By
Prof. Gabriel Sawma
Pakistani men residing in the U.S. travel to their homeland to get divorce decrees from Pakistan. They return back to the United States and seek recognition and enforcement of the Pakistani Islamic divorce decree in a state court. This article deals with the issues related to Pakistani Islamic divorce in U.S. courts.
Following the partition of Pakistan in 1947, the Islamic family law regulating marriage and divorce introduced under the British rule continued to govern until 1961 when the government of Pakistan passed the Muslim Family Law Ordinance (MFLO) to regulate divorce in that country.The Constitution of Pakistan requires all laws to be brought in accordance with the Quran and the Sunnah which constitutes the deeds and sayings of Muhammad, the prophet of Islam. Chapter 3A establishes the Federal Shariat Court. The law of marriage and divorce is governed by the rules of Islamic sharia.The law requires the age of males entering into marriage to be 18, and for females 16; there are penalties for contracting under-age marriages, though under age marriages in Pakistan remain valid regardless of the age limit. As to the guardianship issue, the law requires the application of the Hanafi School of Jurisprudence allowing a woman to contract herself in marriage without the consent of her guardian (wali).
The law requires mandatory registration for marriage; failure to register, however, does not invalidate the marriage. Legal constraints are placed on polygamy by requiring the husband to register his marriage at the local Union Council for permission and notification of existing wife/wives. The chairman of the Union Council establishes an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The law requires that the application must state whether the husband has obtained consent from the existing wife or wives. Violation to these rules is subject to fine and/or imprisonment and the husband becomes bound to make immediate payment of “mahr” to the existing wife or wives. However, if the husband does not obtain consent of his existing wife/wives, the subsequent marriage remains valid regardless of the provisions stated in the law; that is because provisions of Islamic sharia are superior to any other law in Islamic countries.
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.
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”.
An authorization to republish this article is hereby granted by the author, provided the author’s name appears with the article.
Professor Gabriel Sawma is a lawyer with Middle East background. Professor of Middle East Constitutional Law, Islamic sharia, and Islamic economics. Expert consultant on Islamic divorce in U.S. courts; editor in chief of International Law; Instructor on Islamic economics.
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
No comments:
Post a Comment