Recognition and Enforcement of Mahr Agreements in New York

By

Prof. Gabriel Sawma

 

In 2012, a client called me seeking expert opinion on recognition of a divorce decree issued by the highest court in Abu Dhabi. The decree granted divorce, mahr, and child custody to the wife. The case can be summarized as follows:

The couple are US citizens of Egyptian background. They lived in New York until 2006, where their two children were born. They moved to Abu Dhabi, UAE, where the husband had gotten a job.

The marital relationship soured and the husband attacked his wife, inflicting “severe bruises and a fractured skull.” As a result, the husband was convicted of assault in Abu Dhabi, on the grounds that he had crosses his legal limits to discipline his wife according to the UAR court. The husband “never denied using physical force against the plaintiff, but defended the charges claiming he had the right to use physical means to discipline his wife and that her injuries were not as severe as she claimed.”

The husband’s assault formed the grounds for the wife to seek divorce in Abu Dhabi. The court granted her the divorce, awarded her the mahr of $250,000, ordered the husband to pay child support and some amount of spousal support, and gave the wife custody of the children.

The court proceedings in Abu went through three tiers of judiciary: The Court of the First Instance, the Court of Appeal and the Court of Cassation, which is the highest court in the UAE.

Following the decision of the Court of Cassation, the husband returned to the United States without notifying the plaintiff, and brought with him the passports of the children without the knowledge of the wife. It took the wife several months to get temporary passports from the US Embassy to return to the United States.

Once in New York, the ex-wife initiated divorce proceedings at the Supreme Court of Westchester County seeking recognition and enforcement of the decree obtained from the UAE. This author submitted an affidavit to the Supreme Court on behalf of the wife and was cited by both the Supreme Court and the Appellate Division, Second Judicial Department. The court order is available at this link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Supreme Court recognized the UAE divorce in the following terms: “The general principle of aw is that a divorce decree obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York…Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States…Loosely, [comity] means courtesy, respect, or mutual accommodations; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which is won’t.”

 

The Court Recognizes the Mahr Agreement in the Abdu Dhabi Judgment of Divorce

Mahr is the amount of money or goods that the groom pays his future wife in anticipation of marriage. It is part of the marriage contract; it can be paid at the marriage ceremony (prompt) or in the event of divorce, or death of the husband (deferred). Mahr is considered to be the wife’s sole property and may not be taken over by the husband, nor by her father or other relatives. In the case at hand, the husband promised to pay his wife, in the event of divorce, an amount of $250,00 as her mahr .

The Supreme Court of Westchester County recognized the divorce decree and all its contents, including the mahr agreement of $250,000. The court agreed that the mahr agreement was “executed as part of a religious ceremony two months after the parties’ civil marriage on July 19, 1998.” The court reasoned that: “In seeking recognition, entry, and enforcement of the Abu Dhabi judgment in the amount of $250,000 pursuant to the Mahr agreement, the plaintiff is not seeking any new relief against the defendant, but rather, she is asking this Court to perform the ministerial function of recognizing the foreign country’s judgment and converting it into a New York judgment… “New York has traditionally been a generous forum in which to enforce judgments for money damages rendered by foreign courts, ‘and in accordance with that tradition, the State adopted the Uniform Foreign Country Money-Judgments Recognition Act as CPLR article 53. . . . Article 53 applies to any foreign country judgment which is final, conclusive and enforceable where rendered’. . . and a foreign country judgment is considered conclusive between the parties to the extent that it grants or denies recovery of a sum of money” . . .Unless a ground for non-recognition exists under CPLR section 5302, a foreign money judgment is to be recognized under the doctrine of comity. “[T]he inquiry turns on whether exercise of jurisdiction by the foreign court comports with New York’s concept of personal jurisdiction, and if so, whether that foreign jurisdiction shares our notions of procedure and due process of law. If the above criteria are met, and enforcement of the foreign judgment is not otherwise repugnant to our notion of fairness, the foreign judgment should be enforced in New York under will-settled comity principles without microscopic analysis of the underlying proceeding” . . . Moreover, it is not required that the “foreign tribunal’s procedures exactly match those of New York. Rather, [CPLR sec. 5304 (a)(1) is satisfied if the foreign court’s procedures are compatible with the requirements of due process of law” . . .

 

The Mahr Agreement Can Be Enforced in Civil Courts Pursuant to Neutral Principles of Law

As long as enforcement does not violate either the law or the public policy of the state, an agreement predicated upon religious and customs is enforceable in a civil court. The Supreme Courts stated that: “The First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,” a State may adopt any approach to settling these disputes, “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith” (Jones v. Wolf, 443 US 595, 602 [1979]; Avitzure v. Avitzur, 58 NY2d at 114). Use of the “neutral principles of law” approach, which “contemplates the application of objective, well-established principles of secular law to the dispute,” has been found to be “consistent with constitutional limitations.” This approach permits “judicial involvement to the extent that it can be accomplished in purely secular terms.”

In its final analysis, the court agreed with our argument that a “mahr agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a free exercise’ of religious beliefs, no matter how diverse they may be.” A mahr agreement will survive constitutional challenges and can be enforceable as a contractual obligation.

 

The Appellate Division, Second Judicial Department Affirms

On January 20, 2016, the Appellate Division, Second Department affirmed the decision of the trial court. In its opinion, the Appellate Court stated: “Here, the mahr agreement, although not acknowledged in accordance with Domestic Relations Law Sec. 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 as to enforce so much of the judgment of divorce as awarded the plaintiff the sum of $250,000 pursuant to the mahr agreement.” (See the Affirmation Order of the Appellate Division at this link: http://law.justia.com/cases/new-york/appellate-division-second-department/2016/2012-11549.html

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor: Middle East Studies at Fairleigh Dickinson University.
  • Lawyer with Middle East Background; Graduated from the Lebanese University, school of law.
  • Admitted to the Lebanese Bar Association of Beirut.
  • Practiced law in Beirut.
  • Nominated to be a judge in Lebanon, Lebanese Judicial Studies.
  • Supervised contracts in Europe and the Middle East.
  • Travelled 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

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

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 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 court order is not published yet, but I have a copy at request. Once published, I will post the link online. 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 American children to Saudi Arabia
  • Abduction of American Children to Jordan
  • Abduction of American Children to Iran
  • Recognition and Enforcement of Mahr agreements in New York

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,and Syriac

 

 

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:

 Gabriel M. Sawma

 Tel. (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

 

Websites:

http://www.islamicdivorceinamerica.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

 

Abduction of American Children to Iran

By

Professor Gabriel Sawma

 

The United States severed diplomatic and consular relations with the Government of Iran on April 7, 1980 as a result of the events surrounding the seizure of our Embassy in Tehran, Iran on November 4, 1979. In April of 1980, the United States Government formally asked the Swiss Government if it would assume diplomatic and consular representation of the United States in Iran. The Swiss agreed to perform specific consular and administrative functions o behalf of the U.S. Government.

One of the major problems facing the U.S. is parental kidnapping of American children to Iran. Iran is not signatory to The Hague Convention on Child Abduction, and the Iranian government has placed strict limits on the ability of Swiss diplomats to intervene in cases involving parental kidnaping of American children to Iran. The Iranian government placed restrictions because they do not recognize the concept of dual nationality and therefore, when one parent is an Iranian citizen, consider the children involved to be Iranian citizens only. Consequently, removing kidnaped children from Iran would be considered kidnapping under Iranian law.

 

Fear of Potential Abduction

In many instances, the wife fears that the Iranian husband may kidnap the children to Iran without her knowledge. One of the first steps is to notify the Department of State’s Office of Legal Assistance and Citizenship Appeals at (202) 326-6178. The Office can block the issuance of a U.S. passport in the child’s name upon submission of a court order giving the wife sole custody or prohibiting the child’s departure from the U.S. without permission of the court. That office can also tell whether the spouse has already applied for and obtained a passport for the child. However, if a passport has already been issued for the child, that office cannot revoke the passport or prevent its use. For more information, see this ink: http://www.passportsusa.com/family/abduction/country/country_498.html (accessed June 3, 2016).

 

Iran Does Not Recognize Dual Citizenship

A child born of an Iranian father is considered Iranian citizen according to Iranian law, and could travel abroad with Iranian passport without the consent of the mother. The U.S. State Department can do nothing to prevent the issuance of an Iranian passport by the Iranian Interests Section of the Embassy of Pakistan. The address and telephone number of the Iranian Interest Section of the Embassy of Pakistan, Tel. (202) 965-4990. See this link: http://www.daftar.org/Eng/default.asp?lang=eng  (accessed June 3, 2016).

