ISLAMIC DIVORCE VS. US DIVORCE

by Jeremy D. Morley

Islamic men who are foreign nationals but American residents often seek to divorce their spouses under the Sharia law prevailing in their country of origin rather than the secular law prevailing in the state of their marital domicile.

Their intent is (a) to obtain an instant divorce by merely speaking certain words, (b) to take advantage of the Islamic “marriage contract” pursuant to which a wife receives nothing more than a nominal “deferred dower” payment upon divorce, (c) to take advantage of child custody laws that discriminate against women and (d) to have the wife labeled as a “bad Muslim.”

A New Hampshire court ruling (In the Matter of Ramadan, ruling dated 2/14/06) shows just how foolish such tactics can be.

The Ramadans had married in Lebanon and had signed a mahr, an Islamic marriage contract. They subsequently lived in Massachusetts, Texas, Egypt and Lebanon, before ultimately settling in New Hampshire. The husband declared “I divorce you” three times in the wife’s presence in New Hampshire. He then telephoned a lawyer in Lebanon, with two witnesses listening, and declared that he had divorced his wife. He promptly went to Lebanon and secured an order from a religious magistrate that he had done so. Meanwhile the wife instituted an action for divorce and ancillary relief in New Hampshire, serving him upon his return from Lebanon.

The husband retained counsel in New Hampshire who informed the court of the prior Lebanese divorce and declared that the husband would ignore the New Hampshire case, which he proceeded to do. The Family Division ultimately entered a divorce decree which adopted in its entirety the terms proposed by the wife. The husband appealed. The Supreme Court of New Hampshire ruled that the Family Division had jurisdiction to enter a divorce decree since the parties were domiciled in New Hampshire. It refused to recognize the Lebanese decree on two separate grounds.

First, a New Hampshire statute (RSA 459:1 (2004)) provides that “a divorce obtained in another jurisdiction shall be of no force or effect in this state … if both parties to the marriage were domiciled in this state at the time the proceeding for the divorce was commenced.” The court held that this statute applies to overseas divorces.

Second, the court held that in any event the principle of comity, pursuant to which courts generally give recognition to foreign divorces, would not apply if application of the policy would violate “a strong public policy of the forum state.” The Court ruled that recognition of an ex parte foreign divorce obtained in a jurisdiction in which neither party is domiciled would cause hardship and would be in derogation of sound public policy.

The husband then asked the appeal court to vary the trial court’s division of marital property and award of custody. The New Hampshire Supreme Court held that he was too late. He had failed to provide the trial court with any of the information that it needed in order to make a more balanced award. He now had to live with the consequences, unbalanced as they might be.

The simple moral: If you choose to live in this country you are subject to the laws of this country.