|
 Islamic
Divorce in New York State
by Prof.
Gabriel Sawma Wednesday, Aug. 24, 2011
609-915-2237
Muslims residing in the State of New York are in a dual situation
when it comes to the implementation of family law. On one hand, they are
governed by the religious law of Islam, known as Islamic sharia, and on
the other hand, the secular family law of the state of New York.
Muslims residing in the State of New York are in a dual situation
when it comes to the implementation of family law. On one hand, they are
governed by the religious law of Islam, known as Islamic sharia, and on
the other hand, the secular family law of the state of New York. To
Muslims, the family law of Islam mandates that marriage and divorce
among Muslims should be done in accordance with the Islamic sharia,
regardless of whether they live in an Islamic or secular country. Civil
divorce decrees obtained by secular courts are not recognized by Islamic
sharia.
Under Islamic law, a Muslim man may marry a non-Muslim woman, whereas a
Muslim woman is prohibited from marrying non-Muslim man. Under these
rules, a non-Muslim woman marrying a Muslim man in compliance with
Islamic sharia is subject to the rules of Islam in the areas of divorce,
child custody and inheritance. In other words, a non-Muslim woman who
gets married to a Muslim man in accordance with Islamic sharia, loses
custody of her children in case of divorce, or in case the husband dies.
Consequently, a non-Muslim woman marrying to a Muslim man is forced,
under the rules of Islamic sharia, to surrender custody of her son when
he reaches the age of seven, and her daughter at the age of nine. She
also prohibited from inheritance. These rules are applied throughout
Muslim countries with a system of sharia-based family law in place.
Marriage Contracts in Islamic Sharia
Under the rules of Islamic sharia, the marriage contract should include:
(1) names and addresses of the couple; (2) name of the guardian of the
bride; (3) names and addresses of two male witnesses; and (4) the amount
of ‘mahr’, or a promise of money or its equivalent to be given by the
husband to the bride. Like any other civil contracts, Islamic marriage
contract should be in the form of offer and acceptance by the parties.
Contrary to the popular notion that mahr is dowry; it is not. A dowry is
what the wife contributes to her marriage while mahr is an obligation on
the husband to pay his future bride. Others call it a ‘gift’; it is not
a ‘gift’ either, because mahr is an obligation on the husband and is
mandated by the Quran. The Quran calls it ‘sadaq’ (Quran 4:4). If no
stipulation of mahr is provided in the marriage contract, the marriage
remains legal and in effect; in such a situation, the “qadi” (judge)
will determine the amount of mahr, which remains a property of the wife
alone. The amount of mahr can be paid partially: up-front (Arabic,
muqaddam), and deferred until divorce or death of the husband (Arabic,
mu’akhar), or it may be prepaid in full before the consummation of the
marriage.
Legal Status of the Mahr Provision in Islamic Law
The most important feature of the mahr provision is that one party makes
an offer and the other can accept or refuse to accept. It is a financial
settlement between the couple in case a divorce occurs or the husband
dies. Although, Muslim women do not personally bargain for the mahr
agreements, and, in almost all of the divorce cases that I have seen so
far, in the Middle East, Europe and the United States, Islamic marriage
agreements involving mahr are negotiated by the representative (Arabic
Wali) of the bride.
In the State of New York, an Islamic marriage contract involving mahr
may be considered premarital agreement for a divorce settlement. In
legal terms, this is called a concurrence of wills or meeting of the
minds of the future husband and his future wife. This also means that
each party from an objective perspective engaged in conduct manifesting
their acceptance, and a contract was formed when both parties met such a
requirement.
The basic rule is that a premarital contract will be interpreted and
enforced in accordance with the law of the state in which it was entered
into. Thus an Islamic marriage contract signed in Egypt according to the
Egyptian law for example, must be interpreted according to the law of
Egypt. The Restatement of the Law Second Conflict of Laws 3d, Chapter 8,
Contracts, is clear about the law for the state chosen by the parties to
a contract. The text of the Restatement reads: “(1) The law of the state
chosen by the parties to govern their contractual rights and duties will
be applied if the particular issues is one which the parties could have
resolved by an explicit provision in their agreement directed to that
issue.”
Looking at both academic and case studies in this area of law, this
article points the reader in the direction of the current trends in the
treatment of mahr in New York State and to address Islamic family law
issues relevant to New York State law and the working of its legal
system. The mahr provision in an Islamic marriage contract has been
interpreted differently in other states. For more information on
treatment of mahr in other states, the individual should seek legal
advice.
