (Arabic Jibreel.)

The Quran states that the Prophet of Islam was “ummi” (unlettered.)The final compilation of the Quran occurred under the auspices of the 3rd. caliph, Uthman. This compilation is known as “Musshaf Uthman.”

Muslim scholars believe that the Quran is miraculous because it was revealed to the Prophet who is called “ummi”. The text consists of 114 chapters, each known as “sura”. Some of its chapters were revealed in Mecca, others in Medina. Each “sura” or chapter is formed from several “ayat” (i.e. verses). The number of verses differs from one chapter to another. The script of the modern text differs from the earlier Kufi and Ma’eel scripts, which did not contain the diacriticals or the vowel signs.

The Quran calls for warship of Allah alone, with no partner and no companion and no son. This runs contrary to the Christian belief in the Holy Trinity.

The Quran claims that Christians and Jews have corrupted the texts of the New Testament and the Old Testament without offering evidence to that effect.

The Quran states that those who reject its teachings, will face torment for their disbelief.

It lays down the commands that every Muslim must abide by. It sets obligations on the believers for what to do and what not to do.

The Quran commands the believers to believe in “The Day of Judgment.” It also talks about the tales of previous nations.

It talks about the dress code for women and contains penalties (hudud) for violation of certain norms such as adultery and theft.

It describes the life in Paradise and Hell and sets out conditions for the marriage contracts and divorce.

It prohibits interest rate on loans “riba” and regulates commerce and trade among people.

It abolishes certain trends that were current in the Prophet’s environment in Arabia, such as the burying of infant girls alive.

It abolishes the worship of deities. The worship should be to Allah alone.

It gives specific details on inheritance share among Muslims.

The Quran is considered to be the first source of the Islamic Shari’a. Every single verse constitutes the supreme authority and commandment.

Shi’a Islam

Shi’a Islam on the other hand believe in the Quran and the teachings of the Prophet of Islam and his family, and sometimes, it is referred to as the “School of Ahlul Bayt” (the family of the Prophet, or “Shi’a Ali”. They spread into several branches, prominent among them are:

1- The Twelvers; they believe in the lineage of the Twelve Imams. They believe that the descendants of Muhammad through his daughter Fatima Zahra and his son-in-law Ali are the best source of knowledge about the Quran and Islam. The Twelvers recognize the succession of Ali, Muhammad’s cousin and son-in-law and the first man to accept Islam (second only to Muhammad’s wife, Khadija), the male head of the Ahlul Bayt as opposed that of the caliphate recognized by Sunni Muslims. The Twelvers believe that Ali was appointed successor by Muhammad’s direct order on many occasions, and that he is therefore the rightful leader of the Muslim faith. The Twelvers constitute 85% of the Shi’a population. They are mainly in Iran and Lebanon.

2- Zaidi, mainly found in Yemen.

3- Isma’ili, they are found in Kufah (Iraq), Afghanistan, Pakistan, Uzbekistan, India, Yemen, China and Saudi Arabia.

II- The Sunnah
The Sunnah constitutes the sayings and practices attributed to the Prophet of Islam. Those sayings and deeds are recorded in the volumes of Hadith literature. It includes everything the Prophet of Islam said, did, or agreed to.

During his ministry, the Prophet of Islam, his family and companions observed him and shared with others what they had seen in his words, deeds and behaviors. People asked him directly for rulings on various matters, and he would pronounce his judgment.
His sayings and deeds were passed on and recorded in the Hadith literature, which is called the Sunnah. It constitutes the second sacred source of the Islamic Shari’a.

III- Non-Sacred Sources, the Ijma’
Ijma’ is defined as the consensus among Muslim jurists on a particular legal issue. This constitutes the third non-sacred source of the Islamic Shari’a. It has been considered a third source because the Prophet of Islam says in the Sunnah: “My followers will never agree upon an error or what is wrong.”

Sunni jurists consider ijma’ as a source, in matters of legislation, as important as the Quran and Sunnah. While Shi’a jurists, consider ijma’ as source of secondary importance, and a source that is not free from error.


