Family Law Issues Affecting American Muslims
"You have to know what the law is, how to approach it, how to speak the language, and how to present Islamic law so that it is not trivialized into something that sells women, or oppresses women."
Dr. Azizah Al-Hibri calls for legal literacy among Muslims in the United States.

There is a real need among the American Muslims to develop what we call legal literacy. There is really not much knowledge among the Muslim population in the United States about the law in the United States. And as a result of that, very often unfair situations could have been avoided had the person known about American law. So I would like to sensitize you to some of the issues relating to family law and tell you what courts have said about them. Essentially these apply in some cases to males and females, not just only to females.

I have cases which happen to involve what is called mut’a marriage [temporary fixed-term marriage practiced by some Shia Muslims - Ed.]. In one case that I will discuss, you might think about it as applying to a situation where a Muslim woman got into a regular marriage, not a mut’a marriage, without a civil marriage license. Why would a Muslim woman have a Muslim wedding ceremony without a civil license? Many reasons. One of them is illustrated in this case. A Muslim couple were married under both religious and civil law, and when they wanted to divorce, they divorced under Islamic law, but the wife found it too costly to pursue a divorce in civil courts. From her point of view, she was divorced, religiously. From the state’s point of view, she was still married. But she went ahead and married someone else Islamically. She could not register it with the state because the state saw her as already married. When the second husband misbehaved, she could not go and enforce her rights in court because she was not legally married in the United States. She could have avoided all that by simply finding a way through legal aid, or some other way in the community, to finalize her civil divorce. There is no reason why she should disadvantage herself.

Marriage

Let me tell you about the case of the mut’a marriage I found. The reason I would like to discuss this case with you is because the court’s reasoning can be detrimental to the woman in regular marriages. When the court does not find a civil marriage document, the first step is to say, all right, there is no legal marriage, but is there a putative marriage--a common law marriage? Then it goes through the reasoning. In this case, this happened in California in 1988. It is called In re the Marriage of Fereshteh R. and Speros Vryonis, Jr. In this case, the couple decided to marry, but because of their professional relationship (they were both professors in the same department) they found it a little bit uncomfortable to announce the marriage. So they went into mut’a marriage--which lasts for a period of time. But also they did not want to announce the marriage to the faculty, and wanted to keep their public relationship as before. The court actually looked at this and said, obviously there is no civil law marriage. They don’t have that. Do they have a putative marriage? The court says, well, if they had gone through the formalities, or if the failure to do so was for some good reason, the court would understand. But is it possible for the wife to have a good faith belief that this is a marriage? If the wife could have a good faith belief, then the court would see it as a putative marriage. Well, a good faith belief must be reasonable. The court asks how could this belief be reasonable, then lists a variety of elements. One of the elements is whether the spouses had separate bank accounts. Now you know in a regular marriage, Muslim women are granted financial independence. In fact I know of cases that I will share with you where the Muslim woman after marriage refused to join her bank account with that of her husband based on her Islamic rights. The court in a Florida case saw that as bad faith on her part--that she is not serious about the marriage. I have seen the papers. The fact that a Muslim woman may refuse to take on her husband’s name, which we know a lot of Saudis and other Muslim women do, that is viewed sometimes by the court as an indication that the marriage is not for real. In this case, for example, they looked at the finances. They said: "Fereshteh did not use [this guy’s] surname and nor did they commingle their finances." This approach could apply to any regular marriage. The court also looked at other things. There was no written document. Well, you know, we’re talking about a situation with no written documents. As a result, the court said that Fereshteh, the woman, could have had no reasonable belief that this is a marriage, and therefore there isn’t even a putative marriage.

I am addressing this because I could see Muslim women for a variety of reasons entering an Islamic marriage contract, without the civil counterpart, keeping their finances apart, keeping their names apart, and the court would look at that, and with other indicia say there is no good faith belief here that there is a marriage. And, by the way if the court says that and you have children, you are stuck, because your children under American law become illegitimate. And that is something very important for Muslim jurists--they did everything to make sure that children have their rights. For example, under Islamic marriage you know you have to have a mahr or a dowry; but even if the husband does not deliver the mahr, that does not make the marriage void. A lot of people are unclear about that. The reason the jurists did this is because they wanted to make sure that the children under the marriage are legitimate. There are other remedies therefore for the woman to get her mahr if the husband does not give it to her.

Divorce

The next thing I would like to move on to is the area of divorce. The area of divorce is very interesting under American law, because essentially judges do not understand what the whole Islamic framework of family law is about. They hear about it from distorted media, and that comes back and affects the rulings. And therefore groups like Karamah and other organizations are going to be active in trying to explain to these judges what is the significance of certain Muslim laws. Also depending on the state that you are in, the court decision is going to be either negative or positive. For example, New York tends to have a better understanding of Islamic law and things like the kitab than other states. So you better be sure which state you’re in and what kind of laws that state has adopted on certain issues.