American Women Marrying Iranian Men Need Permission to Leave Iran

American women who marry Iranian nationals, gain Iranian nationality. The woman’s U.S. passport will be confiscated by the Iranian authorities. American women may not leave the country without permission from their husbands. The U.S. Interests Section at the Swiss Embassy in Tehran can provide only very little assistance if an American married to an Iranian man face marital difficulties and/or encounters difficulty in leaving Iran.

Iran Does Not Recognize U.S. Custody Orders

Custody orders issued by U.S. courts are not recognized or enforced by the government of Iran. When a child is abducted to Iran, it becomes near impossible to bring him or her back to the United States without the full support and consent of the father. All cases involving marriage, divorce, and custody of children in Iran are governed under the jurisdiction of religious courts, which do not grant custody of children to a parent who lives outside of Iran and who will not raise them within the Islamic faith.

Article 1169 of the Civil Code of Iran states that the mother has custody of a male child until he reaches the age of two, after which, custody goes to the father. As to girls, the mother retains custody of her daughter until she reaches the age of seven, after which the custody goes to the father. If the mother becomes insane or remarries another man during the time that she has custody to the children, the custody will go to the father. If the court determines that the father is unfit to raise the children, their custody may be granted to the paternal grandfather or to the mother, if the mother has not renounced her Iranian citizenship and is resident of Iran. If the court grants custody to the mother, she will need permission from the paternal grandfather or from the court to obtain exit visas for the children, under the age of eighteen, to leave the country.

The Supremacy of Islamic Law in Iran

The form of government of Iran is that of an Islamic republic, based on the “Qur’anic justice.” (Article 1 of the Iranian Constitution). The supremacy of Islamic law in Iran is confirmed in various provisions of the 1979 constitution. Article 4 states: “All civil, penal, financial, economic, administrative, cultural, military, political, and other laws and regulation must be based on Islamic criteria. This principle applies absolutely and generally to all articles of the constitution as well as to all other laws and regulations, and fuqaha’ of the Guardian Council are judges in this matter.”

This means that the family law of Iran is based strictly on Islamic Shari’a for the Muslim community in that country. It also means that Islamic Shari’a is superior to any foreign or international law, including international human rights treaties.

Article 21 of the Iranian constitution states: “The government must ensure the right of women in all respect in conformity with Islamic criteria [mawazin-e-eslami]”. This makes Islamic Shari’a superior to the freedom of women that are guaranteed by international treaties.

Under Islamic Shari’a, girls could be married off against their will by male marriage guardians. Women are required to be monogamous, whereas men are allowed to have up to four wives at a time. Wives owed obedience to their husbands, who were entitled to keep them at home and to beat them and to withhold maintenance for disobedience. Husbands could terminate marriages at their discretion simply by stating a divorce formula such as “I divorce you”, or “I divorce my wife”, or “my wife is divorced”, whereas wives needed to overcome difficult hurdle to obtain a divorce over their husband’s objections. Men have superiority over women in the area of guardianship, in which they enjoy great power as guardians over minors.

The government of Iran encourage early marriages for girls by lowering the minimum age for marriage from eighteen to nine. According to the Islamic Republic Civil Code, the legal age of marriage in Iran is thirteen years for girls and fifteen for boys. However, the Iranian parliament’s legal affairs committee made several statements arguing that the Islamic Republic is attempting to lower the girl marriage age to nine with a permission from the judge. So, even though the above-mentioned marriage is illegal based on Iran’s civil code, the religious authorities allowed it.

In the area of succession, women got one-half the share of males who inherited in a similar capacity.

Iran Did Not Ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

CEDAW, or Treaty for the Rights of women, was adopted by the United Nations in 1979, and is the most comprehensive international agreement on the basic human rights of women. The treaty provides an international standard for protecting and promoting women’s human rights and is often referred to as a “Bill of Rights” for women. It is the only international instrument that comprehensively addresses women’s rights within political, civil, cultural, economic, and social life.

Article 5 of CEDAW requires modifying social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of the sexes or stereotyped roles for men and women.

As of December 2014, 188 countries ratified CEDAW. So far Iran is not a signatory to the CEDAW due to a resistance from the Guardian Council. In 2003 the Iranian parliament ratified the treaty, but then it was vetoed by the Guardian Council.

Iran Entered Reservations to the Convention on the Rights of the Child (CRC)

The CRC is aimed at fostering improvement in the situation of children and protecting their interests. Upon signing the CRC, Iran had indicated that it would reserve to CRC articles and provisions “which may be contrary to the Islamic Shariah,” preserving the right to make such particular declaration upon ratification. Upon ratification on July 13, 1994, Iran entered a reservation saying:

“The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.”

By entering reservations in this manner to CRC, Iran is left free to decide that any or all articles of the CRC should not be applied. The addition of an indication that Iran was reserving to the CRC in cases where it was incompatible with “the international legislation in effect” meant that Iran does not abide by international law but rather the Islamic documents that were put forward by the Organization of Islamic Conference and endorsed by Iran, such as the Cairo Declaration on Human Rights, which in essence subordinates international human rights to Islamic Shari’a.

 

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

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor: Middle East Studies at Fairleigh Dickinson University.
  • Lawyer with Middle East Background; Graduated from the Lebanese University, school of law.
  • Admitted to the Lebanese Bar Association of Beirut.
  • Practiced law in Beirut.
  • Nominated to be a judge in Lebanon, Lebanese Judicial Studies.
  • Supervised contracts in Europe and the Middle East.
  • Travelled 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

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

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 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 court order is not published yet, but I have a copy at request. Once published, I will post the link online. 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 American children to Saudi Arabia
  • Abduction of American Children to Jordan
  • Abduction of American Children to Iran
  • Recognition and Enforcement of Mahr Agreements in New York

 

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, and Syriac.

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:

Gabriel M. Sawma

Cell (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

http://www.gabrielsawma.blogspot.com

[1] These articles are published and can be accessed on this blog.

 

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

 

Abduction of American Children to Jordan

By

Prof. Gabriel Sawma

 

In recent years, I have been getting calls from mothers with US citizenships, seeking help in bringing back their children who have been kidnapped by their fathers. In other cases, the mother fears that the father plans to take the children to Jordan and never brings them back to the United States.

In a case that was brought before the Court of Allegheny, Pennsylvania, the client sought my legal advice on case involving a custody order issued by a Shari’a court in Saudi Arabia, in which the father was given right to custody of his two daughters who live with their mother in the State of Pennsylvania. As a result of my testimony, and taking into consideration ‘the best interest of the child’ doctrine, the Court of Allegheny acquired jurisdiction over the custody and ordered that the children stay with their mother in the United States. A copy of the Court judgment is available at request.

Jordan is another country in the Middle East whose laws permit the father to obtain a custody order from the court of that country in the event that he decides to take the child from the United States to Jordan and never return him or her back. This article deals with the law of custody in Jordan in contrast with the law of the United States.

 

Introduction

The Hashemite Kingdom of Jordan is situated at the junction of the Levantine and Arabian areas of the Middle East. The country is bordered on the north by Syria, to the east by Iraq, and by Saudi Arabia on the east and south. To the west is Israel and the West Bank.

The country is a constitutional monarch with representative government. The reigning monarch is the head of state, the chief executive authority delegated to the prime minister and the Council of Ministers, or cabinet. The cabinet is responsible before the elected House of Deputies which, along with the House of Notables (i.e. Senate), constitutes the legislative branch of the government. The judicial branch is an independent branch of the government.

Article 2 of the Constitution states that “Islam is the religion of the State and Arabic is its official language.” (See Constitution of The Hashemite Kingdom of Jordan, 1952 at this link: http://www.wipo.int/wipolex/en/text.jsp?file_id=227813

Article 99 of the Constitution divides the court into three categories: civilian, religious, and special courts. The civilian courts exercise their jurisdiction in respect to civil and criminal matters in accordance with the law, and they have jurisdiction over all persons in all matters, civil and criminal. The civilian courts include Magistrate Courts, Courts of First Instance, Courts of Appeal, High Administrative Courts and the Court of Cassation (the highest court).

The religious courts include shari’a courts, which apply Islamic law for the Muslim community, and non-Muslim tribunals for other religious communities, namely those of the Christian community living in the country. All religious communities in the kingdom have primary and appellate courts and deal only with matters involving family law such as marriage, divorce, inheritance and custody of the children.

 

The Shari’a Courts and Application of Islamic law

Article 105 of the Constitution states that “The Sharia Courts shall in accordance with their own laws have exclusive jurisdiction in respect of the following matters: (i) Matters of personal status of Muslims; (ii) Cases concerning blood money (Diya) where the two parties are Muslims or where one of the parties is not a Muslim and the two parties consent to the jurisdiction of the Shari’a Courts; (iii) Matters pertaining to Islamic Waqfs.” (Waqf is an Arabic term used to point to the real estate property owned by the religious communities in Jordan).

