Friday, February 28, 2014

Supreme Court of Westchester County in New York Recognizes a Divorce from Abu Dhabi

Monday, January 27, 2014



As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend, successfully, clients by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals. Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:


You may also read more  on the treatment of the Islamic mahr agreements in US courts, by visiting our website at http://www.islamicdivorceinusa.com

IRAQI ISLAMIC DIVORCE IN U.S. COURTS


By
Prof. Gabriel Sawma

Married Muslim Iraqi men, with U.S. citizenship, travel to Iraq, obtain a divorce decree from a court of Personal Status and come back to the United States seeking recognition of their Islamic divorce in a state court. This article deals with the legal ramifications of such a divorce decree.

Introduction
Iraq was declared a republic in 1958 after a coup that put an end to the monarchy. Since then, the country was ruled until 2003 by a series of strongmen. The last was SADDAM Husayn who was deposed by the U.S.-led allied coalition invasion of Iraq. He was executed on the first day of Eed al-Adha, December 30, 2006.

Iraq is the region known outside the Islamic world as Mesopotamia, or the land between two great rivers, The Euphrates and Tigris. Iraq’s population is estimated by the IMF to be 21,234.000. (April 2009 IMF est.) In ancient history, Iraq was the country of the earliest civilizations. The ruins of Ur, Babylon, and other ancient cities are situated in Iraq, as is the legendary location of the Garden of Eden.

The dominant ethnic group in Iraq is Muslim Arabs, who account for around three-quarters of the population. There are approximately 17% Kurds, 3% Turkmen, 2% Christians (Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics), and other 1% (Armenians, Circassians, Shabaks, and Mandeans). Among the Muslims of Iraq there are around 53% Shia and 44% Sunni. Arabic is the official language of Iraq, and is spoken and understood by almost all the population. Kurdish is the largest minority language, and has regional language status in Iraqi Kurdistan. Aramaic, once spoken by the whole country, is now only spoken by the Christian minorities of Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics. Azerbaijani is spoken in pockets of nofthern Iraq, and Persian in pockets of southern Iraq. Numerous languages of the Caucasus are also spoken by minorities across the country.


The Legal System in Iraq
Iraq has a mixed legal system that governs both Sunni and Shia jurisprudence for the law applied in Islamic religious courts (Sharia Courts). [Currently, there are efforts in Iraq to enact a code of personal status for the Shia sect]. Islamic family law is ruled by The Iraqi Law of Personal Status 1959; it was based on the report of a commission appointed a year earlier to draft a code of family law for the Muslim community in Iraq.

Christians and Jews are governed by their own family laws. Article 2 of the Constitution of Iraq states that “Islam is the official religion of the State and it is fundamental source of legislation: (A) No law that contradicts the established provisions of Islam may be established”. Section 2 of Article 2 states that “This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.”

The courts of Personal Status hear all cases involving Sunni and Shia Muslims in the areas of marriage, divorce, legitimacy, custody of children and inheritance and waqf (real property owned by Islamic religious organizations such as schools, mosques, etc.) These courts also hear cases involving non-Iraqi Muslims, provided that their country of residence does not apply civil law for their divorce.

Personal Status Courts are available everywhere there are Courts of First Instance in Iraq. Each of these Personal Status Courts is headed by a judge who presides over the Court of the First Instance. Rulings of the Court of Personal Status are appealed to the Court of Appeal. Judgments are given by a majority rule. The grounds for appeal can be either factual or legal and either party may submit further evidence or a request to hear witnesses. Arguments may be oral, or written. It is also possible to introduce additional evidence to the Court of Appeal and/or request that additional witnesses be called to testify in the court.

The court of Cassation is the most supreme judicial body for Personal Status in Iraq. This Court looks into appeals challenging the rulings of the appellate courts. The Court of Cassation consists of several circuits, one of which is the Personal Status Circuit. Judgments of the Court of Cassation are final and binding.


The Law of Divorce in Iraq
Article 37 of Personal Status Law (PSL) states that the husband can perform divorce by pronouncing three repudiations such as saying “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Paragraph 2 of the article considers a three consecutive pronouncement in one session as only one divorce. In other words, the husband may divorce his wife three times on three separate intervals.

A divorce initiated by the husband may be revocable or irrevocable. A revocable divorce will suspend the marriage until three menstrual periods, during which the couple can resume their marital relations. If the three menstrual periods have passed, they can remarry by agreeing to a new marriage contract. The divorce becomes irrevocable if the husband divorces his wife three times on three interval periods. At that time, the wife cannot remarry her husband unless she remarries a second man and get a divorce from him.


