Islamic Divorce in U.S. Courts

 By: Prof. Gabriel Sawma
U.S. Courts do not apply Islamic Shari'a law because it violates the Establishment Clause set in the First Amendment of the United States Constitution. State courts apply foreign law when necessary. American Courts do apply foreign law in certain cases involving international principle known as "conflict of Laws," or "Private International Law." This is referred to in U.S. courts as 'the doctrine of comity'.

In the area of Private International Law, 'comity' is a courtesy, amity, and reciprocity by U.S. courts towards court judgments issued in other nations. Such a consideration by U.S. courts does not entail an obligation to agree with the rulings of foreign judgments. There is therefore a distinction between the doctrine of comity and law.

Public International Law can become part of the national law when the country has its signature on that law, Private international Law however, does not have the same level of recognition by U.S. Courts. The issue of comity is raised in Islamic divorce cases when a person who resides legally in the United States travels to a foreign country and obtain a divorce decree from a religious court.

Under Islamic sharia, a divorce can be effective if the husband pronounces what is known as 'triple talaq,' which means, the husband divorces his wife by uttering the words "I divorce you", or "my wife is divorced", three times, in a few minutes. Such an action leaves the wife with nothing more than a nominal deferred 'mahr', an Arabic term for an amount of money, or objects of value that the husband gives to his future bride. Part of the mahr is paid right before the marriage ceremony, called muqaddam, and the rest is called mu'akhar and is paid at the divorce or death of the husband. A deferred mahr in most cases, is less than what U.S. courts order a spouse to pay the other in the distribution of assets associated with divorce. Mahr is mentioned in the Quran, and is an essential element of the Islamic marriage contract.

After getting a foreign Islamic divorce overseas, the husband returns to the United States and serves his wife with divorce papers demanding recognition from a State court on the basis of 'comity'.

Generally, a judgment of divorce issued in a foreign country is recognized in the U.S. on the basis of comity, provided both parties to the divorce receive adequate notice, i.e. service of process and provided 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 litigants, 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, and the parties were present in court. The court may deny the application of comity if the judge deems the foreign law to be 'repugnant' to the 'public policy' of the state in which the case is litigated. In addition, an Islamic divorce differs substantially with respect to property division and child custody.

Republishing this article is hereby granted by provided that the author's name appears.

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 technical or legal advice on the information provided and related topics, please contact the author.
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Article Tags: islamic divorce, muslims

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