Who is Eligible to Participate in Ijma’ in Sunni Islam?

Hanafi: public agreements of Islamic jurists; Shafii: the agreement of the entire community and public at large; Maliki: the agreement among the residents of Medinat Rassul Allah (i.e. Medina); Hanbali: agreement and practice of Muhammad’s Companions.

IV- Qiyass
This is defined as the analogical deduction. It is the fourth source of Islamic Shari’a in Sunni Islam.

Shi’a jurisprudence do not accept the qiyass; they replace it with reasoning “aql” or “ijtihad.”

When a jurist is confronted with an unprecedented case, he bases his argument on the logic used in the Quran and Sunnah. Jurist’s ruling is not based on arbitrary judgment, but rather the primary sources of the first two elements. Supporters of this 4th element often point to passages in the Quran that describe an application of a similar process by past Islamic communities. In one Hadith, the Prophet is reported as saying: “Where there is no revealed injunction, I will judge amongst you according to reason.”

The qiyass is sanctioned by the ijma’, or consensus, and among the companions of the Prophet of Islam. But Sunni Schools of jurisprudence differ on the importance attached to the qiyass. They express the following opinions: the Hanafi school of thought supports qiyass very strongly; the Shafii accepts qiyass as a valid but weak source of Islamic Shari’a; the Maliki accepts qiyass as a valid source of legislation and added “public good” to the determination.

V- ‘Urf
Referred to as the customs and practices of a given society. ‘Urf is not recognized officially as source of Islamic Shari’a.

Customs that were prevailed during the time of the Prophet of Islam were recognized as source of Islamic Shari’a, provided that Islam did not abrogate those traditions.

‘Urf holds as much authority as ijma’ (consensus) and more than qiyass as long as it does not violate provisions from the Quran or the Sunnah.

Application of the ‘urf is recognized in the Sunni jurisprudence if the tradition under consideration commonly prevails in the region in which it is implemented. Traditions of foreign jurisdictions can not be accepted as ‘urf in aother jurisdictions.

If the ‘urf contradicts Islamic divine texts, the customs are considered illegal and should be disregarded. If ‘urf contradicts a qiyass (analogical deduction), then it is given a preference and must supersede the qiyass.

Shi’a do not consider ‘urf as source of jurisprudence.

Gabriel Sawma, adjunct Professor at Fairleigh Dickinson University, admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Author of “The Qur’an: Misinterpreted, Mistranslated, and Misread. The Aramaic Language of the Qur’an.” Expert Consultant on Islamic Shari’a in US Courts in matters related to Islamic divorce, Islamic banking and finance.

Email: [email protected] ; Tel. (609) 915-2237

>The Jihaz in Islamic marriages

>Jihaz (dowry) or trousseau is the amount of clothes, household linen, furniture and other belongings contributed by the bride and/or her family to the marriage. It has to be distinguished from the mahr, which is an agreement between the wali (guardian) of the bride and her future husband by which the groom pays certain sum of money or its equivalent to the bride at the signing of the marriage agreement. The mahr is an obligation on the groom, stipulated by the Quran, to be given to the future wife, while the jihaz is not an obligation on the part of the bride or her family. (For more information on the mahr agreement, see our article on http://www.gabrielsawma.blogspot.com.

The Jihaz is not nafaqa (support) either, because nafaqa is the material support given by the husband to his wife as soon as the marriage is consummated. The nafaqa covers clothing, food and shelter for the wife. (For more on the nafaqa, see our article on http://www.gabrielsawma.blogspot.com

In the Middle East, as elsewhere, the brides are often given house furnishings and clothing by their parents or family members when embarking on marriage. There is no obligation in the Islamic Shari’a to fulfill the jihaz, however, in most cases, brides bring such jihaz to their houses once they are married.

Consequently, the groom cannot force his future wife to bring the jihaz as part of the household, and if her family is asked to contribute such jihaz, they may decline the demand.