Validity of a Divorce Obtained from Iraq
A divorce decree obtained in a foreign jurisdiction is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients successfully by submitting legal opinions and affidvits on issues related to Islamic divorce to State and Federal Courts, and to Immigration Boars throughout the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author wrote an affidavit on behalf of the client. The honorable court agree with our argument and granted the client recognition of a divorce decree obtained from Abu Dhabi in the United Arab Emirates, including custody of the children, and a mahr of $250,000. You may read the judgment on the following link: http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

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 or legal advice on the information provided and related topics, please contact the author.


Gabriel Sawma is a lawyer with Middle East Background, and a recognized authority on Islamic law or marriage, divorce, and custody of children. Professor of Middle East Constitutional Law and Islamic law. Expert Consultant on Islamic divorce in U.S. Courts and Canada. Admitted to the Lebanese Bar Association. Former Associate Member of the New York Bar Association and the American Bar Association.

Professor Sawma’s experience in Islamic and Middle East laws comes from his study and practice of law in the Middle East.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits in connection with Islamic divorce to immigration authorities, Federal Courts and State Family Courts throughout the United States. Travelled numerous times to Saudi Arabia and the Arabian Gulf region and other countries in the Middle East, and wrote extensively on Islamic divorce in USA and abroad.

Interviewed by:

Other News Organizations.

Taught Islamic Finance at the University of Liverpool.


Lectured on Islamic Sharia at Fairleigh Dickinson University: 
http://view.fdu.edu/default.aspx?id=7899.


Contact Information

Tel. (609) 915-2237

Or visit our websites at the following links:

For more information on the author, please see this link:

Monday, January 27, 2014

Supreme Court of Westchester County in New York Recognizes a Divorce from Abu Dhabi


As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend, successfully, clients by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals. Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:


You may also read more  on the treatment of the Islamic mahr agreements in US courts, by visiting our website at http://www.islamicdivorceinusa.com

Yemeni Divorce and U.S. Immigration


By
Professor Gabriel Sawma

When a divorced male immigrant from Yemen remarries in the United States, immigration authorities may conduct more than the usual scrutiny to see that the divorce in Yemen has been done legally in that country. Divorce in Yemen and remarriage in the United States is often looked upon as potentially fraudulent by immigration authorities. A married Yemeni immigrant for example, will come to the U.S., divorce his wife in his country to marry a U.S. citizen, obtain a Green Card, then citizenship, divorce the U.S. citizen and remarries his foreign spouse to bring her here along with the children to the U.S. In a situation like this, a red flag is raised and will most likely initiate investigation by the United States Citizenship and Immigration Service (USCIS). This article covers the law of divorce in Yemen initiated by the husband.

The Judiciary in Yemen
The unification of Southern and Northern Yemen in 1991, made possible for their separate judicial systems to be unified at the level of Supreme Court. A Supreme Judicial Council was established to administer the judiciary by appointing and promoting judges and reviewing policies regarding the structure and function of the Yemeni judicial system. The new system established courts of first Instance, which hear civil, criminal, commercial, and family matters. Decisions of the court of first Instance are appealed to courts of appeal. The Yemeni Supreme Court is the highest court in the land; it rules on the constitutionality of laws, hears cases brought against high government officials, and its decisions are final. In addition to regular courts, a system of tribal courts does exist to deal with conflict involving tribal issues.

Article 2 of the Constitution of the Republic of Yemen states that Islam is the religion of the state, and Arabic is its official language. Article 3 reads that “Islamic Shari’ah is the source of all legislation.” This means that matrimonial cases are governed by the provisions of Islamic law.

The Law of Divorce in Yemen
Divorce in Yemen can be initiated by either the husband or his wife. Article 58 of Section 2 of the Personal Status Law defines divorce as “end of marriage relationship between married couples, it can be achieved either by expressed announcement that leaves no doubt other than it, or by writing which lacks the intention. The divorce can be announced in Arabic or other languages from which, content can be understood, or by means of writing, or by signal which can be understood by people who cannot talk.”

Divorce initiated by a husband can be achieved by simply stating, three times, “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Once a third announcement of divorce is completed, the wife will be considered divorced from her husband. Such a divorce, when it happens, is irrevocable. This means the couple cannot remarry within the Islamic faith unless the wife marries and divorce a second husband. There are other rules for Islamic divorce involving the iddat, or waiting period whereby by the husband divorces his wife using one or two announcements of revocable, or suspended divorce. If he chooses to remarry his wife before the iddat period has expired, he can do so without the need of a new marriage contract. If, however, the iddat period has expired, then a remarriage is possible, but the couple needs to have a new marriage contract.

