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
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
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
Websites:
Every religion and country have their own laws and acts for marriage and divorce. But whether it is Islam, Hinduism or any other benefit is given to women in mutual consent divorce for less insecurity.
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