Article 106 states that: “The Shari’a Courts shall in the exercise of their jurisdiction apply the provisions of the Shari’a law.” (See unofficial English translation of the Constitution of Jordan at this link: http://www.med-media.eu/wp-content/uploads/2015/08/wcms_125862.pdf

Thus, the Shari’a courts are vested with exclusive jurisdiction in matters related to personal status of the Muslim community such as marriage, divorce, succession, guardianship, inheritance, as well as matters that are related to Muslim religious charitable endowments, and all other matters that are considered Islamic by nature.

The Shari’a courts comprise of courts of First Instance, and courts of appeal. Appeals from the latter is made to the Court of Cassation, which is the highest court of the land. Members of the trial and appeal courts are recruited from the judges who are experts in Islamic law. One judge, called “qadi”, sits in each Shari’a court and decides cases on the basis of Islamic law.

 

Custody of Children in Jordan

Disputes involving marriage, divorce and custody of children for the Muslim community in Jordan is governed by the Personal Status Law # 36, 2010, published in the Official Gazette, October 10, 2010. The rules applied to the custody of Muslim children are stated in Section 3. Article 173 (1) states that the custody of children belongs to the mother until the child reaches the age of fifteen.  This means the rule governing Muslim children in Jordan is based on the age of the child. After the child reaches the age of fifteen, he or she is given a choice to stay with the mother until the age of maturity, which is 18.

Article 176 states that if the child is a Jordanian citizen, his mother cannot travel with him or her for permanent residency without permission of the wali (guardian).

A mother can lose her primary right to custody of the child if the Shari’a court determines that she is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious Islamic standards.

According to Article 172(b), the wife loses her right to custody when the child reaches the age of seven if the mother is not Muslim. In other words, the age fifteen stated in article 173(1) for custody assumes that the mother belongs to the Islamic faith. If, however, the wife is not Muslim, then her custody ends when the child reaches the age of 7. This clause is based on Islamic Shari’a; it does not take into account the best interest of the child.

 

Jordan Does Not Recognize U.S. Custody Orders

The general rule is that Islamic Shari’a does not recognize a civil marriage, civil divorce or custody order issued by a US court. Under the Jordanian Personal Status Law, which is based on Islamic law for the Muslim community, the Shari’a courts will not recognize US judgments of custody. A US custody order issued at the request of an American mother will not be enforceable in Jordan.

Abduction of children is a major offense in Jordan. An American mother may face serious legal difficulties if she attempts to take her children out of Jordan without written permission of the father.

If a Jordanian father chooses to take the children to Jordan and leave them there, the U.S. Embassy cannot force the father or the Jordanian government to return the child to the United States, nor is it possible in most cases to extradite a Jordanian father to the United States for parental child abduction. American citizens planning a trip to Jordan with dual national children should bear this in mind.

 

Jordan Entered Islamic Reservations to the Convention on the Rights of the Child (CRC)

Upon ratification of the CRC, Jordan entered reservation to the Convention stating: “The Hashemite Kingdom of Jordan expresses its reservation and does not consider itself bound by articles 14, 20 and 21 of the Convention, which grant the child the right to freedom of choice of religion and concern the question of adoption, since they are at variance with the precepts of the tolerant Islamic Shari’ah.” So what do articles 14, 20 and 21 cover?

Article 14 reads: (1) State Parties shall respect the right of the child to freedom of thought, conscience and religion. (2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. (3) Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.”

According to article 14, children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights. Parent should guide their children in these matters. The Convention respects the rights and duties of parents in providing religious and moral guidance to their children. Religious groups around the world have expressed support for the Convention, which indicates that it in no way prevents parents from bringing their children up within a religious tradition. At the same time, the Convention recognizes that as children mature and are able to form their own views, some may question certain religious practices or cultural traditions. The Convention supports children’s right to examine their beliefs, but it also states that their right to express their beliefs implies respect for the rights and freedoms of others.

Jordan entered reservation to article 20 of the Convention which states that children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language. This provision seems to be in violation of Islamic Shari’a which regards children born of Muslim fathers are considered to be Muslims and have to be raised by Muslim families.

Jordan entered reservation to Article 21 which talks about adoption of children. According to article 21, children have the right to care and protection if they are adopted or in foster care. The first concern must be what is best for them. The same rules should apply whether they are adopted in the country where they were born, or if they are taken to live in another country.

When Jordan entered Islamic reservations to the CRC and specified what provision the Kingdom is reserving to, the reservations do not indicate a refusal to be bound by the most central provisions of the Convention. That is, Jordan is not indicating a rejection of the overall goal of improving the wellbeing of children. Jordan singled out adoption and freedom of religion as indicated above, both of which violate percepts of Islamic law as traditionally interpreted.

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor: Middle East Studies at Fairleigh Dickinson University.
  • Lawyer with Middle East Background; Graduated from the Lebanese University, school of law.
  • Admitted to the Lebanese Bar Association of Beirut.
  • Practiced law in Beirut.
  • Nominated to be a judge in Lebanon, Lebanese Judicial Studies.
  • Supervised contracts in Europe and the Middle East.

 

  • Travelled 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

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

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 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 court order is not published yet, but I have a copy at request. Once published, I will post the link online. 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 American children to Saudi Arabia
  • Abduction of American Children to Jordan
  • Abduction of American Children to Iran
  • Recognition and Enforcement of Mahr Agreements in New York

 

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:

Gabriel M. Sawma

Cell (609) 915-2237

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com 

http://www.gabrielsawma.blogspot.com

 

 

 

[1] These articles are published and can be accessed on this blog.

 

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

 

ABDUCTION OF AMERICAN CHILDREN TO SAUDI ARABIA

By

Prof. Gabriel Sawma

As this article was being written,  the court of Common Pleas of Allegheny County, Pennsylvania, Family Division,  issued a judgment in our favor, granting the custody of two children to the mother and denying the father from taking the children back to Saudi Arabia. The custody order complies with our argument before the court of Pennsylvania that the Saudi custody order violates US and international law, and it should not be recognized for violation of Pennsylvania public policy, and because Saudi Arabia is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. The court order is not published yet; I will post the link once it is published. A copy is available at the request of judges and lawyers.

In recent years, I have been getting calls from clients throughout the U.S. and Canada seeking help in bringing back their children who were kidnapped from the United States to Saudi Arabia by their fathers. Most of these cases involve a marriage of Saudi men to women of U.S. nationality. This situation becomes a frustrating task for judges and lawyers for not being able to have the government of Saudi Arabia comply with U.S. court decisions to bring back the children, or grant visa to the mother to travel to Saudi Arabia and see her children. That is because Saudi Arabia does not recognize US court orders.

In other situations, the children live in the United States with their mother, but fear that the husband can obtain Saudi passport for the children and plans to take them to Saudi Arabia with the purpose of staying there and not allowing them to come back to the United States.

This article addresses the legal issues facing women who see their children abducted to Saudi Arabia by their fathers for the sole purpose of keeping them in that country and not allowing them to return to USA. Some of the calls I receive indicate “fear of abduction” by the husband. The article also helps American women to understand the ramifications, in connection with custody of their children, when they marry Saudi men.

On its website, the U.S. Embassy in Riyadh, capital of Saudi Arabia, states the following: “The Kingdom of Saudi Arabia is not a party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between Saudi Arabia and the United States dealing with international parental child abduction. American citizens who travel to Saudi Arabia are subject to the jurisdiction of Saudi courts, as well as to the country’s laws and regulations. This hold true for all legal matters including child custody. Parents planning to travel with their children to Saudi Arabia should bear this in mind.” (See Embassy of the United States in Riyadh, Saudi Arabia at: http://riyadh.usembassy.gov/ipca2.html

 

Introduction

Saudi Arabia is a kingdom located in the Middle East between the Persian Gulf and the Red Sea. It borders Jordan, Iraq, and Kuwait to the north, Yemen to the south, and Oman, the United Arab Emirates (UAE), and Qatar to the east.

Unlike most Muslim majority countries of the Middle East, where personal status laws have been codified for the various religious communities, Saudi Arabia does not have a codified family law. The religion of Saudi Arabia is Islam and its constitution is the “Book of God Most High and the Sunna of His Prophet.” This means the rule of Saudi Arabia draws its authority from the Quran and the sayings and deeds of the Prophet of Islam. Consequently, Sharia courts apply, in cases brought before them, the rules according to the Quran, the Sunna and the interpretations of these two divine elements given by major scholars in the Hanbali School of Thought, which is the dominant school of jurisprudence in the kingdom.