Validity of a Yemeni Islamic Divorce
A divorce decree obtained in a foreign jurisdiction by resident of the United States is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits on issues related  to Islamic divorce to State and Federal Courts, and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

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 or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


Contact Information:
Tel. (609) 915-2237

Or visit our websites at the following links:

For more information on the author, please see this link:

Wednesday, January 22, 2014

Palestinian Islamic Divorce of West Bank in USA


By
Professor Gabriel Sawma

1-Introduction
The political history of Palestine, including the West Bank, Gaza Strip and East Jerusalem, has produced a particular set of laws and jurisdictions since the beginning of the twentieth century. Until World War I, laws in Palestine were passed and courts established by the Ottoman Empire authorities, then came the British Mandate authorities, then the Jordanian government in the West Bank and East Jerusalem, and the Egyptian administration in the Gaza Strip; then the Israeli occupation authorities and, finally, the Palestinian Authority.

After the establishment of the State of Israel in 1948, the West Bank was annexed by the Hashemite Kingdom of Jordan, which embarked on unifying the laws on the East and West Banks.  Under the Jordanian law, the family law for the Muslims is governed by the system of Islamic Shari’a courts that have jurisdiction on the family law, known as the Jordanian Personal Status Law (JPST). This law, which governs the Muslims of Jordan and West bank in the marriage, divorce, custody of children, and inheritance, is based on Islamic Shari’a.

In terms of substantive law, and until 2001, the West Bank courts applied the Jordanian Personal Status Law of 1976, which was replaced by Law of 36, 2010. This article covers the law of divorce by men in the West Bank.

2-Divorce in the Jordanian Personal Status Law
Islamic marriage is presented by the Jordanian law as a contract giving rise to rights and duties specific to each spouse; the husband must pay dower and maintenance to his wife, treat her well and provide a home for her. The marriage can be dissolved extra-judicially by the unilateral repudiation of the husband; by court decision on specific grounds presented by the wife or if the marriage has been concluded irregularly; or by mutual consent involving a final Talaq (termination of the marriage) by the husband in exchange for a financial consideration by the wife (khul’).

In Arabic, the term talaq means termination of the marriage by the husband. Islamic divorce may be given either in the present time, or may be referred to a time in future. It may be pronounced before or after consummation. It may be given by writing as well as verbally, and in Arabic or in a different language.

A divorce pronounced by writing, should be accompanied by the ‘intent’ to divorce.  In other words, it must be clear that the husband’s intention is to divorce his wife.

The husband may delegate a third person to divorce his wife, and he may give the wife authority to divorce herself. In the event the wife is given authority by her husband to divorce herself, such a divorce will be considered “ba’in” (irrevocable.) A divorce by the inebriated, astounded, coerced, imbecile and unconscious [man] does not take effect. Each divorce is considered recoverable, except for the one that complements the three pronouncements, as well as the divorce that precedes the consummation of marriage.

3-ISLAMIC LAW IS THE PRIMARY SOURCE OF THE JORDANIAN LAW
Article 2 of the Constitution of Jordan states that “Islam is the religion of the Jordan and Arabic is its official language.” This requires discussion of what constitutes a legal divorce from the view point of the Jordanian law.

Talaq (divorce, repudiation) means dissolution of marriage by the husband. It has to be expressed clearly, ( talaq sarih,) whereby a husband delivers the sentence in direct and simple terms, as if he were to say, “I have divorced you,” or “you are divorce,” or “I divorce my wife”.

Under Islamic law, a husband may delegate his unilateral right to talaq to his wife. This is known as Talaq al-Tafweed (divorce by delegation). He still retains his right of talaq but he also permits his wife to pronounce divorce upon herself. He can also delegate a third person to initiate divorce on his behalf.
The divorce initiated by the husband is effective if he is of sound understanding, and mature age. A divorce by a husband who is under the influence of alcohol, astounded, coerced, imbecile and unconscious shall not take effect. The astounded is the man who lost his discretion due to anger or infatuation or else whereby he does not know what he says.

The divorce that is associated with a number either by utterance or by sign and the divorce that is repeated in a single council shall not effect but one pronouncement of divorce. This means a divorce by husband pronounced three consecutive times in one session, will be considered one divorce only, not three.


4-Recognition of Islamic Palestinian Divorce Obtained from the West Bank
A divorce decree obtained in a foreign jurisdiction by resident of the United States is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. The court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce rendered in a foreign country under the doctrine of comity, which is the equivalent of full faith and credit given by the courts to judgments of a sister state.

Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment it will recognize and which it won’t. According to this doctrine, a U.S. court has the inherent power to recognize and enforce a foreign judgment of divorce unless there is some defect of jurisdiction shown to be against the public policy of the state. Absent some showing of fraud in the procurement of the foreign country judgment, or that recognition of the judgment would violate a strong public policy of the state, the court may recognize a foreign divorce judgment.

In considering whether public policy of the state is violated, the court should consider the validity of the foreign court’s jurisdiction over the parties and the similarity of the grounds for divorce with those which would be permitted in that state. And, if not, whether the grounds for divorce are repugnant to public policy of the state or not.

As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards in the United States. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:

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 or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


Contact Information:
Tel. (609) 915-2237

Or visit our websites at the following links:

For more information on the author, please see this link: