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.
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; Professor of Middle East Constitutional Law and Islamic law; Expert
Consultant on Islamic and Hindu Divorce in U.S. courts; admitted to the
Lebanese Bar Association of Beirut; Associate Member of the New York State Bar
Association and Associate Member of the American Bar Association. http://www.islamicdivorceinusa.com
Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com
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