Without going into details about the Schools of Thought in Sunni and Shi’i Islam, it is worth to note here that Islamic Sharia is explained within the context of Four Schools of jurisprudence in Sunni Islam and three Schools within the Shi’a community. These are known in Arabic as Madhaahib, singular Madhab. In other words, each Muslim majority county applies the rules of Islamic Sharia according to one or more of these Schools. Saudi Arabia, for example applies the rules of Hanbali jurisprudence, while Lebanon and Syria apply the rules according to Hanafi School of Thought for the Sunnis. In Indonesia, they apply the rules of Shafi’i. (For more information on the distribution of Schools of Thought in the Islamic world, see: http://veil.unc.edu/religions/islam/law/

 

Custody Orders Are Determined by Religion, Gender, and Age of the Child

Custody orders issued by Saudi Shari’a courts are based on religion, gender of the child, and his or her age. The most important criteria in Saudi custody orders is that the custodian father will take care of the children by bringing them up within the Islamic faith. This means that the religion of the father determines the custody of his children; a child born of a Muslim father, his or her custody goes directly to the father without taking into consideration the Western notion of the ‘best interest of the child.’

In the event of divorce, custody of girls and boys belong to the father when they reach age of seven. Girls are not given a choice to live with the mother or father, but boys are usually give that choice.

Saudi courts generally do not award custody of children to non-Saudi women. If the mother is not Arab Muslim, judges will not grant her custody of the children.

Saudi custody orders do not take into consideration the best interest of the child. Shari’a court judges do not interview the children and do not provide the opportunity for the children to make their views known.

In Saudi Arabia, the mother’s role in reproduction is, in fact, limited to childbirth, nursing, and the nurturing of young children. Beyond that stage, custody of children belongs to the father.

Under Saudi law, no woman or child can leave the country unless the ‘guardian’ approves of that. The ‘guardian’ is the husband, who has authority to deny his wife or children, whether adult or not from traveling outside the country without his permission, even if they hold U.S. citizenship.

In most cases, Saudi fathers have married their half-American daughters to other Saudi men. The U.S. Embassy can intercede with the Saudi government to request exit visas for adult U.S. women, but there is no guarantee that the visas will be issued, and obtaining an exit visa without the male guardian’s consent takes many months, if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the departure of minor children without their father’s permission.

In September 2002, the Foreign Minister of Saudi Arabia announced that any adult American woman who wishes to leave Saudi Arabia, can do so even without permission of her male guardian. The Foreign Minister did not say anything about half-American children.

Saudi Arabia does not recognize dual citizenship. The U.S. Embassy in Riyadh states that: “The Saudi government does not recognize dual nationality. Saudi authorities have confiscated the U.S. passports of U.S. citizens and U.S.-Saudi dual nationals when they have applied for Saudi citizenship or a Saudi passport.” <http://riyadh.usembassy.gov/service/passport-and-citizenship/dual-nationality.html>

In its 2016 report on Saudi Arabia, Amnesty International states the following: “Women and girls remained subject to discrimination in law and in practice. Women has subordinate status to men under the law, particularly in relation to family matters such as marriage, divorce, child custody and inheritance, and they were inadequately protected against sexual and other violence. Domestic violence remained endemic, despite a government awareness-raising campaign launched in 2013. A law criminalizing domestic violence which was adopted in 2013 remained unimplemented in practice.” (See <https://www.amnesty.org/en/countries/middle-east-and-north-africa/saudi-arabia/report-saudi-arabia/ >

In Saudi Arabia, women are prohibited from obtaining passport, marrying, traveling, or accessing higher education without the approval of a male guardian.; A father may force his female children into marriage without their consent, and underage girls may be forced to marry.

Under the Islamic rules, a Muslim man may marry up to four wives at one time, and according to the Qur’an, women should be devoutly obedient to their husbands and “men are the protectors and maintainers of women because Allah has made one of them to excel the other.” (Qur’an 4:34)

One such manifestation of obedience is wearing the hijab, which means face and head covering and all over the body, and men can end the marriage by simply stating ‘I divorce you’. The husband can divorce his wife without having to obtain a judicial order, and without having to give very much justification. On the other hand, a woman must get a judicial decree in order to get out of the marriage.

Under Islamic law, a woman’s testimony in court is equivalent to half that of a man, and a Muslim woman is prohibited from marrying non-Muslim man.

Saudi Arabia Does Not Have Equal Protection of the Law

The most influential formulation of the principle of equal protection of the law was set forth in the 1868 Fourteenth Amendment to the US Constitution is not recognized in Saudi Arabia. The Kingdom discriminates against women, whose status is more difficult than in any other country in the world, particularly with regard of freedom of movement (forbidden from driving), and may not travel without being accompanied by a male relative, freedom of speech, and freedom from dress restrictions.

Saudi Arabia Is Not Party to The Hague Convention On the Civil Aspects of International Child Abduction

Saudi Arabia is not party to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the Kingdom of Saudi Arabia and the United States dealing with international parental child abduction, nor to an extradition treaty with the U.S.

Saudi Arabia Does Not Recognize U.S. Custody Orders

Saudi Arabia does not recognize U.S. court orders, including custody of children and divorce decrees, which are consequently unenforceable in Saudi Arabia.

Saudi Arabia Did Not Sign the Universal Declaration of Human Rights (UDHR) and Entered Reservations on Other International Human Rights Treaties

UDHR was adopted on December 10, 1948 by the United Nations General Assembly. Saudi Arabia never signed the Declaration, and ratified The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by entering reservations that make Islamic Shari’a superior to the Convention, which was adopted in 1979 by the UN General Assembly.

Saudi Arabia did not ratify the International Covenant on Civil and Political Rights (ICCPR), which was adopted on December 19, 1966 by the General Assembly of the United Nations. Saudi Arabia is one of the few states that is not a party to ICCPR. Human Rights Watch confirms this fact in its report, which reads: “Despite its assertions to the contrary, Saudi Arabia, by virtue of its membership in the United Nations, is committed to uphold universal human rights standards, including those set forth in the Universal Declaration of Human Rights (UDHR), which are recognized as norms of customary international law. Other international instruments elaborate upon these rights, most notably the International Covenant on Civil and Political Rights (ICCPR), to which 138 states are party. Although Saudi Arabia is one of the few nations that is not a party, the terms of ICCPR provide guidance as to the content of the fundamental rights that Saudi Arabia is obliged to respect, based on Saudi’s participation in the United Nations and the universally binding character of such rights.” (See the Report on this link: <https://www.hrw.org/reports/1997/saudi/Saudi-07.htm>

Saudi Arabia Violates Treaty on Human Rights for The Child

In November 1989, the United Nations General Assembly adopted a human rights treaty called The Convention of the Child (CRC), or (UNCRC). It sets out the civil, political, economic, social, health and cultural rights of the children. It defines a child as any human being under the age of eighteen, unless the age of majority is attained earlier under a state’s own domestic legislation. The treaty came into force on September 2, 1990, after it was ratified by the required number of nations.

Saudi Arabia ratified the Convention on the Rights of the Child in 1996, but it entered a reservation “With respect to all such articles as are in conflict with the provisions of Islamic law.” This means, Saudi law enforcement officials, judges, and prosecutors “have very broad discretion to determine issues such as when to arrest children, how long to detain them and what punishments to impose on those deemed to have broken the law.” (See Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System, volume 20, by Human Rights Watch, 2008, p.8.) This also means that Saudi Arabia considers Islamic Shari’a superior to international human rights laws.

There is no minimum age of marriage in Saudi Arabia, a number of notorious child marriage cases have reported by the media, such as when an eight-year-old girl requested the courts in May 2009 to grant her divorce from her fifty-year-old husband. (See A Conspicuous Silence: American Foreign Policy, Women, and Saudi Arabia by Valerie Hudson, Columbia University Press, 2015, electronic version)

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law, mainly the law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

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

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

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

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

 

Contact Information

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

 

 

 

 

 

 

 

 

New York Appellate Division Accords Recognition and Enforcement of United Arab Emirates Divorce, Mahr, and Custody Judgment

By

Professor Gabriel Sawma

 

This author submitted an affidavit to the New York Supreme Court in Westchester County in support of recognition and enforcement of a divorce decree obtained from Abu Dhabi, an emirate in the United Arab Emirates (UAE). The divorce was granted to the wife, and included mahr and custody of the children, http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

The Supreme Court cited our affidavit in the following terms: “She (the wife) submits an affidavit from Gabriel Sawma, an expert consultant on Islamic divorce in the United States and Middle East Laws, including the legal structure of the courts of the UAE, which include the emirate of Abu Dhabi. Professor Sawma is fluent in Arabic and English and he reviewed both the Arabic and English translations of the certified orders, judgments, and decrees rendered by the Abu Dhabi courts in the criminal, divorce, and custody proceedings between the parties. In his affidavit, Professor Sawma explains the structure of the judiciary in the UAE, the legal proceedings between the parties and the judgments and decrees rendered by the Abu Dhabi courts.”.

