BASICS OF ISLAMIC FAMILY LAW
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.
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.
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.
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