Interpretation of the Mahr in New York State
Muslim men and women assert their Islamic legal rights in American
family courts; as a result, Islamic sharia governing their marriages and
divorces becomes an important and complicated part of the American legal
landscape. This leads to a discussion of court cases involving Muslim
marriage and divorce litigations in the State of New York, as well as
whether New York courts will enforce the terms of Muslim marriage
contracts, mainly the mahr provision.
New York courts have jurisdiction over divorce cases within its
territory, with specific focus on premarital contract structured in
accordance with foreign laws. And, various state courts have found no
public policy prohibition in enforcing such agreements. In New York, a
mahr agreement may be interpreted within the context of a contractual
obligation.
In Aziz v. Aziz, the couple entered into a mahr agreement which required
the payment of $5,032, with $32 advanced and $5,000 deferred until
divorce. The New York court ruled that the contract conformed to New
York’s contract requirements, and that “its secular terms are
enforceable as a contractual obligation, notwithstanding that it was
entered into as part of a religious ceremony.” (See Aziz v. Aziz,
N.Y.S.2d at 124).
In this case, the husband argued that the mahr agreement provided in the
Islamic marriage contract could not be enforced because it was a
religious document and was not enforceable as a contract. The wife
responded by stating that although the mahr is a religious stipulation;
its secular terms can be properly enforced by the court. The court
agreed with the wife and ordered the husband to pay the deferred mahr.
The court found that the mahr agreement complied with the necessary
statutory requirements to be recognized and enforceable as a premarital
agreement and held that the secular terms of the mahr agreement were
“enforceable as a contractual obligation, notwithstanding that it was
entered into as part of a religious ceremony.” The court stated that the
mahr agreed to by the couple constituted a secular debt of $5,000 and
ordered the husband to fulfill the terms of the agreement.
The case was based entirely on another New York of Appeals case of
Avitzur v. Avitzur involving a Jewish Ketubah in which a Jewish woman
sued for specific performance to force her ex-husband to appear before a
Beth Din (Jewish Court). Under Jewish Law, only a man can grant a
divorce, or “Get”. Until he does, the woman cannot remarry within the
Jewish faith to anybody. Her children will then be considered
illegitimate. In order that a “Get” may be obtained, both husband and
wife have to appear before the Beth Din. The husband refused to appear,
leaving the woman in a state of marital limbo, making her an “agunah.”
The New York Court of Appeals found that the Jewish ketubah constituted
a valid premarital agreement that could be enforced despite the
religious underpinnings of the agreement.
Conclusion
As the second largest religion, and with the number of Muslims
immigrating to the United State on the rise, American courts are more
frequently looking into Islamic divorce litigations between Muslim
couples. Out of respect to Islamic law and culture, American courts
attempt to apply certain provisions from Islamic sharia, such as the
mahr contract in divorce cases involving Muslim couples. By doing so,
American courts risk involving their arguments with gender and economic
inequalities between Muslim men and women, leaving Muslim women
destitute. The application of mahr agreements in Islamic divorce in the
United States prevents women from exercising their rights to equitable
distribution of marital assets upon divorce. If the courts need to
extend their respect to Islamic law in divorce situations, they should
look into whether the wife had a choice in signing the mahr agreement.
Muslim women do not personally bargain for the mahr agreements, and, in
almost all of the divorce cases that I have seen so far, in the Middle
East, Europe and the United States, the Islamic marriage agreements
involving mahr are negotiated by the representative (Arabic Wali) of the
bride. Other states do not regard the mahr to be a premarital contract.
Individuals seeking information on the treatment of mahr by other states
should seek legal advice from a competent attorney.
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.
Republishing of this article is hereby granted by the author.
Gabriel Sawma is a lawyer with Middle East background; Professor of
Middle East Constitutional Law and Islamic sharia; Expert consultant on
Islamic and Hindu divorce in U.S. courts; Member of the Lebanese Bar
Association of Beirut; Associate Member of the New York State Bar
Association, and Associate Member of the American Bar Association;
Editor in chief of International Law blog: http://www.gabrielsawma.blogspot.com
Email: gabrielsawma@yahoo.com
Tel. (609) 915-2237
www.gabrielsawma.blogspot.com
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