Once the jihaz is given to the bride, it becomes her own property. Her family cannot claim it as part of their estate unless the jihaz was given as a loan agreement. Under such circumstances, they may demand the return of the jihaz.

The groom cannot have claim on the jihaz, unless it was purchased by the bride or her family, with monies given by the groom as part of the mahr agreement, where the jihaz becomes a mahr and therefore belongs to the groom.

The bride’s father may have a legal agreement with his daughter stating that certain pieces of the jihaz she took with her upon marriage were in fact a loan, and therefore revert to her family upon death. Otherwise the jihaz is considered a private property of the bride and becomes part of her estate.

The jihaz contributed by the bride and /or her family endorses the idea that she enters into marriage as an empowered individual. The marriage arrangements in the Middle East involving jihaz, predate the rise of Islam.

There is no provision in Islamic Shari’a that forbids the exercise of women’s right to contribute jihaz to their marriages. In fact, under Islamic law, married women have legal rights to share in family estate. They may own properties, or be named as beneficiaries of religious waqf (endowment) assets.

Gabriel Sawma is a lawyer with Middle East background, professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. Expert Consultant in matters related to recognition and enforcement of Islamic divorce, child custody, banking and finance in US courts. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor in chief:

http://www.gabrielsawma.blogspot.com
Email: [email protected]

Email: [email protected]

Tel. (609) 915-2237

 

>The Mahr Provision in Islamic Marriage Contracts

>In recent years, many Islamic divorce cases were litigated in the United States family courts. The issue of mahr in the Islamic marriage contracts became subject of debate among lawyers and scholars. This article sheds lights on the Islamic mahr in USA.

Mahr is the amount of money, or its equivalent, paid by the husband to his future wife. Contrary to the popular notion that mahr is dowry, it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future wife. Others call the mahr a ‘gift’ given by the husband; it is not a ‘gift’ either, because it is an obligation mandated by the Qur’an. The Qur’an calls it sadaq; it reads: “Wa aatoo ann-nissaa’ saduqaatihinna nihlatan” (and give the women their mahr with a good heart.) Qur’an 4: 4
The mahr is an obligation required by Islamic law from the husband to be paid to his future wife. Thus, it must be stipulated in the Islamic marriage contract. If no stipulation is recorded in the contract, the qadi (or religious judge) will assign the amount of mahr. The amount of mahr becomes a property of the wife alone.
Muslim schools of jurisprudence in the Sunni traditions, differ on the definition of the mahr. The Hanafi School defines mahr as “the added money given by the husband to his [future] wife for iza’a ihtibassiha, keep her in his house (see al-Sarkassi, the Mabssut, vol. 5, pp 62-63, Arabic Version). Another author of the Hanafi School defines the mahr as “the money, which is obligatory on the husband in ikd al-nikah (the marriage contract) for manafi’ al-bid’ (sexual pleasure). (See ibn al-Hamam, Sharih Fath al-Qadeer, vol. 3, p. 304, Arabic version).
The Hanbali School of jurisprudence defines mahr as “the money paid by the husband for the purpose of nikah (marriage). (See ibn Kadamah, Al-Mughni, vol. 6, p. 679, Arabic version).
The Malike and Shafi’i Schools defines the mahr as “the money due to the future wife in return for [the husband’s] haqq al-isstimta’ (sexual pleasure) in the marriage contract”. (See al-Hattab Muhammad bin Abdel Rahman al-Mughrabi, Mawahib al-Jalil li-Sharh Mukhtassar Khalil, vol. 5, p. 172-Maliki Jurisprudence). For Shafi’i School see al-Nawawi, Kitab al-Majmu’, vol. 18 p. 605). All these references are cited by Sheikh Mahmud Muhammad al-Sheikh, Al-Mahr fi Al-Islam bayna al-madi wal-hadir, published by al-Maktaba al-Assriyya liltibaa’a wal nashr, Beirut, Lebanon, 2003, Arabic version.
The Maliki and Shafi’i Schools of jurisprudence regard the mahr as “the money paid for the future wife in return for sexual pleasure is an integral part of the Islamic marriage contract and its source is prescribed in the Qur’an. Sura al-Nissaa reads the following:
“Fa ma isstamta’tum bihi minhunn fa aatoohunna ujoorahunna” (So for that pleasure which you have enjoyed from them, give them their prescribed compensation). Qur’an 4: 25
Numerous Hadith (sayings attributed to the Prophet of Islam) provisions refer to the obligatory nature of the mahr in Islamic marriage contracts. (See for example Ans bin Malik bin Damdam; Al-Bukhari, Sa’ad bin al-Rabi’ bin Khazraj. They are all cited by Al-Sheikh Mahmud Muhammad al-Sheik, Al-mahr.)
Traditionally, Islamic marriage contracts lists two types of mahr; one is called muqaddam (upfront, or immediate at the signing of the contract), or mu’akhar (deferred to be paid in the event of divorce or death of the husband.)