I would like to note here that the Supreme Court of the State of New York is the trial-level court. Appeals from Supreme Court decisions, are heard by the Appellate Division of the New York Supreme Court. The Appellate Division is intermediate between the New York Supreme Court and the New York Court of Appeals. Unlike in most other states, the Supreme Court in New York is a trial court and is not the highest court in the state. The highest court of the State of New York is the Court of Appeals.

Summary of the Case

In 1998, S.B., a U.S. citizen professional woman (wife), married W.A. (husband), an immigrant from Egypt who later became an architect.  They both had Islamic and civil marriage in New York, and both lived in New York State until 2006, where two children of the marriage were born. They then moved to Abu Dhabi in the United Arab Emirates, where W.A. got a job.

In 2009, S.B. filed a suit in Abu Dhabi, accusing W.A. of attacking her, inflicting “severe bruises and a fractured skull.” Consequently, W.A. was convicted of assault on the grounds (according to the UAE court) that he had crossed his legal limits to discipline his wife. The husband never denied using physical force against his wife, but defended the charges claiming he had the right to use physical means to discipline his wife and that “her injuries were not as severe as she claimed.”

The Abu Dhabi Court of the First Instance granted divorce to S.B, and awarded her the $250,000 mahr, which, according to Islamic law, represents an amount of money that the husband promise to pay his wife in the event of divorce. The court also ordered W.A. to pay child support and some amount of spousal support, and gave the wife custody of the children.

Both parties had the opportunity to participate in the litigation in Abu Dhabi, and each party was represented by legal counsel. This was not just a case where husband and wife are living in the United States, and the husband goes back to his country in the Middle East to get a divorce without the wife’s participation.

W.A. appealed the first judgment to the Court of Appeal in Abu Dhabi, which rendered a decision on April 4, 2010, and the Court of Cassation, which rendered a decision on November 8, 2010. Both courts affirmed the judgment of the Court of First Instance, “except that the Udda Alimony.

Following the final judgment of the Court of Cassation, the husband fled Abu Dhabi and returned back to New York and brought with him the children’s passports without the knowledge of the wife. The wife had a banking job in the UAE, and wanted to abide by the terms of her three-year contract. At a later time, S.B. and her children returned back to New York.

Recognition of Divorce Judgment Pursuant to the Doctrine of Comity

S.B. filed a suit seeking recognition and enforcement of the Abu Dhabi divorce decree in New York. The Supreme Court of Westchester County in New York recognized the UAE.

The Supreme Court stated that “The general principle of law is that a divorce obtained in a foreign jurisdiction by residents of this State, in accordance with the laws thereof, is entitled to recognition under the principle of comity unless the decree offends the public policy of the State of New York”, … “Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States”, … “Loosely, [comity] means courtesy, respect, or mutual accommodation; practically, it means that each sovereign, including the State of New York, can decide for itself which foreign country judgments it will recognize and which it won’t.”

The Court added: “A court has the inherent power pursuant to the principles of comity to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the domestic state,… A party who has properly appeared in a foreign action is ordinarily precluded from attacking the resulting judgment by bringing a collateral New York proceeding… Only where there has been a showing that the foreign judgment was fraudulently obtained … or that recognition of the judgment would conflict seriously with a compelling public policy… can a collateral attack be entertained… Absent some showing a fraud in the procurement of the foreign country judgment… or that recognition of the judgment would do violence to some strong public policy of this State … a party who properly appeared in the action is precluded from attacking the validity of the foreign country judgment in a collateral proceeding brought in the courts of this State.”

The Court Rejected the Claim That Abu Dhabi Court Judgment is based upon the Religious Marriage Contract

In this case, W.A. “claims that the Abu Dhabi entered a divorce judgment based upon the religious marriage and declined to recognize and litigate the civil marriage, thereby violating the public Policy of this state. However, this claim is belied by the multiple orders, judgments, and decrees annexed to plaintiff’s moving papers, which establish that the divorce action was brought in the Abu Dhabi civil court system and under the Personal Status Law of 2005. Moreover, Article 5 of the Personal Status Law established that the divorce action was litigated in a civilian state court, not a Sharia religious court, by stating: “[t]he State courts shall have jurisdiction on Personal Status litigations in which citizens, or aliens, having domicile or residence or place of business in the State, are defendant.” (See also Affidavit of Professor Gabriel Sawma, dated May 11, 2012, at page 3, and the exhibits annexed thereto).

The Mahr Agreement is Enforceable Pursuant to the Doctrine of Neutral Principles of Law

The Supreme Court of Westchester County viewed the decree ordering the payment of the $250,000 mahr enforceable. The Court said: “There can be little doubt that a duly executed antenuptial agreement, by which the parties agree in advance of the marriage to the resolution of disputes that may arise after its termination, is valid and enforceable.”

The Supreme Court added: “So too many agreements predicate upon religious doctrine and customs be enforced in civil courts, as long as enforcement does not violate either the law of the public policy of the state. While “the First Amendment severely circumscribes the role that civil courts may play in resolving [religious] disputes,” a State may adopt any approach to settling these disputes, “so long as it involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tents of faith”, … Use of the “neutral principles of law” approach, which “contemplates the application of objective, well-established principles of secular law to the dispute,” has been found to be “consistent with constitutional limitations.” This approach permits “judicial involvement to the extent that it can be accomplished in purely secular terms.”

“The “neutral principles’ method requires a civil court to “take special care to scrutinize the [religious] document in purely secular terms, and not to rely on religious precepts”. If interpretation of the document “requires the civil court to resolve a religious controversy, … resolution of the doctrinal issue” must be deferred to the “authoritative ecclesiastical body.”

A “Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a free exercise of religious beliefs, no matter how diverse they may be.” Since a Mahr agreement may be enforced according to neutral principles of aw, it will survive any constitutional challenge and enforceable as a contractual obligation.

The Custody Order from Abu Dhabi is recognized in the State of New York

The Supreme Court of Westchester County stated that “The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) applies nationally and internationally and is designed to promote uniformity throughout the world in custody determinations, … The UCCJEA is mandatory and provides that “a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this article must be recognized and enforced.” Except where “the child custody law of a foreign country as written or as applied violates fundamental principles of human rights”.

The Domestic Relations statutes mandates that “any foreign nation must be treated as if it were a state within the United States for purposes of jurisdiction and inter-court cooperative mechanism. The UCCJEA is not a reciprocal act. There is no requirement that the foreign country enact a UCCJEA equivalent, … The statute “is designed to eliminate jurisdictional competition between courts in matter of child custody, with jurisdictional priority conferred to a child’s home state . . .”

When there is no violation to fundamental principles of human rights in the custody law of the foreign country, or that the foreign courts are without jurisdiction to determine custody, the U.S. court, based upon the principles of comity and pursuant to domestic law, must recognize and enforce the custody determination of a foreign court awarding custody. This is attested by the Supreme Court’s decision of Westchester County which reads: “Neither party alleges that any of the child custody laws of the UAE violate fundamental principles of human rights or that the Abu Dhabi courts were without jurisdiction to determine custody. Nor does this Court find any such violation or lack of jurisdiction. Therefore, based upon the principles of comity and pursuant to Domestic Relations Law 75-d, this Court must recognize and enforce the custody determination of the Abu Dhabi courts awarding plaintiff custody.”

The Appellate Division Affirms the Judgment of the Supreme Court

On January 20, 2016, the Appellate Division: Second Judicial Department of the Supreme Court of the State of New York affirmed the judgment of the lower court,  http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2016/D47647.pdf

The High Court refers to our affidavit as follows: “According to the affidavit of a Fairleigh Dickinson University professor submitted by the plaintiff in support of her motion, the parties’ mahr agreement is a marriage agreement in accordance with Islamic law wherein the defendant pledged to pay the plaintiff a “deferred dowry” in the event of a divorce. While the parties were living in Abu Dhabi, United Arab Emirates, the plaintiff sought and obtained a judgment of divorce against the defendant in the Abu Dhabi courts. The judgment of divorce awarded the plaintiff custody of the parties’ children and financial relief, including an award of $250,000 pursuant to the mahr agreement.” The Court added:

Although not required to do so, the courts of this State generally will accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the courts to judgments of our sister States”, . . . Comity should be extended to uphold the validity of a foreign divorce decree absent a showing of fraud in it procurement or that recognition of the judgment would do violence to a strong public policy of New York.”

 

 

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

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, and French

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

American Women Marrying Saudi Men

By

Professor Gabriel Sawma

Students of Saudi Nationality come to the United States for study. Many of them marry American women with no experience in Saudi Arabia’s family law, and have no idea what they are getting into in marrying someone of a different culture. Quite often, the Saudi students convince these women to convert to Islam, and then have American Muslim children who must follow Islam. Some of the marriages are very strong and good, but the majority of them are not, and they fall apart under the impact of extreme and difficult shock of social and religious life of Saudi Arabia.

