By
Professor Gabriel Sawma
Citizens from Pakistan divorce their spouses and come to the United States seeking U.S. citizenship. They present their divorce decrees to the Immigration offices. But can these decrees be recognized by the immigration authorities?
In a recent case, I was asked to testify as Expert Consultant on
Islamic divorce in USA, the client has been living in the United States since
1990. He claimed that he was married in Pakistan, but then, his wife obtained a
divorce decree in Pakistan on the basis of desertion and nonpayment of
maintenance for two years. He was able to get the Green Card after he remarried
to an U.S. citizen. At a much later time, the U.S. Citizenship and Immigration
Services sought and obtained a court order to withdraw his Green Card on the
basis that the U.S. Embassy in Pakistan conducted its own investigation and
found out that the divorce in Pakistan was not recorded in the Union Council
Registrar.
The lawyers who worked on this case were able to regain the client’s
Green Card on technicalities. The case raises an important question about the fact
that a divorce obtained by the wife differs from the divorce announced by the
husband. A divorce obtained by the wife requires a judicial act by the Family Court,
while a divorce obtained by the husband is obtained ninety-days after the
husband INFORMS the Union Council of his divorce. In this article, I will be
talking about the divorce obtained from the Family Court for “non-support” by
the husband for two years.
1-Divorce by
Wife:
Historically, divorce in Pakistan has been considered the
prerogative of man. Under the rules of Islamic Shari’a, man has the unilateral
right to divorce his wife, with or without any reason, and does not need a
judicial act. But this notion of male dominance in the matter of divorce has
been reformed overtime. Women in Pakistan now have the ability to initiate
divorce and secure it within a short period of time. One of those reforms is
embedded in The Dissolution of Muslim Marriage Act of 1939. The Act intended to
consolidate and clarify the provisions of Muslim Law relating to suits for
dissolution of marriage by women, and to remove doubts as to the effect of the renunciation
of Islam by a married Muslim woman on her marriage tie. Thus the real purpose
of the Act, was to introduce reforms that would improve the status of women and
grant them some judicial relief by establishing grounds for divorce, most of
which were not recognized by the prevailing Hanafi School of Jurisprudence.
The Hanafi School is one of Four
Schools of Jurisprudence (or Schools of Thought) in Sunni Islam. Under this
School, the husband’s impotence and the option of puberty were the husband’s
discretion, failure to maintain, failure to perform marital obligations, severe
or chronic (physical or mental) defects, and cruelty or maltreatment towards
the wife. . . all of these were recognized as rights to the husband. In addition,
the Act granted a female minor given in marriage by her father or grandfather
before age fifteen the right to repudiate the marriage any time before reaching
eighteen years of age, provided the marriage was not consummated.
The Dissolution of Muslim Marriages
Act of 1939 granted the wife, the right to claim desertion as ground for
divorce if her husband was a missing person. In other words, the reform did
reduce the waiting period for a deserted wife’s divorce from the traditional
ninety years after a husband’s birth to a simple requirement that the
whereabouts of the husband not be known for a four-year period. Furthermore, no
provision was made for divorce in cases of desertion owing to a husband's
unwarranted absence and so the importance of the presence of the husband to
preserve a marriage was not recognized.
The Act decreed that nonsupport for
a period of two years is sufficient grounds for a divorce suit. A grace period
was provided, during which time if the husband could satisfy the court that he
had resumed performing his conjugal duties the decree would be set aside. It is
this provision that applied to the divorce decree obtained by the wife in our case.
2-The Judicial
Act
When a husband stops supporting his wife for a period of two years,
the wife may seek a judicial divorce from the Family Court. Issues pertaining to
the family law are governed exclusively by courts established specifically for
these matters, the Family Courts. The function and jurisdiction of these courts
were established by the West Pakistan Family Courts Act of 1964.
It
is important to keep in mind that where a Family Court passes a decree for the
dissolution of marriage solemnized under the Muslim Law, the Court shall send
by registered post, within seven days of passing such a decree, a certified
copy of the same to the appropriate chairman referred to in Section 7 of the
Family Laws Ordinance of 1961, and upon receipt of such a copy, the chairman
shall proceed as if he had received an intimation of Talaq required to be given
under the said Ordinance. In other words, the Court will communicate directly w
ith the Union Council without a request from the husband or wife.
Notwithstanding
anything to the contrary contained in any other law, a decree for dissolution
of a marriage solemnized under the Muslim Law shall: (a) not be effective until
the expiration of ninety days from the date on which a copy thereof has been
sent under subsection (2) to the chairman; and (b) be of no effect if within
the period specified in clause (a) a reconciliation has been effected between
the parties in accordance with the provisions of the Muslim Family Laws
Ordinance of 1961.
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:
Email:
gabrielsawma@yahoo.com
Tel.
(609) 915-2237
Or
visit our websites at the following links:
For more
information on the author, please see this link:
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