Professor Gabriel Sawma
The political history of Palestine, including the West Bank, Gaza Strip and East Jerusalem, has produced a particular set of laws and jurisdictions since the beginning of the twentieth century. Until World War I, laws in Palestine were passed and courts established by the Ottoman Empire authorities, then came the British Mandate authorities, then the Jordanian government in the West Bank and East Jerusalem, and the Egyptian administration in the Gaza Strip; then the Israeli occupation authorities and, finally, the Palestinian Authority.
After the establishment of the State of Israel in 1948, the West Bank was annexed by the Hashemite Kingdom of Jordan, which embarked on unifying the laws on the East and West Banks. Under the Jordanian law, the family law for the Muslims is governed by the system of Islamic Shari’a courts that have jurisdiction on the family law, known as the Jordanian Personal Status Law (JPST). This law, which governs the Muslims of Jordan and West bank in the marriage, divorce, custody of children, and inheritance, is based on Islamic Shari’a.
In terms of substantive law, and until 2001, the West Bank courts applied the Jordanian Personal Status Law of 1976, which was replaced by Law of 36, 2010. This article covers the law of divorce by men in the West Bank.
2-Divorce in the Jordanian Personal Status Law
Islamic marriage is presented by the Jordanian law as a contract giving rise to rights and duties specific to each spouse; the husband must pay dower and maintenance to his wife, treat her well and provide a home for her. The marriage can be dissolved extra-judicially by the unilateral repudiation of the husband; by court decision on specific grounds presented by the wife or if the marriage has been concluded irregularly; or by mutual consent involving a final Talaq (termination of the marriage) by the husband in exchange for a financial consideration by the wife (khul’).
In Arabic, the term talaq means termination of the marriage by the husband. Islamic divorce may be given either in the present time, or may be referred to a time in future. It may be pronounced before or after consummation. It may be given by writing as well as verbally, and in Arabic or in a different language.
A divorce pronounced by writing, should be accompanied by the ‘intent’ to divorce. In other words, it must be clear that the husband’s intention is to divorce his wife.
The husband may delegate a third person to divorce his wife, and he may give the wife authority to divorce herself. In the event the wife is given authority by her husband to divorce herself, such a divorce will be considered “ba’in” (irrevocable.) A divorce by the inebriated, astounded, coerced, imbecile and unconscious [man] does not take effect. Each divorce is considered recoverable, except for the one that complements the three pronouncements, as well as the divorce that precedes the consummation of marriage.
3-ISLAMIC LAW IS THE PRIMARY SOURCE OF THE JORDANIAN LAW
Article 2 of the Constitution of Jordan states that “Islam is the religion of the Jordan and Arabic is its official language.” This requires discussion of what constitutes a legal divorce from the view point of the Jordanian law.
Talaq (divorce, repudiation) means dissolution of marriage by the husband. It has to be expressed clearly, ( talaq sarih,) whereby a husband delivers the sentence in direct and simple terms, as if he were to say, “I have divorced you,” or “you are divorce,” or “I divorce my wife”.
Under Islamic law, a husband may delegate his unilateral right to talaq to his wife. This is known as Talaq al-Tafweed (divorce by delegation). He still retains his right of talaq but he also permits his wife to pronounce divorce upon herself. He can also delegate a third person to initiate divorce on his behalf.
The divorce initiated by the husband is effective if he is of sound understanding, and mature age. A divorce by a husband who is under the influence of alcohol, astounded, coerced, imbecile and unconscious shall not take effect. The astounded is the man who lost his discretion due to anger or infatuation or else whereby he does not know what he says.
The divorce that is associated with a number either by utterance or by sign and the divorce that is repeated in a single council shall not effect but one pronouncement of divorce. This means a divorce by husband pronounced three consecutive times in one session, will be considered one divorce only, not three.
4-Recognition of Islamic Palestinian Divorce Obtained from the West Bank
A divorce decree obtained in a foreign jurisdiction by resident of the United States 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 court who issued the foreign divorce judgment must have jurisdiction over the divorce. The courts in the United States will generally accord recognition to the judgments of divorce 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 judgment 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 travelled numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:
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