When the marriage breaks up, American women naturally want to take their children with them and leave Saudi Arabia, but they find out that they cannot get an exit visa without permission of the husband, even though they and their children are U.S. citizens. This author has worked in Saudi Arabia and other Middle East countries, and handled many cases involving custody of children in the region.

 

The Religious Effect

Islamic religion dominates all aspects of life in Saudi Arabia. This includes government policy, cultural norms, and social behavior. Islam is the only official religion of that country, and public observance of any other religion is forbidden throughout the kingdom.

Women are prohibited from driving cars or riding bicycles on public roads, or in places where they might be observed. Women and men are not free to congregate together in most public places, and a man may be arrested for being seen with, walking with, or traveling with, or driving a woman other than his wife or sister, or mother, or daughter. Also are forbidden of playing music, or dancing in public, mixed swimming, public showing of movies, and consumption of alcohol.

Religious police, known as mutawwa, are empowered to enforce the strict conservative interpretation of Islamic codes of dress and behavior of women, and in many cases, they harass women who do not cover their heads or whose clothing is insufficiently concealing.

 

Saudi Arabia Does Not Recognize Dual Citizenship

Children of American women born of marriages with Saudi men lose their U.S citizenship while in Saudi Arabia. This is due to the fact that Saudi Arabia will not recognize dual citizenship. Saudi government considers the offspring to be solely Saudi citizens because they were born to a Saudi father. While in Saudi Arabia, Children born of Saudi men and American women will be considered Saudi citizens only.

 

An Exit Visa is Required to Depart Saudi Arabia

A U.S. citizen married to Saudi man should be aware of the fact that she must have permission from her husband to depart Saudi Arabia with the children. This is true even if the woman and her children are U.S. citizens and even if the husband is not a Saudi Citizen. The U.S. Embassy can intercede with the Saudi government to request exit visas for adult U.S. women, but there is no guarantee that visas will be issued. Obtaining an exit visa without the consent of the male guardian, takes many months, if it can be obtained at all. The U.S. Embassy cannot obtain exit visas for the departure of minor children without permission from the father.

 

American Women Who Marry Saudi Men May Lose Their Children After They Return to Saudi Arabia

Saudi Arabia is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, nor are there any international or bilateral treaties in force between the United States and Saudi Arabia dealing with international parental child abduction.

American women who travel to Saudi Arabia are subject to the jurisdiction of Saudi courts, as well as to Saudi laws and regulations. This hold true for all matters including custody. Parents planning to travel with their children to Saudi Arabia should bear in mind that the U.S. government cannot help an American woman whose children have been abducted by their father.

 

Saudi Arabia Does Not Recognize U.S. Court Custody Orders

American women marrying Saudi men should keep in mind that, in Saudi Arabia, custody decisions are based on Islamic law, and that Saudi Arabia is not party with the U.S. to any extradition, judicial assistance or child abduction treaties. Additionally, Saudi law does not recognize U.S. court orders, including child custody and divorce decrees, which are consequently unenforceable in Saudi Arabia. An American mother, whose husband has abducted the children to Saudi Arabia may not be granted an entry visa to the kingdom to see her children.

A child born anywhere in the world to a Saudi father is generally held to be a Saudi citizen, Muslim, and eligible for a Saudi passport. In many cases, the Saudi Embassy will grant passport to children born in the United States of an American wife and a Saudi husband.

 

American Woman May Find Her Husband is Married to Other Women at the Same Time

Like any other Muslim majority country, Saudi Arabia allows a Muslim husband to have up to four wives at one time as long as he can support them and treats each equally, while a woman may have one husband at a time.

Under Islamic law, a Muslim man is allowed to marry a Christian or Jew without having to change her religion. But a Muslim woman cannot marry non-Muslim man unless he converts to Islam.

 

Non-Muslim Women Marrying Muslim Men Cannot Inherit

Under Islamic law, which is the law in Saudi Arabia, a non-Muslim woman is not allowed to inherit from her husband. Daughters receive only half the amount of inheritance awarded to their brothers.

 

Testimony of Women in Courts is Equal Half of that of Men

Under the Islamic law of Saudi Arabia, the testimony of a woman does not carry the same weight as that of a man. The testimony of one man equals that of two women.

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

 

THE DRUZE DIVORCE IN USA

By

Professor Gabriel Sawma

Introduction to the Druze Community in USA

A study of the Druze community in the United States can be understood within the context of the Druze people and their presence in the Middle East, mainly in Lebanon, Syria, and Israel. The faith is called Tawheed and takes its origin from Shi’a Islam under the guidance of the sixth Fatimid caliph Abu Ali Al-Mansur Al-Aziz Bi-Allah, popularly known as Al-Hakim Bi-Amr Allah. This caliph is considered by the adherents of the Druze faith a man with great wisdom and knowledge. (For in depth analysis of the Druze faith, refer to The Druze Faith by Sami Makarem, New York, Caravan Books, 1974).

Although there are Druze in Israel, Syria and Jordan, the majority are present in Lebanon, where they are recognized as a minority who possess a great political influence in that country. Their influence goes back to the Ottoman period.

 

Development of the the Druze Personal Status Law

During the Ottoman Empire, the Islamic family law (Personal Status Law), was applied to the Muslim communities according to the Hanafi School of Thought. (For more information on Muslim Family Law under the Ottoman Empire, see The View from Istanbul: Lebanon and the Druze Emirate n the Ottoman Chancery Documents 1541-1711 by Abdul-Rahim Abu-Husayni, New York, Center for Lebanese Studies in association with I.B. Tauris Publications, 2004)

The Ottoman family law remained in force in Lebanon until 1926 when the French government, which had a Mandate over Lebanon, decided to modify it in order to give separate legal status for the Shi’a community. In December of 1926, the French authority recognized the Druze of Lebanon as an independent sect. And, in 1948, the Druze Personal Status Law was enacted for the purpose of organizing the court system for the community. The final Personal Status Law (PSL) governing the Druze community was issued on March 5, 1960. The PSL governs all aspects of family law for the Druze community in Lebanon. However, when a case has no legal ruling in the PSL, the judge may apply the Hanafi code of the Sunni Muslims, taking into account the Druze traditions, customs and the principles of justice and equality. Before 1948, family cases such as marriage, divorce, custody of the children and inheritance, were settled in accordance with the prevailing Islamic law according to the Hanafi provisions taking into consideration the practices and customs of the Druze community. (For more on the Druze tradition, see Nizam al-Mowahedine Al-Dorouz Al-Ijtimaa’; fi sijil alahkam al mazhabiat lil qadi Ahmad Taqqi Al-Dine, 1866-1870 by Taqii Al-Dine, Slieman and Abou=Chakra, Dar Isharar lil Tiba’at Wa Al-Nashir Wa Al-Tawzee’, Beirut, 2006)

 

The Current Personal Status Law of the Druze in Lebanon

Divorce is defined as the termination of a marriage contract. According to Article 37 of the PSL, the judge of the Druze community has solely the authority to end the marriage. Once the divorce order is issued by the judge, the husband is not allowed to remarry his divorced wife. (Article 38). Divorced members of the Druze community wish to remarry may obtain a civil marriage outside the country or change their religion.

Contrary to the rules of Islamic divorce, a Druze man cannot divorce his wife unilaterally. Under the Islamic rules, a Muslim man can divorce his wife anytime and in any place by just uttering “I divorce you”, or “I divorce my wife”, or “my wife is divorced.” Such a rule is not acceptable in a Druze divorce according to Article 37. Once a divorce application is submitted to the court, the judge is required by law to appoint two adjudicators for reconciliation:

“In a dispute between husband and wife, the judge shall appoint two arbitrators from both families. If none of their relatives has the legal capacity to act as arbitrator, the judge shall appoint an outsider to conduct the reconciliation.”

If the judge finds the husband is at fault, he will order the husband to pay the wife, balance of the mahr. According to Article 49 of the PSL, the judge has authority to order compensation for injuries caused by the husband in addition to the mahr.

The wife may seek divorce without losing her right to mahr under conditions stated in Articles 39, 40, 41, 43, 44 and 45. The conditions include wife’s right to seek divorce if the husband suffers from incurable, contagious disease, or if the husband is mentally ill, or committed an act of adultery, was imprisoned for more than five years, was absent for three years with providing maintenance to his wife for five years. Under these circumstances the wife may seek divorce without losing her mahr. On the other hand, the husband may seek divorce if the wife is considered “nashez”, i.e., refuses to have sexual relation with her husband, or leaves the house without reasonable cause and does not return back. According to Article 42 of PSL, a Druze married couple may agree to divorce amicably in front of two witnesses without having to explain the cause of divorce to the judge.

