I Divorce You

April 07, 2011

I Divorce You

Divorce, sadly, is not an all too uncommon experience in America. This is even true among the many immigrants or foreign residents of this country; those immigrants and foreign residents of our country also bring with them their cultural customs and religious practices. Many of the customs and practices also concern divorce, which, at times, conflict with the American legal system's notion of divorce.

Particularly, this is true amongst many immigrants or visitors who hail from countries that abide by Islamic laws (Sharia) and customs. At times, Sharia, which is a religiously-based legal system, conflicts with the American legal system, which is secular. The laws governing divorce are often an example of this tension between Sharia and the American legal system.

While the notion of marriage in American society is quite religious in nature, at least ceremonially, the underlying contractual aspect of marriage is secular. Thus, divorce in America is also secular, requiring the assistance and/or approval of the courts to finalize a divorce.

Two aspects of Islamic marriage and divorce that differ from the American system are the mahr and the talaq.

Mahr

An integral part of an Islamic marriage contract, a mahr is a gift from the husband to the wife. Most commonly this gift is money, but can also be property, possessions, or, in some cases, service to be performed -- such as teaching the faith or providing labor for a specified time. The mahr, once given, becomes the solely the wife's property, and with this ownership comes the admission that the wife is independent.

The price of the mahr is actually not set, but is supposed to be given according to the husband's means. So, the mahr can be a nominal amount or range into the millions of dollars.

Richard Freeland, in an article for the Gonzaga Journal of International Law, notes that "U.S. courts treat mahr as part of an ante-nuptial agreement." This means that the mahr must meet the requirements for an ante-nuptial agreement in order to be enforceable in the U.S. Generally, an ante-nuptial agreement must be entered into voluntarily by both the husband and wife, plus, it is generally required that there is a full disclosure of finances by both parties. In addition, each jurisdiction may have its own specific requirements for ante-nuptial agreements. If all requirements are met, the court may declare a mahr enforceable.

Talaq

Under Islamic law, a man can divorce his wife by pronouncing the talaq -- often called the triple talaq -- three times. After the talaq is said, the husband and wife are divorced, whether he actually intends to divorce his wife or not. For centuries, the talaq has been used by husbands to divorce their wives in Islamic countries.

The talaq is a quick divorce that essentially labels the wife a "bad Muslim," and allows the husband to benefit from the Islamic child custody laws that discriminate against the woman. Another aspect of the talaq is that, unlike in the United States, the woman is not able to seek alimony/spousal support, but is rather given a nominal payment or deferred mahr. In essence, a rich husband could divorce his wife and virtually give her none of the marital estate.

Traditionally under Islamic law, only the husband is able to invoke the talaq, not the wife -- unless the husband has granted her permission to do so.

Why Not Enforceable in America?

American courts have the discretion to grant comity to the judicial decisions of other countries, but this is not an obligation. Comity is a recognition of or courtesy for the decisions of these foreign courts.

As noted by Professor Gabriel Sawma, comity often arises in Islamic divorce cases when a Muslim man who resides in the U.S. returns to his home country to receive a divorce under Islamic law and then seeks to have that divorce enforced in the U.S.

However, American courts, in not granting comity, refuse to enforce Islamic divorces given under Sharia, as they violate the Establishment Clause of the First Amendment -- which forbids the government from establishing a national religion or unfairly favoring one religion over another.

Additionally, courts are allowed to refuse to recognize the divorce from another country if the foreign law is "repugnant" -- doesn't conform with U.S. notions of fairness to both parties or violates public policy.

In one recent case, a Maryland court held that the talaq was contrary to the state's constitutional provisions providing women and men with equal rights. Further, the court held that the talaq violated public policy because it didn't afford the wife in the case due process of law.

How American courts handle and recognize foreign divorce or family law decrees can be extremely complicated. It is important to seek out the legal guidance of an experienced attorney, well versed in international family law.

Article provided by Schwartz & Associates LLC
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