By
Professor Gabriel Sawma
Background
After the collapse of
the Ottoman Empire, following World War One, Jordan was created as an Emirate
of the Transjordan under the British Mandate, which was instituted by the
League of Nations. By 1946, the mandate over Jordan came to an end, and Jordan
was declared the Hashemite Kingdom of Jordan in April 1949 with a constitution
that gave the king legislative and executive powers.
Until 1918, the legal
system of Jordan was part of the Ottoman Empire; it was formed of Sharia courts,
which applied various Islamic schools of jurisprudence, whose interpretation of
the law was greatly influenced by local traditions. This made it possible for
the religious judges to allow tribal traditions (‘urf) to be applied in cases involving personal status. Like the
rest of the states who were ruled by the Empire, the 1917 Ottoman Family Code
was also applied in Jordan and later became the basis of modern Jordanian personal
status law. It follows the Hanafi school of thought in Sunni Islam.
Jordan’s personal
status law for Muslims is based on Islamic sharia, which is summarized as the
unchanging body of laws representing the Quran and prophetic hadiths (sayings
and deeds attributed to the Prophet of Islam). Thus, Islamic sharia is
recognized as part of the Jordanian law, whose application is extended to
personal status law covering marriage, divorce, child custody, inheritance, and
waqf (religious institutions owned by
the Muslim community).
The
Judiciary in Jordan
In 1952, a new
constitution was adopted in Jordan; it declares that Islam is the state
religion; Jordan’s legal system was reconstructed, and the court system divided
between civilian judiciary (mahakin
nizamiyyah), religious courts (mahakim
diniyyah), and special courts established for specific reasons (mahakim khaassah). The religious courts are
subdivided into Christian and Muslim courts in the areas of marriage, divorce,
child custody, inheritance, and waqf.
Royal Decree 41, 1951 divides
religious courts into two bodies: first degree (mahakim al-Bidayah), then one or more second degree courts (mahakim al-Issti’naf). The function of Islamic
courts is stated in the following terms:
“Sharia
courts are responsible for adjudicating personal status among Muslims and to
look into disputes involving the establishment and internal administration of waqfs in the benefit of Muslims…and
problems emanating from a marriage contract registered at the sharia court or
any of its licensed authority, and that in accordance to what is most widely
accepted from the Hanafi Jurisprudence (madhhab
of Abu Hanifah) with the exceptions of any of its special laws.”
The Law of Personal
Status for Muslims, No. 61 of 1976 codified the provisions of Islamic
jurisprudence as it pertains to family relations, from engagement through marriage
dissolution. Thus, personal status law of Jordan deals in disputes involving
Islamic marriage contracts, divorce, child custody, guardianship (wali), inheritance, payment of blood price,
mahr (amount of money or its equivalent
the husband promise to give his bride if she agrees to marry him), spousal
support (nafaqah), and any dispute
that results from the marriage contract.
Jordanian law sets
minimum marriage age of sixteen for men and fifteen for women. Under-age
marriages are, nevertheless, validated under certain conditions. The consent of
the guardian is required for a female under the age of eighteen, but not for a
divorced wife or widow over eighteen. Although the Jordanian law requires the
consent of the bride’s guardian to her first marriage, the judge (qadi) can override the guardian’s
refusal if it has no justification according to the law. Marriages and divorce
are required by law to be recorded in special registrars with the proper
authority under penalty.
Polygamy is allowed in
Jordan in compliance with Islamic sharia; under this rule, a man may marry up
to four wives at the same time, provided that he secures separate dwelling to
each wife. There is no requirement that an existing wife be notified of a
subsequent polygamous marriage by her husband. The law requires the husband to
pay a higher fee for registering a polygamous marriage than that of a
monogamous union.
As for custody of
children, the Hanafi School of jurisprudence mandates that in case of divorce
or death of the husband, children belong to the husband and his family. In such
a situation, the mother’s custody of her son ends when he reaches the age of
seven and her daughter when she reaches the age of nine. The religious court
may extend that period for more years.