 

Types of Divorce in the Druze Community

Divorce among members of the Druze community takes one of three forms: (1) divorce by agreement (talaq bi al taradi) of the married couples before the case is presented to the court, i.e., out-of-court settlement; (2) the divorce is contested before the court, but the couples decide to settle the case after court intervention; (3) when the parties to a divorce contested their case before a judge without reaching an agreement. In such cases, the judge would issue a judgment of divorce.

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce, custody of children and abduction of children to Muslim countries, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and other Semitic languages.

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

For more information on our field of expertise, please visit our websites at the following links, where you will find most of our articles:

http://www.muslimdivorceinusa.com

http://www.gabrielsawma.blogspot.com

http://www.hindudivorceinuscourts.com

 

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

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

CHRISTIAN OR JEWISH WOMAN MARRYING A MALE CITIZEN OF UAE

By

Prof. Gabriel Sawma

 

The United Arab Emirates (UAE) is a union of seven emirates of Abu Dhabi, Ajman, Fujairah, Sharjah, Dubai, Ras al-Khaimah and Umm al-Qaiwain. These emirates are located in the southeast end of the Arabian Peninsula on the Persian Gulf, bordering Oman to the east and Saudi Arabia to the south. Article 7 of the constitution of the UAE states “Islam is the official religion of the Union. The Islamic Shari’a shall be a main source of legislation in the union. The official language of the Union is Arabic.” This means the law of marriage, divorce, custody of children and inheritance is governed by the Qur’an and sayings and deeds of the Prophet of Islam, which constitute the major elements of Islamic Shari’a.

In 2005, the UAE enacted Federal Law No. 28 to govern matrimonial issues in what is called Matters of Personal Status or Personal Status Law (PSL). The PSL covers rules over marriage, divorce, guardianship, maintenance (Arabic nafaqah) and inheritance. Article 2 of PSL states that its provisions are based on Islamic fiqh (jurisprudence), and if no ruling exists in Islamic jurisprudence, a determination will be made in accordance with the “prevailing opinion in the Sunni Schools in the following ranking: Maliki, Hanbali, Shafi’i, and Hanafi”  followed by “general principles of the Islamic Shari’a and social justice.”

 

 

THE MARRIAGE CONTRACT

Islamic marriage is a contract with two major elements: an offer by one party, and acceptance by the other party.  Article 39 of the PSL mandates that the marriage of a woman over eighteen must be approved by a male guardian, otherwise, the marriage will be considered “null” and the couple would be separated. In addition to that, the law requires the presence of two Muslim male witnesses for the validity of the marriage between two Muslim couples, although Christian and Jewish witnesses are acceptable if one of the couple is Christian or Jew.

 

 

MUSLIM MAN’S ABILITY TO MARRY MORE THAN ONE WOMAN

The Personal Status Law of the United Arab Emirates does not prohibit a Muslim man from marrying a Christian or Jewish woman as we mentioned earlier.  But on the other hand, a Muslim man is allowed to marry up to four wives at the same time. This means that, even though he is married to a Christian or Jewish wife, he can still marry up to four wives.

 

 

CHILDREN BORN OF SUCH MARRIAGES ARE CONSIDERED MUSLIMS

Under the law of Islam, children born of mixed marriages, involving a Muslim man and non-Muslim woman are considered Muslims. The religion of children born of a Muslim father, always follow the religion of the father. It does not matter even if the child is baptized in the Christian faith, he is still and will always be regarded as Muslim, and is governed by Islamic Shari’a.

 

 

CUSTODY OF THE CHILDREN IN THE EVENT OF DIVORCE

Marriages between UAE nationals and foreign-born wives are more likely to end in divorce. According to some accounts, the UAE has the highest divorce rate in the Gulf region; in 2005, it reached 46 percent. While women, who are UAE nationals, receive financial aid from the government after divorce, women are not eligible for such aid.

In the event of divorce, or death of the husband, a Christian or Jewish woman married to a UAE national, the wife will lose her custody to her children. This is based on Islamic jurisprudence which says, a person outside the religion of Islam is not qualified to have custody of Muslim children.

 

 

WIFE CANNOT LEAVE THE COUNTRY WITH THE CHILDREN WITHOUT PERMISSION OF THE HUSBAND

Foreign women married to national citizens are not free to leave the country with their children; their children must remain in the UAE unless the court decides otherwise. Islamic Shari’a does not allow a divorce wife to travel outside the country with the children without permission of the husband or a court order. If the husband is dead, the wife can leave the country with the children only if the guardian of the children, who has been appointed by the father before his death, or a guardian who has been appointed by a judge, permits the wife to travel with the children. If such permission is not granted, the wife might have to leave the country without the children. U.S. law cannot force a foreign country to bring the children back to the United States.

 

 

A HUSBAND MARRIED TO A FOREIGN WOMAN MAY DECIDE TO TAKE THE CHILDREN TO HIS COUNTRY AND STAY THERE

A Christian or Jewish woman who is married to a Muslim citizen of the UAE should know that if the husband travels with the children to his country and decides to stay there with the children, she is not afforded protection of U.S. law to bring the children back to the United States. For example, if the husband, who is national of UAE travels with his wife and their children to his country, and then chooses to stay in UAE with the children, the wife may not be able to bring her children back to the United States. The law of UAE will not allow the wife to bring back her children to the U.S. without permission of the husband.

Furthermore, she may not be able to stay in the United Arab Emirates since her status as resident is based on her husband’s sponsorship. If the husband withdraws his sponsorship, she would be subject to deportation without being able to bring her children with her. There is no guarantee that she will be able to obtain an entry visa to that country in the future.

 

 

CONVERSION OF ONE SPOUSE TO ISLAM

Under Islamic Shari’a, if a non-Muslim woman married to a non-Muslim man decides to convert to Islam, the marriage is suspended until her husband converts too. In theory, she could leave the non-Muslim husband and marry a Muslim man. This is perfectly legal under Islamic law, and it has a reference in the Qur’an, which reads: “O ye who believe [Muslims], when there come to you believing women refugees, examine them. Allah knows best as to their faith; if you ascertain that they are believers [Muslims], then do not send them back to unbelievers [non-Muslims]. They are not lawful [wives] for the unbelievers, nor are [the unbelievers] lawful [husbands] for them.” (Qur’an 60: 10)

If a non-Muslim husband converts to Islam, a new marriage is not needed. He can marry up to four wives at one time.

 

 

INHERITANCE

Under the rules of Islamic Shari’a, a daughter inherits half of her brother’s shares. When a husband dies, the widow inherits one-eighth of his assets if he has children. If he dies childless, the wife inherits one-fourth. The rest of his assets are passed on to the husband’s closest relatives. If no son is born of the marriage, daughters alone cannot inherit all the assets of their parents; in such a case, part of the assets goes to the sons of the father’s brother.

However, a non-Muslim woman marrying a Muslim man from the United Arab Emirates does not inherit anything if the husband dies unless she is mentioned in his will as a beneficiary. Such a will cannot be valid if its purpose is to deny a legitimate person from getting his or her share under Islamic law.

 

 

DISTRIBUTION OF ASSETS

In the event of divorce, the wife does not share in the marital assets. There is no distribution of assets in Islamic law. The only amount of money the wife receives in the event of divorce is the mahr as stipulated in the marriage contract. It is therefore very important for a woman who is embarking on marrying a male citizen of the United Arab Emirates to pay attention to the amount of mahr when she signs the marriage contract. Islamic Shari’a does not entitle the wife to share the assets of her husband no matter how diligent she was in protecting and promoting the family business.

You have to remember too that the husband is allowed to marry three other women. This tactic is often used by the husband to avoid divorcing his wife, since divorcing her would make him liable to the mahr. On the other hand, if the wife seeks divorce through khul’, she may have to give back the mahr to her husband.

I suggest that a woman looking to marry a Muslim man to do further research about her rights and obligations under Islamic law. She has less protection under Islamic Shari’a than U.S. law.

 

MUSLIM WOMEN ARE PROHIBITED FROM MARRYING NON-MUSLIM MEN

Under Islamic Shari’a, a non-Muslim man is not allowed to marry Muslim woman. The only way he can do so is to convert to Islam. The children of such union are Muslims, and all Muslims are, by virtue of the Islamic Shari’a, prohibited from leaving Islam. In certain Muslim countries, the penalty for leaving Islam is death by execution.

 

 

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

 

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children, Hindu marital disputes in U.S. courts, and Iran divorce in USA.

  • Professor of Middle East Constitutional and Islamic law,
  • Expert Consultant on Islamic divorce in US Courts and Canada,
  • Expert Consultant on Hindu divorce in U.S. courts,
  • Expert Consultant on Iranian Shi’a divorce in USA,
  • Expert Consultant on Islamic finance.

Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S., Hindu divorces, and Iranian marital conflicts.

Taught Islamic Finance for MBA program at the University of Liverpool, United Kingdom.