The Amount of Mahr
Neither the Qur’an, nor the Hadith stipulates the maximum amount of mahr to be paid by the husband. As to the lower amount of mahr, Islamic scholars differed on this. The Hanafi School regarded the lower amount to be not less than ten Dirahms (around ten US Dollars). The Maliki School considers the lower mahr to be not less than three Dirhams (or three US Dollars.)
The Hanbali and Shafi’i Schools do not put a limit to the lower amount of mahr; both schools agree that the lower amount could be “a ring made out of iron” or “pair of shoes”, or a few ounces of “wheat, or dates”, or “teaching the future wife verses from the Qur’an”. In all of these, the future wife has to express her acceptance to whatever the amount is.
Modern Islamic marriage contracts are pre-printed forms, filled by the ‘imam/qadi’ (religious leader or religious judge). The form has empty space to fill the name and address of the husband and the name and address of the bride. The contract must include the names and addresses of two adult male witnesses. And the place and address where the marriage contract is signed
Both parties to the marriage contract must express their consent to the marriage, verbally and in writing. This is done through a formal proposal of ijab (an offer to marry) and qubul (an acceptance to marry), in the presence of a wali, a male guardian who looks out for the best interest of the bride. It must include the amount of muqaddam/mu’ajjal mahr, and the amount of the mu’akhar (deferred).
After the contract is signed, the couple is recognized as legally married and enjoy the rights and obligations stipulated by the Islamic Shari’a (law). The marriage contract may be solemnized in a mosque and usually signed in triplicate: one copy should be given to the bride, one to the bridegroom, and the third must remain deposited with the Registrar, imam/qadi (religious leader or religious judge).

The Absence of Mahr Provision in the Marriage Contract
If the marriage does not include a provision for the mahr, the contract is considered to be legal. The three Schools of jurisprudence: Hanafi, Shafi’i and Hanbali recognize the fact that the mahr provision is not a main factor, nor a condition for the marriage. These three Schools believe that the mahr is an obligation on the husband regardless of whether it is written in the marriage contract or not (see Mahmud Muhammad al-Sheikh, al-Mahr, published by al-Maktabah al-Assriyya, Beirut, 2003, Arabic version). Accordingly, if the marriage contract is signed by the parties without a provision of the mahr, or if they assign a mahr, which is considered to be illegal under Islamic Shari’a, or if the parties agree not to include a mahr provision, in all these cases the conditions are null, the contract is legal and the husband has to pay a mahr equivalent to a mahr given to another women of the same status as that of his wife.
The Maliki School rejected this interpretation and considered the mahr provision in the contract, necessary. However, this School regards such a marriage to be legal if it was consummated. If the marriage was not consummated, then the marriage is mafsookh (a reason for separation); if he divorces his wife without any agreement on the mahr issue, then he has to pay her mut’ah (money paid to her in return for the sexual pleasure he had with her). But if he dies before any agreement reached between the couple, then the wife is entitled to inherit her share from his estate.
Finally, the mahr must be legal. Thus, alcoholic beverages and the meat of the swine or pig cannot be given to the future wife as mahr because, under Islamic law, it is unlawful to transact these items. If such illegal items were listed in the marriage contract, the imam/qadi may substitute those by legal items.

