Pakistani Islamic Divorce in U.S. Courts
By Prof. Gabriel Sawma
The Law of Divorce in Pakistan
Under the rules of Islamic divorce in Pakistan, a husband can divorce his wife unilaterally, any time, in any place, and, without any obligation to state a reason for divorce.
After the husband announces his divorce statement “I divorce you”, three times (triple talaq), the law mandates that the husband gives a notice in writing to the chairman of the Union Council. The chairman must forward a copy of the notice of divorce (talaq) to the wife.
Non-compliance with these provisions is punishable by imprisonment and/or fine. The law requires that within thirty days of receipt of the notice of divorce, the chairman of the Union Council must establish an Arbitration Council in order to take steps to bring about reconciliation between husband and wife. If reconciliation is failed, a divorce takes effect after the expiration date of ninety days from the day on which the notice of repudiation was first delivered to the chairman.
If the wife is found pregnant during the period following the announcement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. Since the 1980s, and in view of the pressure from Islamic sharia scholars, the practice of the courts in Pakistan is that they validate a unilateral divorce by the husband (triple talaq) by pronouncing “I divorce you” three times, despite a failure to notify the Union Council; this is because Islamic sharia allows a husband to divorce his wife at will, without any provision regarding registration of divorce.
Validity of Pakistani Divorce in USA
U.S. State family courts do not apply Islamic sharia because of violation of the Establishment Clause set in the U.S. Constitution. However, state courts can recognize divorce decrees issued in Pakistan on the basis of a doctrine in private international law known as “Comity”. Such recognition does not entail an obligation on State Courts to agree with the rulings of a foreign divorce judgment in Pakistan. The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a court in that country, obtains an easy divorce by just stating three times: “I divorce you”, or “I divorce my wife”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, records his divorce in Pakistan, authenticate the documents through proper channels, travels back to the United States, serves his wife with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Court.
Recognition of Pakistani Islamic divorce decree by a State court in the United States on the basis of “comity” is not mandatory. State courts may deny recognition and subsequent enforcement if the judge deems the Pakistani law is “repugnant” to a U.S. principle of law. Generally speaking, foreign divorce judgments are recognized on the basis of “comity” if the parties involved receive adequate notices, i.e., service of process, and, generally, provides one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and no prejudice towards either party, and should not violate a strong U.S. principle of law.
An Islamic divorce decree in Pakistan differs substantially with respect to property division and the “mahr” stipulation. Under Pakistani Islamic law of divorce, wives are entitled to the deferred “mahr”, which is, in most cases, much less than what a State court in the U.S. grants the wife. State courts may not recognize a Pakistani divorce decree if the cause of action on which the divorce is based is “repugnant” to “Public Policy”.
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. 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. He wrote 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. He speaks, reads and writes Arabic, French, English, and few other languages spoken in the Middle East.
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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.
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