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 if such a law is not compatible with Islamic Shari'a, 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
285 Madison Avenue,
Madison, NJ 07940-1099.
Taught the
following courses:
·
Arabic
1001, Fall 2007, Spring 2008
·
Arabic
1002, Spring 2008
·
Arab
Culture and Civilization, Fall 2009
·
Arab-Islamic
Culture and Civilization, Fall 2011
·
Near East
as Source of Western Culture
·
Middle
East Constitutional Law – comparative study, including Islamic law of marriage,
divorce, child custody and inheritance
Lecturer on Islamic Finance at the University of Liverpool:
Course taught at Mercer Community College, West Windsor, New
Jersey, Fall 2011.
·
Arabic 101
Professor of Arabic 101 at Princeton Adult School in Princeton, NJ
(2010, 2011, 2012, 2013)
Lecturer on Islamic Shari’a and its sources. See my lecture at
Fairleigh Dickinson University to students and faculty:
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:
Featured on the BBC as, “Expert Consultant on Islamic divorce in
USA.” The interview is posted on BBC’s website:
Featured on CNN as “Professor and Expert Consultant on Islamic
sharia law.” The interview is posted on CNN’s website:
Editor in chief of a blog on International Law, mainly Islamic law
of marriage, divorce and custody of children:
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
Wrote extensively on
International law in the area of the European Union Law. Following are
excerpts:
§ Supremacy of the European Union Law, http://gabrielsawma.blogspot.com/2005/03/supremacy-of-european-union-law.html
§ Limitations on the Effectiveness of Trademark Laws in the
European Union, Case Study, http://gabrielsawma.blogspot.com/2005/04/limitations-on-effectiveness-of.html
§ Doing Business in the Arabian Gulf, http://gabrielsawma.blogspot.com/2005/05/doing-business-in-arabian-gulf-region.html
§ Prohibition of interest in Islamic banking and finance, http://searchwarp.com/swa615826-Prohibition-Of-Interest-In-Islamic-Banking-And-Finance.htm
§ the Scope of Immunity for Heads of States under International
Law, http://searchwarp.com/swa65501.htm
§ The mahr provision
in Islamic marriage contract, http://searchwarp.com/swa521011-The-Mahr-Provision-In-Islamic-Marriage-Contracts.htm
§ Application of Islamic shari’a in U.S. courts, http://gabrielsawma.blogspot.com/2008/06/application-of-islamic-sharia-in-us.html
§ Muslim brotherhood and the Middle East Upheaval, http://miami.indymedia.org/news/2011/04/22114.php
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
[1]
These articles are published and can be accessed on the following websites: http://www.islamicdivorceinusa.com
