Friday, October 14, 2011

Islamic Yemeni Divorce in USA


By Prof. Gabriel Sawma


Historical Background
Yemen is known in antiquity as Arabia Felix or Happy Arabia. It is a mountainous country having more rainfall and more fertile soil than the rest of Arabia and, therefore it was able to support a relatively dense population. During the nineteenth century, the southern part of Yemen became a British colony whereas the northern part of the country came under the rule of the Ottoman Empire. By the end of World War One, North Yemen became independent from the Ottoman Empire, while South Yemen remained under British administration until it declared its independence in 1967.
The relations between the socialist South Yemen and the Western oriented North were strained at time, and conflicts occurred in 1972 and 1978-1979 between the two states. In 1990, both states were united forming the Republic of Yemen.  Between May and July 1994 a new civil war in Yemen started involving the former Northern and Southern Yemeni states. The war resulted in the defeat of the southern armed forces and the flight into exile of many Yemeni Socialist Party leaders and other southern separatists.
Yemen’s population is predominantly Muslim (Sunni and Shia), with a small Jewish, Christian, and Hindu minority. Conversion from Islam to another religion is prohibited for all Muslims, and according to the laws of Yemen, a Muslim person found changing his religion is considered an apostate and subject to the death penalty. Family traditions as well as Yemeni laws may restrict a woman’s freedom of movement. Women are not allowed to obtain a passport without permission from the guardian (Arabic wali). A guardian may prevent a woman from seeking education or employment and may restrict her ability to leave home without his permission.


The Judiciary in Yemen
During the time where both Northern and Southern Yemen were separated, both states had their own judiciaries. But that status changed after the unification in 1990.The judicial system according to the amended constitution of 1994 declares in Article 3 that Islamic sharia shall be the source of all the laws. This means that no other law can be enacted contrary to the Islamic sharia. The constitution establishes three layers of civilian judiciary: (1) a District Court in the main centers of all the districts called the Courts of First Instance (al-mahakim al-ibtida’iyyah) which have original jurisdiction in all civil, criminal, commercial, family and administrative cases; (2) Provincial Courts of Appeals (al-mahakim al-isti’nafiyyah), found in every province as well as in the capital city of Sana. These courts hear cases at the appellate level after the Court of the First Instance has rendered its judgments; (3) The Supreme Court of the Republic (al-mahkama al-‘ulya), which is the highest court of the land.
In 1992, the government of Yemen passed Decree Law No. 20 constituting the Yemeni Law of Personal Status. The law sets the minimum marriage age for both males and females at 15 years. However, discrepancies between legal rights and actual practices are significant. For example, although the legal minimum age of marriage is 15 for males and females, violations of this law are common and early marriage is a serious problem in Yemen.  The law requires a non-virgin woman who has been previously married to pronounce her consent to marriage verbally, while the law allows the silence of a girl or woman considered to be a virgin to signify her approval or consent to marriage. The law requires the wife to provide sexual access to her husband; she is required a permission of her husband to leave the house except to attend to the needs of her parents. Polygamy is legal, although the first wife must be informed if her husband is marrying another; thus a man is allowed to be married to up to four women at one time. The divorce law grants the mother custody until her children are of age (nine for male children and 12 for female) on condition of her maturity, sanity, faithfulness, moral and physical ability or if she remarries.
Islamic sharia, which is the basis of Yemen Personal Status Law allows the husband the unconditional right to divorce his wife using the “triple talaq” formula, which includes his announcement of divorce by stating three times: “I divorce you, I divorce you, I divorce you”; or “I divorce my wife, I divorce my wife, I divorce my wife.” The husband can divorce his wife any time, any place and without having to give any reason, whereas a woman must seek a judicial divorce in which she must present adequate justification in order to have the marriage contract nullified. Article 47 of the amended Personal Status Law provides women with the right to have their marriage contract nullified but only under the condition that the woman’s husband has a defect or dangerous disease, which, according to Yemeni laws includes tuberculosis, leprosy, insanity, or impotence. In all these cases, the court must agree to the separation or to nullification of the marriage contract; the wife alone has no right to separate from her husband on her own.  
Women face additional challenges when travelling abroad. The ‘Passport Law’ does not have gender requirements for issuing a passport, but in practice a woman seeking a passport for travel must have a male sponsor. Personal Status Law No. 20, amended in 1998, requires wives to yield to the authority of their husbands. A wife is obligated to reside with her husband at his residence, no matter what the condition of the residence is.

Recognition of Yemeni Divorce in USA
Many Yemeni Muslim men with U.S. citizenship travel to Yemen in order to obtain a fast track “triple talaq” divorce according to the Personal Status Law of Yemen. They then return to the United States and seek recognition and enforcement of the Islamic Yemeni divorce in the U.S. But can such an ex parte divorce be recognized and enforced?
International law includes the question of right between nations; it also includes question arising under what is usually called private international law, or the conflict of laws, and in particular concerning the right of individuals within the territory and dominion of one nation, by the judgments issued by the courts of other nations. In theory, no law has any effect beyond the limits of the sovereignty of the nation in which the law is enacted. However, such a law can be allowed to be implemented within the dominion of another nation in what is called “the comity of nations.” Our U.S. Supreme Court has ruled in Hilton v. Guyot, (159 US 113 – Supreme Court 1895) that comity , in the legal sense, “is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.” “The recognition of a judgment of a foreign court under the principle of comity is subject generally to two conditions: (1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our own state” (See Fantony v. Fantony, 21 NJ 525, 533, 122 A.2d. 593 ( 1956).
The Fourteenth Amendment’s Due Process Clause, which is applicable to the states, “limits the power of a state court to render a valid personal judgment against a nonresident defendant.” (See World-Wide Volkswagen, supra, 444 U.S. at 291, 100 S. Ct. at 564, 62 L.Ed.2d at 497) (citing Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S. Ct. 1690, 1696, 56 L.Ed.2d 132, 14041, 1978). When a judgment fails to conform to the due process requirements, it is void in the rendering State and is not entitled to full faith and credit elsewhere.

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. 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 to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


Contact Information:
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