For example, in the case of Aziz v. Aziz, which is a New York case in 1985, the court looked at the Islamic marriage contract as a pre-nuptial agreement. That’s fine. And then it says, can we enforce a pre-nuptial agreement in this court? The problem was that the pre-nuptial agreement here was a religious agreement, and yet the courts in the United States are secular--they’re not supposed to enforce religious agreements. So the way they handled it in New York, because they’re very familiar with the kutuba, under the Jewish law, was to say that they would enforce the secular aspects of the agreement, rather than throw out the whole agreement. So, things like mahr will be enforced in New York.

Well, let’s see what happened in another jurisdiction, in a case called Dajani v. Dajani. This is an Orange County case, 1988. In Dajani v. Dajani--this is a case of a Jordanian couple--the wife asked for divorce. We have no idea from the record why she asked for divorce. The court looked at her demand and listened to some experts, and decided that she is not entitled to her deferred dowry, mahr muta’akhir. You need to know this because, by the way, even if you’re not living in the U.S., if you go to the U.S. for a few months, there might be a jurisdictional basis for bringing a case in the United States to resolve issues of this sort. Why did the court in Orange country decide that the woman is not entitled to her mahr? Well, because they brought experts on Jordanian law and Muslim law, and we don’t know where these experts came from because, as you know, different people bring different experts. And this is what they said, I’m reading from the case itself. The court says that, based upon the testimony:

the law in existence would be that of the Jordanian or Moslem law, and it finds that if the wife initiates a termination of the relationship [if she asks for divorce], she forgoes the dowry and the court so finds that in this case the wife initiated the termination of the marriage, and common sense and wisdom of Mohamed [sic] would dictate that she forgo the dowry, unless the parties agree otherwise. . . .

This statement, by the way, jurisprudentially, is wrong. First of all, under Islamic law, it’s true that if there is no reason to ask for divorce, the wife forgoes the dowry but, for example, if her husband is harming her, there is the principle of darar (harm) which is in the jurisprudence of Muslims, and she can go and seek a judicial decree of divorce because of harm. That does not release the man from the payment of deferred dowry, or else you would be rewarding him for the darar or the harm he caused the woman. Plus, the parties cannot agree otherwise as to the basic laws of Islam. You cannot supersede Islamic law by agreement. So the court is quite confused here. The court continues:

Public policy considerations are appropriate here.

Look why--now you’ll see the understanding of the court of what an Islamic kitab is. It says:

Pre-nuptial agreements [and it considers a kitab to be a pre-nuptial agreement] which "facilitate divorce or separation by providing for a settlement only in the event of such an occurrence are void as against public policy."

In other words, if you have an agreement that encourages you to divorce, that’s against public policy. The court says that a kitab, an Islamic marriage contract, encourages the woman to divorce. Why? Because that kitab says that if she divorces, she will get money. So, in other words, to get money, she will be motivated to divorce. I would argue that by their logic, a kitab also encourages a woman to commit murder, because she will also get money upon the death of her husband (if she is not discovered). This is ridiculous. But that is exactly what the court says. I’m reading from the court opinion:

Jordanian marriage contract must be considered as one designed to facilitate divorce. . . wife was not entitled to receive any of the agreed-upon sum unless the marriage was dissolved or husband died.

This is profiteering by divorce, the court says, and therefore we will not allow it. And the wife lost her dowry. And we don’t even have an idea, maybe she was entitled to it under Islamic law, but the court did not reach that level of sophistication in its analysis. Muslims ought to start engaging in legal education of the court system in the United States, about Islamic law and the personal status codes of Muslim countries, because we’re getting very weird results.

Mahr--it’s like a diamond ring. It’s a gift to show the intentions of the man towards the woman. Even ancient jurists explained it this way--this is not a new feminist way of looking at it. That’s how Islam always regarded it. Islam never looked at the wife as something that you can buy or sell.

Custody

Let me now give you one other problem that I think is very important for Muslims in the United States to be aware of--and this applies to men too, because men think they’re smart and they can take care of things. Listen to this situation. Islamic jurisprudence historically has allowed, for a variety of reasons, the Muslim man to marry a non-Muslim woman. The Muslim man knows that he is responsible for his children, and the religious upbringing of the children. So many Muslim men in the United States, when they come to marry, have an oral agreement with the non-Muslim wife: "will you bring my children up as Muslims?" and she says, "of course."

Here is the most advanced decision by a court in the United States about such agreements--the most advanced, there are some which are not as advanced. It says:

we note that defendant has failed to produce any written agreement between the parties regarding the religion in which their children were to be instructed. Agreements between divorcing spouses with respect to the religious upbringing of their children will be upheld by the courts only when incorporated into separation agreements, court orders, or signed stipulations. . . . In the absence of a written agreement, the custodial parent . . . may determine the religious training of the child.

Jabri v. Jabri (New York, 1993). So, anything you might do orally, or even in writing ahead of time, which is not a separation agreement or a court order, etc. about the religious upbringing of the children, is not going to count in court. So, what happens is whoever gets custody of the children, will be in charge of the religious upbringing of the children. Who is that in the United States? It is usually the mother. And since Muslim men are allowed to marry non-Muslim women, guess who is bringing up the child? A custodial, non-Muslim mother. And she has the full legal right under American law to educate them in her religion, and the father cannot say a thing. That is something to think about.

And, finally, there are two interesting cases: Malak v. Malak, and Amro v. Iowa District Court for Story County. One is a 1986 case, one is a 1988 case. This relates to the whole society, not just to women--and it affects children. In Malak v. Malak, a Muslim couple traveled and lived around the world, including the United States, Abu Dhabi, and Lebanon. Now, the interesting part about this, is that when the custody case came to the United States, there was already a custody decision in Abu Dhabi and a custody decision in Lebanon. What did the court say about the two custody decisions in the Muslim countries? First of all, let me say that the United States decides, state by state, on custody issues using the standard of the interest of the child. The courts look at what is the best interest of the child and they usually act accordingly. In the United States, they tend to think that the interest of the child is to give custody to the mother. Now, the court got a fax from the American embassy in Abu Dhabi, telling them what an Abu Dhabi court would do--what was the basis of the determination in Abu Dhabi. The embassy cable said that, invariably, the custody will go to the father, because there is an automatic rule which says "at age such and such, it’s to the mother; at age such and such, it’s to the father." The American court said: an automatic rule will not work in the United States, because it does not have anything to do with best interest of the child.

What did it do with the Lebanese decree, which is also a Shari’ah court decree? It took it a lot more seriously. And if our Muslim courts in the Arab world and other parts of the Muslim world know about this, then they can properly formulate their decrees so that they will be enforceable and respected on the principle of comity in American courts. First of all, the court in Lebanon gave notice to the defendant [wife] that there is a case pending against her. It gave her the opportunity to be heard--it gave a temporary injunction for fifteen days, and if she showed up, the court would reopen the case and hear everything. The court in America was impressed by the fact that there was procedural justice. The American court said: "if the Shari’ah court in Lebanon follows our standards of the best interest of the child, and they have procedural justice, then we will be willing to honor it through comity." And so, here is what the court said about the Lebanese court:

the Sharei [sic] court has taken into consideration, while pronouncing the two orders relating to the custody of the children Fadi and Rubah, several human, educational, social, psychologie [sic], material, and moral factors, for the purpose of insuring the best interest of the two children and their present future and on the long run.

And then it gave some factors, for example:

. . . the court has considered the best interest of the two minor children at a long range in respect of avoiding their exposal to shredding, loss, spiritual and physical deficiency resulting from the radical change which will take place in case the children are transferred to a world strange to them in all respects without having their friends or relatives with them .

It goes on for pages. But at least the Shari’ah law went through the considerations that are important for an American court. And therefore, while the Abu Dhabi decree was not even looked at in the United States--it had no procedural justice and it had no best interest of the child standard--the Lebanese Shari’ah court was taken very seriously, and in fact its decision was enforced on the basis of comity. And that tells us how we also have to educate the Muslim courts outside the United States.

There was another case from Gaza, Ali v. Ali (New Jersey, 1994), in which the husband said "in our country, this is how we do custody." And, he not only talked about the Gaza decree--which had no procedural justice and best interest of the child standard--but he tried to make an arrangement with his wife that they will drop the case in American courts, and relegate it to a group of Islamic scholars as to who gets the custody. The American judge heard about that and was incensed, and said that he would not relinquish jurisdiction to a bunch of Muslim scholars. That is, again, the separation of state and religion. What the husband should have done is to go to a court in a Muslim country which would then apply Islamic law using the proper terminology and the procedures which are examined critically in the United States, so that the decree of that Shari’ah court would be enforceable in America.

This is what I wanted to point out to you. It’s not difficult for Muslims to get their rights in American courts, whether men or women. It’s not difficult. You just have to know what the law is, how to approach it, how to speak the language, and how to present Islamic law so that it is not trivialized into something that sells women, or oppresses women, but get to the real, basic jurisprudence. I think we can move forward in the United States if we start speaking about Islam in that fashion.

• This article is the transcript of a speech given by Dr. Azizah Al-Hibri at the NGO Forum, United Nations Fourth World Conference on Women, Huairou, China, September 7, 1995
  
  Dr Al-Hibri is a law professor at the T.C. Williams School of Law, University of Richmond, in Virginia, and a former professor of philosophy. She is the founder and president of Karamah: Muslim Women Lawyers for Human Rights, co-founder of the Muslim American Bar Association, member of the advisory board of the American Muslim Council, and the Virginia State Advisory Committee to the U.S. Commission on Civil Rights. She has edited a number of books, and contributed to them, including books on: logic, women in Islam, and religious and ethical perspectives on population issues. Her recent articles include a critique of personal status codes in select Muslim countries, Islamic constitutionalism, the concept of democracy, and marriage laws in Muslim countries. She practiced law on Wall Street for many years before she returned to teaching in the University.