By
Prof. Gabriel Sawma
Introduction
Saudi
Arabia is a Kingdom established in 1932 by King Abdul-Aziz. It is the only
country among Muslim nations whose constitution is the Qur’an and the Sunnah,
and whose source of legislation is Islamic Shari’a which constitutes the Qur’an,
the Sunnah, Ijma’ and Qiyass. The Qur’an is regarded by Muslims as the
revelations of God descended in the seventh century on Muhammad, Prophet of
Islam, over a period of twenty-two years in Mecca and then in Medina. Sunnah
consists of the sayings and deeds attributed to the Prophet. Those records of
Prophetic words and deeds were compiled in the middle of the ninth century.
Ijma’ is the unanimous consensus of Muslim jurists of a particular age on a specific
issue. Ijma' derived its authority as a source of law from the Qur'an and Sunnah.
Qiyass is a restricted form of personal reasoning or interpretation; it is reasoning
by analogy whereby a Muslim judge issues his ruling based on illa, the
reason or effective cause that does not violate Islamic Shari’a.
In
addition to the above, Saudi Arabia has another source of legislation in the
form of Royal Decrees, issued by the King. Those decrees are known as rules and
regulations, such as the law of corporations, commercial law, and the law
organizing judiciary and others, all of which must comply with Islamic Shari’a.
Royal Decrees take into consideration local and tribal traditions. There are Four Schools of Jurisprudence in Sunni
Islam: Hanafi, Shafi’i, Maliki, and Hanbali. The dominant School in Saudi Arabia
has been the Hanbali School. This was confirmed by a Royal edict in 1928 by
King Abdul-Aziz.
According
to Sction 2 of Article 5 of the Saudi Judiciary law, cases involving family law
belong to the Personal Status Courts, which were known previously as Al-Mahkamah
al-Jiz iyyah Lil Damaan wal Ankihat (المحكمة الجزئية للضمان والأنكحة).
Divorce Law in
Saudi Arabia
Under
Islamic Shari’a (law), marriage is a contract, entered into by female and male.
The contract contains a provision of Mahr. Once the marriage fails, Muslim law
allows the parties to separate from one another. Divorce by men is generally
referred to as Talaq (repudiation). In Arabic, the verb in past tense is
“tallaqa” means ‘let go’ or ‘released’ from the marriage bond. Divorce
by husband can be take effect by (1) Talaq proper, and (2) Talaq al-tafweed.
The first category and the most comprehensive, Talaq proper, is the
husband’s right to divorce his wife by making a pronouncement that he divorces
his wife and that the marriage is terminated. Talaq al-tafweed is a power of
attorney given by the husband to a person to proceed with divorce on behalf of
the husband.
This
blanket right given to men leaves no doubt that man in Saudi Arabia enjoys more
extensive rights than woman. The right of divorce granted to men must be
pronounced with the intention to divorce, as for example, “Your are divorced,”
or “I divorce you,” or “I have divorced you,” or “I divorce my wife forever and
render her haram (forbidden) for me.” The man can divorce his wife without
citing any cause. He can divorce his wife without her presence, and may not
inform her of his decision. The divorce can be either revocable, which gives
the husband an opportunity to reconsider the decision, or irrevocable, which is
done be the third pronouncement of Talaq.
In
Saudi Arabia, the husband goes to the Personal Status Court and records his
divorce in the presence to two witnesses. He obtains a divorce certificate from
the judge, who is a learned man in Islamic Shari’a. The divorce certificate is
authenticated by the Ministry of Justice in Saudi Arabia. You may see the form
on this link: http://www.moj.gov.sa/ar-sa/Courts/eForms/Pages/frm_Divorce.aspx
The decree
is then authenticated by the Ministry of Foreign Affairs and then by the U.S.
Embassy.
Recognition of
a Saudi Divorce in the U.S. under the Doctrine of Comity
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
the 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. 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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