Islamic Family Law

U.S. Department of State

INTERNATIONAL PARENTAL CHILD ABDUCTION

ISLAMIC FAMILY LAW

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THE LEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FOR GENERAL INFORMATION ONLY. QUESTIONS INVOLVING INTERPRETATION OF SPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.

NOTE:

The information contained in this flyer is intended as an introduction to the basic elements of Islamic family law. It is not intended as a legal reference.

It is designed to make clear the basic rights and restrictions resulting from marriages sanctioned by Islamic law between Muslim and non-Muslim partners. For Americans, the most troubling of these restrictions have been:

-- the inability of wives to leave an Islamic country without permission of their husbands;-- the wives' inability to take their children from these countries without such permission; and-- the fact that fathers have ultimate custody of children.

MARRIAGE

In Islam, the act of marriage occurs with the conclusion of the marriage contract. The marriage contract itself is completed by an offer and acceptance, both of which must be made on the same occasion by two qualified parties. If a marriage has been contracted by competent persons in the presence of two witnesses and has been adequately publicized, it is complete and binding. It requires no religious or other rites and ceremonies because in Islamic law formalities have no value insofar as contracts are concerned. Such marriages are conducted only if both parties are willing.

MIXED MARRIAGES

With few exceptions, a Christian or Jew who marries a Muslim and resides in an Islamic country will be subject to provisions of Islamic family law in that country. In these circumstances:

-- Any children born to the wife will be considered Muslim. They will usually also be considered citizens of the father's country.

-- The husband's permission is always needed for the children to leave an Islamic country despite the fact that the children will also have, for example, American citizenship. Foreign immigration authorities can be expected to enforce these regulations. The ability of U.S. consular officers to aid an American woman who wishes to leave the country with her children is very limited.

-- The wife may be divorced by her husband at any time with little difficulty and without a court hearing.

-- At a certain point in age, the children will come under the custody of the father or his family.

-- In Islamic countries, the wife will need the permission of her husband to leave the country.

CHILDREN'S RIGHTS

There are three types of guardianship which are fixed for a child from the time of its birth;

-- The first is guardianship of upbringing, which is overseen by women during the age of dependence. The age at which this period of dependence terminates varies: anywhere from 7 years for a son and 9 for a daughter to 9 and 11, respectively. In the case of divorced parents, it is permissible for a daughter to remain with her mother if the parents agree. But such an agreement cannot be made for a son.

-- The second is the child's spiritual guardianship. The spiritual guardian may be the father or a fullblooded male relative of the father.

-- The third is guardianship over the child's property which usually is carried out by the father.

See also    Muslim divorce in India

Islamic divorce vs. U.S 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.