Wednesday, January 15, 2014

Egyptian Divorce and U.S. Immigration



By

Prof. Gabriel Sawma

In Egypt, a Muslim husband can end his marriage unilaterally by a simple willful declaration made before the civil state office (ma’dhun) without the need to justify his decision, nor prove the existence of a valid reason.

Article 3 of Decree-Law No. 25/1929 states that triple repudiation (divorce) must be done in three separate pronouncements, not in one sitting, when the marriage is consumed, or in the same time whether the marriage is consumed or not.

Repudiation is revocable during the woman’s waiting period (‘iddat), meaning during her first three menstrual cycles after repudiation. The marriage is then considered simply suspended. The husband can decide at any time during this term to end the separation, by words or acts. A simple resumption of spousal relations and life together is sufficient. If the wife is pregnant, it is proof of the resumption of spousal relation; as well as her recognition of the fact that she had not finished her ‘iddat period when she was informed that her husband wanted her back. At the end of the ‘iddat period and in the absence of resumption, the spousal relations are dissolved and repudiation becomes irrevocable

Recognition of Egyptian Divorce and U.S. Immigration
A divorce decree obtained in a foreign jurisdiction by resident of the U.S. 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 courts in the U.S. will generally accord recognition to the judgments 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 judgments 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 traveled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


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2 comments:

Ariel Eckblad said...

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