Muslim litigants bring special issues under Shari'a law to secular family courts everwhere. In this article, Abbas Hadjian, a California Certified Family Law Specialist of Iranian origin, examines the issues of child custody, access and child and spousal support under 5 systems of Islamic jurisprudence and 15 different nations. He also provides a closer look at the laws of 5 major Islamic countries, i.e. Bangladesh, Indonesia, Iran, Morocco and Saudi Arabia on all issues and of Egypt on its dowry laws. The research concludes that modern Shari'a law reflects the social, economic and political values and goals of millions of Muslims. In particular, the family law of various countries reflects not only 14 centuries of Shari'a law, but also its more contemporary manifestations. Before representing a Muslim client before a secular court, an attorney must understand the financial and non-financial underpinnings of Shari'a law which may augment, cancel or contradict the family court's decisions. This is a reprint of an article previously published in Los Angeles Lawyer magazine which is reprinted with the permission of the author. Artwork by Hadi Farahani, included with permission of the artist.
Alexandra Leichter, 2009
Jewish law requires that Orthodox Jewish marriages be dissolved not only by civil law but also by a religious bill of divorce called a “Get”. Under Orthodox tradition, the marriage contract cannot be terminated by anyone except the husband, and the Get must be written and offered by the husband. If the parties are divorced under civil law but the husband unilaterally fails to write the Get, the woman is considered still married and is forbidden to remarry or bear children from another relationship. The Get has become a tool used by some Orthodox men to extort money from the wife and/or her family, to force the woman to relinquish her civilly authorized property rights and support, and to force her to relinquish custody of the children. Some options for such women might include bringing a post-divorce action subsequent to the granting of the Get to set aside an unfavorable settlement agreement obtained through coercion or fraud; seeking during the divorce proceeding an award of a larger share of property or additional alimony; bringing a post-divorce action for specific performance of the ketubah (the Jewish marriage contract under which the husband is required to give his wife a Get in order to dissolve the marriage); or, where all else has failed, seeking an annulment in New York State or in Israel, where some rabbis have had some limited success with this under certain circumstances.
Sarah Anticoni, 2009
The so-called Marriage Acts in England and Wales address the prerequisites for valid marriages. Jews and Quakers have exemptions from the Acts’ provisions, and they may marry anywhere in England according to their own marriage customs. Interestingly, such exceptions remain enshrined within primary legislation for two of the smallest minority communities. Muslims are still required to enter into separate civil marriages in addition to the religious marriage contracts. No steps have been taken by Muslims or any other religious minorities to initiate legislative change. Citizens of England and Wales who are married by religious ceremony alone cannot have their marriages dissolved in accordance with English law. The financial impact upon such parties can be significant. In place of the wide range of financial claims available under the Matrimonial Causes Act of 1973, parties married by religious ceremony alone are treated as if they are cohabitants, and the only issues that can be resolved for them under English law are those pertaining to their children and to property held in the parties’ names. According to the religion of the parties, the marriage may still need to be dissolved if either party wishes to remarry in accordance with the usages of that religion. This is particularly important for Muslims and Orthodox Jews. To address the problem of some Orthodox Jewish husbands refusing to grant their wives a religious divorce, a provision in the Matrimonial Causes Act of 1973 provides that the court has the discretion to prevent the granting of a final decree of divorce until there is confirmation that the formalities for dissolving the religious marriage have been completed.
Alexandra Leichter, 2009
American and Canadian courts are sometimes called upon to adjudicate family law issues for litigants married under Islamic law and custom. Islamic marriage contracts usually provide for a dowry payable by the husband to the wife, the larger part of which is deferred and payable upon divorce and which may be the wife’s sole means for post-divorce survival. A husband is required to continue to provide maintenance to his wife during the three-month waiting period following his repudiation of the marriage but generally not thereafter. Islamic marriage contracts are reviewed by American and Canadian courts under neutral principles of law without having to resort to interpreting religious law. Marriage contracts that provide for the dower to be the wife’s sole remedy, coupled with the apparent inadequacy of that amount as compared to the civil property and support rights to which she would otherwise be entitled, are generally struck down. Islamic law almost always grants physical custody of children to the mother until a boy is between two and seven, and until a girl is between nine and puberty. Thereafter, the father, or the father’s male relatives, is granted physical custody. The father automatically has sole “legal” custody (decision-making authority). Under the Uniform Child Custody Jurisdiction and Enforcement Act, adopted by nearly every U.S. state, American courts need not enforce another country’s child custody determination if that other country’s custody law violates fundamental principles of human rights. Although religious courts are sometimes used by religiously observant parties to arbitrate religious divorce issues, women usually fare poorly in this arena in light of Islamic law’s disparate treatment of women.
Anil Malhotra and Ranjit Malhotra, 2009
India, one of the largest democracies in the world, is comprised of multicultural societies practicing a multitude of different religions. The Constitution of India guarantees certain fundamental rights to its citizens including freedom of religion. The Constitution also requires that the state secure a uniform civil code applicable to all communities irrespective of their religion. The current reality, however, is that each of the major religions in India, including Hinduism, Christianity, Parsi, and Islam, has its own set of “personal laws” enacted by The Indian Parliament. To date, a uniform civil code remains only an aspiration. India’s judiciary is relatively proactive in comparison to its legislature, which is slow to respond to societal changes. In the absence of legislative uniformity, judicial verdicts are the only way to keep the momentum towards the ultimate goal of one indigenous Indian law. The courts are lauded for their ability to carve out solutions on a case to case basis. Unfortunately, however, the nation is fraught with harsh realities such as child marriages, spouses deserted by non-resident Indians habitually residing abroad, honor killings in reaction to inter-caste marriages, international abductions of children to India (a non-signatory to the Hague Treaty), dowry-related harassment, and judicially unrecognized religious courts and village councils operating without the authority of law but nonetheless deriving support from community recognition. Even though legislation already exists in contravention of many of the foregoing problems, these evils cannot truly be eliminated until the population is educated about the ills of such malpractices.