Islamic
Divorce Law in Jordan
Divorce is known in
Arabic as talaq. As elsewhere in the countries
who apply Islamic family law, marriage comes to an end when a divorce is
uttered three times by the husband at his own will. He may announce the divorce
in any place of his choosing, with or without a reason, and no judicial
supervision is required. The presence of his wife is not necessary for a
divorce to take effect. The words used by the husband to divorce his wife
should be expressed clearly to indicate a divorce. He can say, for example: “you
are divorced, you are divorced, you are divorced”, or “I divorce you, I divorce
you, I divorce you”, or “my wife is divorced, my wife is divorced, my wife is
divorced”. When uttering these words, the divorce becomes final, and the marriage
will end immediately. Such a divorce is irrevocable; the husband cannot remarry
his wife until she is married legally to a second man and then divorced from
the second husband.
The divorce can be
pronounced orally, by phone, via text message or by any means of communication in
the presence of two male witnesses, or one male and two female witnesses. The
witnesses are required to be Muslims. Under Islamic sharia, the testimony of
one male is equivalent to two female witnesses.
As to women who seek
divorce, the rules are different. A woman may seek judicial divorce under
Islamic sharia if her husband delegated his wife to do so (tafweed el-talaq). This kind of divorce must be provided in the
marriage contract; it implies that the husband gives his wife the authority to
divorce herself under certain specified conditions. The wife may also seek Khul’
divorce, whereby she relinquishes her right to the mahr or to any financial compensation; a divorce may be obtained by
mutual consent of both parties. It should be noted that any kind of divorce
initiated by women has to be done through the judiciary.
Under the rules of
Islamic sharia, the wife may seek judicial divorce if the husband disappeared
for a long period of time, or if he neglects his wife by not providing her with
maintenance, or if he has been sentenced to jail for a long period of time, or if
he was impotent at the time of marriage and continued to be so after the
marriage, or if the husband has been insane for a period of time or is
suffering from leprosy or a virulent disease.
While the husband can
end his divorce within a few minutes by uttering a divorce without the
intervention of the court, the wife, on the other hand, has to go to the
religious court to obtain a divorce (faskh).
Judicial divorce initiated by the wife may
take years to obtain.
Recognition
of Islamic Jordanian Divorce by U.S. Court
Recognition of an ex
parte divorce decree obtained in Jordan is not governed by the Full Faith and
Credit Clause, but rather by the doctrine of “comity”, which may be broadly
defined as the respect which the U.S. family courts render to the legal
proceedings and judgments of other sovereign foreign nations. By ex parte it is
meant that the other spouse neither participated in the divorce proceeding, did
not make an appearance in the proceeding, nor was personally subject to the
jurisdiction of the divorcing court. Divorces obtained in this manner are
generally not recognized by U.S. courts but may be immune from attack by virtue
of the estoppel doctrine. The reason usually given for no recognition is that
jurisdiction for divorce is dependent upon the domicile of at least one of the
spouses in the divorcing state, and the divorce will not be recognized without
jurisdiction over the subject matter. The law to be applied in such cases is
the law of the state of the domicile of the couples at the time the foreign
divorce was obtained.
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.
Gabriel
Sawma is a lawyer with Middle East background; admitted to the Lebanese Bar
Association of Beirut in 1970; Associate Member of the N.Y. State Bar
Association; Associate Member of the American Bar Association. Professor: Middle East Constitutional Law; Professor of Islamic
law. Expert consultant on recognition and enforcement of foreign divorce
judgments in the USA, http://www.islamicdivorceinusa.com
Editor in
Chief of International Law Blog: http://www.gabrielsawma.blogspot.com
Email: gabrielsawma@yahoo.com Email: gabygms@gmail.comTel. (609) 915-2237
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