Should there be any questions regarding this topic or any topic that deals with Islamic Shari’a in the United States or in Europe, please email the author at [email protected] or [email protected]

Gabriel Sawma is a Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic. He is an expert consultant on International Law, mainly Islamic divorce, inheritance, child custody, banking and finance. Admitted to the Lebanese Bar Association ; Associate Member of the New York State Bar Association and the American Bar Association. Editor of International Law Website: http://www.gabrielsawma.blogspot.com and author of the Aramaic language of the Qur’an: http://www.syriacaramaicquran.com. Email: [email protected]
Email: [email protected]

>Indian Divorce in U.S. Courts

>


Many Indian nationals had their marriage in India and domicile in the United States. They travel back to India for the purpose of obtaining divorce certificates. The issue of jurisdiction becomes important factor for the recognition of their foreign divorce judgments in the United States. This article analyzes this issue.

In most circumstances, a judgment of divorce of a foreign national court has no independent force outside the forum’s territory. Thus courts will enforce their own judgments within their own national boundary.

As a general rule, a judgment of a court of one nation may be recognized and enforced in another nation if the courts of that nation are willing to accept the decree of the nation where the judgment was issued.

Recognition and enforcement of foreign judgments occur when a U.S. court relies upon foreign divorce ruling, on the ground that it has been previously litigated abroad. Thus recognition of foreign divorce judgments is akin to the domestic U.S. doctrines of res judicat (or claim preclusion, prevents parties of a claim from re-litigating the same claim), and collateral estoppel (or preclusion which extends the preclusive effort of a judgment to re-litigation of issues that were decided in a prior action.) The enforcement of foreign divorce judgment is typically sought by a plaintiff who has obtained a judgment in a foreign country.

In the United States, the judgments of one state’s court are routinely enforced in another state. Article IV, Sec. 1 of the U.S. Constitution requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other state.” Congress has implemented the full faith and credit clause by statutory enactment providing that judicial proceedings “shall have the same full faith and credit in every court within the United States…as they have by law or usage in the courts of such State…from which they are taken.” (28 U.S.C. Sec. 1738. 1982).

The Doctrine of Comity

Presently, in the United States, there is no federal standard governing the enforcement of divorce judgments rendered by foreign courts. Unlike state judgments, foreign judgments are not covered by the full faith and credit clause of the U.S. Constitution and other statutes. Nor are there any federal statutes to enforce foreign divorce judgments in U.S. courts. The United States is not party to any international agreement regarding the mutual recognition of divorce judgments.

With the absence of a treaty or statute upon this subject, the duty rests upon the judicial tribunals to determine the rights of the parties in divorce suits brought before them. In doing this, the courts obtain such aid for their judicial decision, from the works of jurists, commentators and academic scholars, and from the acts of civilized nations. Thus U.S. courts may give recognition to the judgments of a foreign nation as a matter of “comity.”

The “doctrine of comity,” in the legal sense, is not an absolute obligation; it is a courtesy, where the court may recognize a foreign court order, but is not compelled to do so. This extension or denial of comity is discretionary to the U.S. court

Indian nationals domiciled in the United States, initiate divorce in India. Many of them have dual US-Indian nationalities. They travel to India for the sole purpose of obtaining divorce judgments from Indian courts. Then they travel back to the United States and serve the other spouses with divorce papers. Do the U.S. courts extend comity and recognize the enforceability of those divorce judgments? Or do the U.S. courts assert their own jurisdiction on the divorce cases? The key concepts in this “conflict of law” in the United States are two: subject matter jurisdiction (or competence), and personal jurisdiction.

For a foreign court to have authority to adjudicate a dispute involving divorce, it must have jurisdiction over divorce issues. A divorce can be granted only in a court designated to hear matrimonial cases. It is well settled that U.S. courts will not enforce foreign judgments unless foreign courts possessed “competence” or subject matter jurisdiction under foreign law. Consequently, lack of subject matter jurisdiction is a basis for non-recognition.

Personal jurisdiction, known also as “personam” is the power of a court “to hear and determine a lawsuit involving a defendant by virtue of the defendant having some contact with the place where the court is located.” (See http://legal-dictionary.thefreedictionay.com/Personal-Jurisdiction). Personal jurisdiction is a basic pre-requisite for the enforcement of a foreign judgment. The foreign court issuing the judgment must possess personal jurisdiction and authority over persons within its territory. This includes: domiciliary, citizenship, place of marriage, etc.

U.S. courts generally, are able to decide divorce cases based on at least one of the spouses being domiciled or maintaining a habitual residence within the geographic jurisdiction of the court. Domicile is defined as physical presence and an intention to live permanently in a location. Such intentions are determined by where a person is registered to vote, filing state tax return, state issued driving license, which school the children go to, does he or she join a gym in the area of residence and where the home is located, etc.

Divorce cases involving multinational jurisdictions are complex. Foreign divorces may involve immigration matters, child custody, division of marital assets and support orders, which have their own specialized enforcement issues. In most cases attorneys and litigants consult with experts in foreign laws before determination.

Gabriel Sawma is Professor of Middle Constitutional Law, Islamic Shari’a, and Arabic. He is considered an authority on Private International Law involving foreign divorce issues, Islamic banking and finance. Admitted to the Lebanese Bar Association in 1970; Associate Member of the New York State Bar and American Bar Associations. Editor of International Law Website: http://www.gabrielsawma.blogspot.com

Email: [email protected]

>Islamic Divorce in U.S. Courts

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Islamic Divorce Obtained in a Foreign Country

U.S. Courts do not apply Islamic Shari’a law because it violates the Establishment Clause set in the United States Constitution; American Courts do apply foreign law in certain cases involving international principle known as “conflict of Laws,” or “Private International Law.” This is referred to in U.S. courts as the doctrine of comity“.

In the area of Private International Law, Comity is a courtesy, amity, and reciprocity by U.S. courts towards court decision issued in other nations. Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law, however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a certificate of divorce from a religious court.

The intent is to obtain an instant divorce by pronouncing triple talaq (divorcing his wife three times in a few minutes.) Such an action leaves the wife with nothing more than a nominal deferred mahr, and takes advantage of the child custody, which discriminates against the women and to label the wife as bad Muslim.

The man then returns to the United States and serves his wife with divorce papers demanding the implementation of the divorce according to the Islamic Shari’a, claiming that the “doctrine of comity” applies to his case.

American courts do not apply Islamic laws because it violates the Establishment Clause of the United States Constitution; they apply foreign law at their discretion. To determine whether to apply a foreign law, U.S. courts turn to Private International Law, including the “doctrine of comity.” Thus the application of the principle of comity is not mandatory, but is rather a matter of custom. They may deny the application of comity if the judges deem the foreign laws is “repugnant” to U.S. principle of law.

Generally, a judgment of divorce for example issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce received adequate notice, i.e. service of process and, generally, provided 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 litigants, 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, an no prejudice towards either party and should not violate a strong U.S. principle of law, and the parties were present in court.

An Islamic triple talaq differs substantially with respect to property division. Under Islamic Shari’a, wives may be entitled to a deferred mahr, which is, in most cases, much less than what U.S. courts order; above all, U.S. courts will not accept an Islamic divorce certificate obtained in a foreign country if the cause of action on which the divorce is based is “repugnant” to the public policy of the State in which the case is litigated.

Gabriel Sawma is Professor of Middle East Constitutional Law and Islamic Shari’a. He is an expert on Islamic marriage contracts and Islamic divorce. Editor of an International Law website: http://www.gabrielsawma.blogspot.com. Author of “The Qur’an: Misinterpreted, Mistranslated and Misread. The Aramaic Language of the Qur’an.” http://www.syriacaramaicquran.com. Author of an upcoming book on Islamic Divorce in US Courts. Email: [email protected]; [email protected]; tel. (609) 915-2237.