Travelled extensively to: Saudi Arabia, Kuwait, Bahrain, Qatar, Egypt, Sudan, the United Arab Emirates, Jordan, Syria and Palestine.

Wrote many articles on Islamic and Hindu divorce in USA, custody of children in the Middle East and Central Asia; and on abduction of children to Muslim countries;

Speaks, reads and writes several languages including Arabic, English, French and others.

Interviewed by:

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

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

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

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

 

Contact Information:

 

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

For more information the law of marriage, divorce, custody of children and inheritance in the United Arab Emirates, please visit our websites at the following links, where you will find most of our articles:

http://www.uaedivorceinusa.com

http://www.gabrielsawma.blogspot.com

 

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

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

QATARI DIVORCE IN USA

 

By

Prof. Gabriel Sawma

 

INTRODUCTION

Qatar, Arabic قطر is a small Arab state, situated in both the northern and eastern hemispheres and is located in the Middle East or South West Asia. Its sole land border is with Saudi Arabia to the south, with the rest of its territory surrounded by the Persian Gulf. A strait in the Persian Gulf separates Qatar from the nearby island state of Bahrain. Qatar is a peninsula of 4,412 square mile, less than half the size of Rhode Island, with a relatively small population of a little over two million most of whom are foreign nationals working in Qatar. The country is ruled by the al-Thani family since the mid-1800s. The ruler has a title Emir, or Amir, and the country has significant oil and natural gas revenues. During the late 1980s and early 1990s, the Qatari economy was crippled by a continuous siphoning off of petroleum revenues by the Emir, who had ruled the country since 1972. His son, Hamad bin Khalipha al-Thani, overthrew his father in a bloodless coup in 1995. Qatar has the world’s third largest natural gas reserves after Russia and Iran. This enabled the country to attain the third-highest per capita income in the world after Luxembourg and Norway. On June 25, 2013, Emir Hamad bin Khalifa Al Thani handed power to his son Tamim bin Hamad Al Thani.

In July 1999, the Emir appointed a committee to draft a permanent constitution for Qatar. The tenets of the Constitution are based on Qatar’s affiliation to the Arab world and the teaching of Islam. On April 29, 2003, a public referendum approved the new Constitution; it was signed by the Emir on June 8, 2004. The main provisions in the Constitution include Qatar to be an independent sovereign Arab state; its religion is Islam and Islamic Shari’a is the main source of legislation (Article 1). Qatar’s official language is Arabic. The Constitution provides for the establishment of an Advisory Council, two-thirds of whom are elected and the remainder appointed by the Emir. The rule of the state is hereditary, following the male descendants of the Al-Thani family. The heir must be a Muslim of Qatari Muslim mother (Article 8).

 

 

THE JUDICIARY IN QATAR

Qatar has two tiers of judiciary, (1) civilian, (2) religious. The civilian judiciary is divided into two branches: civil and criminal courts.

In 1999, the government of Qatar established the Supreme Judiciary Council. This body presides over all court rulings as well as the appointment, transfer and assignment of judges. The responsibilities and goals of the Council is to assert judicial independence, meet the level of competence as outlined in the law that established the Council, and provide judgment on legal disputes in all levels of the court system.

The Law of Judiciary was issued in 2003; it provides provisions for the courts to do their judicial duties, and divides the courts among three layers: (1) Mahkamat al-Tamyeez (Court of Cassation) –the highest court; (2) Mahkamat al-Istinaf (the Courts of Appeals) which looks into appeals from the lower courts in the area of criminal penalties, criminal, civil, commercial, personal status (family), inheritance, and administrative disputes; (3) Mahkamat al-Ibtidaiyyat (Courts of the First Instance), which adjudicates in the areas of criminal penalties, criminal cases, civil, commercial and personal status (family), inheritance, and administrative disputes. The Supreme Judiciary Council may establish courts of the first instance in other cities around the country.

 

 

MARRIAGES IN THE STATE OF QATAR

Marriage, divorce and custody of children for Muslims living in Qatar are governed by Qanun Al-Ussra (Family Law) of 2006.  The law consists of 301 articles, and is based on the principles of the Hanbali School of Jurisprudence.

According to this law, marriages between Qatari men and non-Qatari women may take please provided that permission is given by a government appointed body called “Marriages Committee.” Muslim weddings take place in Sharia courts, while non-Muslims may marry in a handful of designated churches in Doha.

A Muslim man may marry a non-Muslim woman. However, a Muslim woman is not allowed under Islamic law to marry non-Muslim unless he converts to Islam, otherwise their marriage will not be recognized and she might be subject to prosecution.

Islamic marriage in Qatar follows the Shari law whereby the marriage is a civil contract, in which an offer to marry and acceptance have to be announced in the presence of two Muslim, male witnesses. The law requires that both parties meet fitness requirements, and agree to a “mahr”.

The minimum age for marriage is set at 16 for a girl and 18 for a boy.

 

 

MUSLIM DIVORCE LAW IN QATAR

Muslim divorce in Qatar is regulated by articles 101through 164 of the Family Law of 2006. Accordingly, a divorce many take place in three different ways: (1) Talaq initiated by the husband; (2) mukhalaa, i.e. by consent of both parties; And, faskh, i.e. by judicial decree (Article 101).

Article 109 allows a divorce initiated by the husband to be delegated to a second party or to the wife. When the husband initiates divorce, he has to do that in the presence of a judge. The judge will do his best for reconciliation before he records the divorce, (Article 113).  After recording the divorce, the judge assigns the the amount of ‘nafaqa’ (similar to alimony) during the period of ‘iddat’ (i.e., three menstrual cycles). He will also assign the amount of ‘nafaqa’ for the children (i.e., child support), (Art. 114).

Another form of terminating the marital status is by both parties agreeing to a “Khul” divorce, in which the wife relinquishes her financial rights and the “mahr”, (Art. 122).

Articles 123 to 164 of the Family Law set out the grounds on which the wife may seek “Faskh” (i.e. terminating the marriage by separation) in situations where the husband is found to be inept, not aid his wife maintenance or has been missing for more than a year. In such situation, the judge will try reconciliation first; once reconciliation fails, then divorce is granted.

 

 

RECOGNITION OF FOREIGN DIVORCE JUDGMENTS BY STATE COURTS

A foreign divorce judgment is recognized generally in a state in the U.S. on the basis of comity, Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment of divorce it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

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

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to assist clients and attorneys by submitting opinions and affidavits to State and Federal Courts, and to Immigration Boards throughout the United States on cases involving Islamic marriage, Islamic divorce and custody of children. Some of these cases have been reported by major U.S. law journals.

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

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

 

 

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

 

Gabriel Sawmais a lawyer with Middle East Background, and a recognized authority on Islamic law of marriage, divorce, and custody of children, Professor of Middle East Constitutional Law and Islamic Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.

Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.

Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.

Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.

Interviewed by the following news organizations;

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

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

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

 

Professor of Islamic Finance at the University of Liverpool (2012)

 

Lectured on Islamic Sharia at Fairleigh Dickinson University:

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

 

 

CONTACT INFORMATION

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

VISIT OUR WEBSITES AT THE FOLLOWING LINKS:

http://wwwmuslimdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information about the author, see our CV at:

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

Visit us on Facebook at:

https://www.facebook.com/islamicdivorce

IRAQI ISLAMIC DIVORCE IN U.S. COURTS

By

Prof. Gabriel Sawma

 

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

 

Introduction

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

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

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

 

The Legal System in Iraq

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

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

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

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

 

The Law of Divorce in Iraq

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

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

 

Validity of a Divorce Obtained from Iraq

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

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

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

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

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

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

 

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

 

Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law or marriage, divorce, and custody of children. Professor of Middle East Constitutional Law and Islamic law. Expert Consultant on Islamic divorce in U.S. Courts and Canada. Admitted to the Lebanese Bar Association. Former Associate Member of the New York Bar Association and the American Bar Association.

 

Professor Sawma’s experience in Islamic and Middle East laws comes from his study and practice of law in the Middle East. Islamic family law is part of the curriculum at the Lebanese University School of Law from which he graduated with honor.

 

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe and the Middle East. Wrote many affidavits in connection with Islamic divorce to immigration authorities, Federal Courts and State Family Courts throughout the United States. Travelled extensively to Saudi Arabia and the Arabian Gulf region and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad. Speaks Arabic, French, English, and few other languages spoken in the Middle East.

 

Interviewed by:

 

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

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

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

And other News Organizations in the U.S. the Middle East and Europe.

 

Taught Islamic Finance at the University of Liverpool and lectured on Islamic Sharia at Fairleigh Dickinson University: http://view.fdu.edu/default.aspx?id=7899 and abroad.

 

 

Contact Information:

 

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

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

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

 

Visit us on Facebook at, https://www.facebook.com/islamicdivorce