ByProf. Gabriel Sawma
Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition and enforcement of the Iranian divorce in a state court.
The Family Law in Iran was codified in 1928 and 1935 as part of the Iranian Civil Code. The law set a legal age requirement for marriage, prohibiting the marriage of girls under 13 and requiring court permission for the marriage of those under 15. In 1931, a separate legislation, known as the Marriage Law (qanun-I izdivaj) was enacted; it made marriage subject to state provisions and required the registration of all marriages and divorces in civil registrars. The law of 1931 expanded the grounds on which women could initiate divorce proceedings and required such actions to be brought before civil courts rather than Islamic sharia courts.In 1967, the Family Protection Law (qanun-I himaya-I khanivada) was enacted. This law was considered a departure from the traditional Islamic sharia. It abolished the husband’s rights to extra-judicial divorce and polygamy, and increased the age of marriage to 15 for females and 18 for males. The law established special religious tribunals, headed by judges trained in modern jurisprudence. This law was criticized by Muslim clergy, calling it un-Islamic, and was regarded in violation of Islamic shria principles.In 1975, the Family Protection Law was replaced by another law carrying the same title. This law increased the minimum age of marriage from 15 to 18 for females and from 18 to 20 for males, and provided the courts with discretionary power to decide cases involving child custody, disregarding Islamic sharia provisions.
Professor Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic finance. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law blog; Lecturer on Islamic economics; Author of “The Aramaic Language of the Qur’an”.
Following the Iranian revolution or 1979 under Ayatollah Khomeini (1902-1989), the Family Protection Law was annulled and replaced by the Special Civil Court Act. The new law was entirely enacted in compliance with the Shiite law of ithnai Ashar (Twelvers), the courts are empowered to deal with a whole range of family issues, including divorce. According to the new law, legal marriage for girls plummeted to nine; 15 for boys, and members of the Iranian society were strictly segregated along gender lines. Women were forced to put hijab and were not allowed to appear in public with a man who was not a husband or a direct relation such as brother, father, or son. Women could be stoned to death for adultery, which incidentally, includes being raped. But the reformists under former president, Khatami, allowed single women to study abroad and raised the legal age for marriage from nine to 13 for girls. However, a woman’s testimony in Iran is worth half that of a man in court and in the case of blood money that a murderer’s family is obliged to pay to the family of the victim, females are estimated at half the value of a male.
In mid 2007, the government of Ahmadi Najad began enforcing restrictive laws; women wearing too much make-up and not enough scarf were arrested; they were first banned from attending the country’s popular soccer matches held in public stadiums, but later, under pressure, the president allowed women to attend the games on the ground that their presence would be “morally uplifting” and make the men behave better.
The new law requires marriage and divorce to be registered with the courts; the husband has unconditional right to divorce his wife for which he needs not to give any reason and his wife is almost certain to lose custody of her children. The new law allows the wife to divorce her husband under khul’, and even then she would have to present to the court a power of attorney from the husband allowing her to divorce herself on behalf of her husband. A woman is allowed to seek divorce if her husband was insane, impotent or infertile, absent from home without reason, imprisoned, or unable to support his wife. A woman seeking divorce in Iran must provide the court with supporting evidence to get a divorce decree.
Iranian Muslim couples faced with a divorce situation in the United States, see themselves in a dual process of having to go through civil as well as religious divorce, especially for a Muslim woman; she is prohibited by Islamic sharia from marrying a non-Muslim man unless he converts. Divorced Muslim men and women must obtain an additional religious divorce decree from Muslim authorities should he or she decides to remarry in compliance with sharia; civil divorce alone is not recognized in Islam. Under Islamic sharia, a Muslim woman or man is still considered married even though she or he has obtained a civil divorce. Failure to obtain an Islamic divorce before remarrying, the woman would be considered adulterous and might risk her life if she travels to a country where stoning for adultery is still in place, such as Pakistan, Iran, Sudan, and Saudi Arabia.
American Muslim men with Iranian passports may choose to go back to Iran and obtain a fast track divorce in that country. They get divorce decree by stating three times, “I divorce my wife” in the presence of two male witnesses, show proof of the “mahr” payment, record the divorce in Iran, authenticate the documents, return back to the U.S. and seek recognition of the Iranian divorce in a state court. Divorce obtained in Iran is less expensive to the husband; women get the amount of “mahr” as stipulated in the marriage contract, usually less than what a U.S court may rule on, and the divorce is obtained in a short time, without having to hire an attorney. Islamic divorce does not allow women to receive compensation other than the amount of “mahr” she and her family agreed upon before her marriage.
State courts in the U.S. deal with Islamic divorce obtained overseas on the basis of “comity”, a discretionary doctrine that governs the recognition of divorce rendered by the courts of a foreign country. Although occasionally, courts in England and the United States use the term “international comity” in the meaning of general international law, the more accepted concept of this doctrine defines it as rules of courtesy or goodwill which states observe in their mutual relations without any sense of legal obligations under international law. The desire for a Muslim man to obtain divorce from Iran and have it recognized and enforced in the United States, is generally entitled to recognition if it was valid and effective in Iran, and that Iran was the residence or domicile of both parties or at least one party. In other cases, recognition in the United States of a divorce obtained in Iran will depend on the way the divorce was obtained by mail, by default, by phone, or upon the appearance of both parties. A divorce obtained in Iran should not violate U.S. public policy and cannot be “repugnant” to major principles of U.S. law. State courts have the sole competent to recognize or to deny recognition of a divorce decree obtained in Iran.
Although divorce recognition within the United States is dependent on the concept of domicile, an Iranian divorce may be recognized where both parties appear in the action, even in the absence of domicile. In New Hampshire, a Muslim husband secured a Lebanese divorce, based on Islamic sharia by declaring that he pronounced the divorce of his wife by saying three times “I divorce you” in her presence and by going to Lebanon to consult an attorney and sign divorce papers. The New Hampshire family court refused to recognize the Lebanese ex parte divorce. The court reasoned that the wife would be forced to bear the burdensome cost of an ex parte divorce obtained in a foreign nation where neither party is domiciled.
Professor Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic finance. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law blog; Lecturer on Islamic economics; Author of “The Aramaic Language of the Qur’an”.
Email: gabrielsawma@yahoo.com
Email: gabygms@gmail.com
Tel. (609) 915-2237
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
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