Prof. Gabriel Sawma
The modern Kingdom of Saudi Arabia was founded in 1932 by King Abdul-Aziz Al Saud. It earns its position as the location of the holiest shrines in Islam, Mecca and Medina. This status is significant for the preservation of Islamic heritage. Muslims from all over the world turn to Mecca for their five daily prayers. Mecca and Medina are place of pilgrimage for millions of Muslims from around the globe. Saudi Arabia’s Islamic tradition, namely Wahhabi teachings, did not make a smooth transition to modernity. From the beginning, the ruling Saud Family stumbled across several obstacles when they introduced modern technologies to their country, for example, cars, television, computer among other innovations. The rulers found oppositions from conservative religious leaders who were overcome as a result of a combination of force and negotiations. I remember the days when the government in Saudi Arabia decided to build a television station. That decision was met with violence in the country by some ultra-religious elements of the Saudi society.
But the accommodation between the old and new became important after the discovery of huge quantities of oil under the desert of Saudi Arabia. With the discovery of oil in the 1930s, Saudi Arabia became strong economic power. The country became wealthy and was able to build it economic and material infrastructure and transform its desert beyond recognition. I have been visiting Saudi Arabia and the Arabian Gulf region since the early 1970s, and have seen how the country developed to what it is now.
Sources of Islamic Family Law in Saudi Arabia
The Kingdom of Saudi Arabia is ruled by Islamic Shari’a (divine law). To Saudi citizens and to believing Muslims everywhere, Allah (God) revealed his final law to govern all aspects of human life to Muhammad, Prophet of Islam. Those revelations descended on him between 610 and 632 AD; they were collected in a book called the Qur’an. Muslim calls it the “Book of Allah”; they believe to be the actual words of God that Muhammad transmitted literally to mankind.
Two hundred years after the death of Muhammad, (632 AD), Muslim theologians started collecting the words and actions attributed to the Prophet. Those collections are knows as Al-Ahaadith al-Nabawiyya al-Sharifah (divine prophetic sayings). The saying and deeds of the Prophet is called Sunnah. Muslims says that the compilations of the Sunnah were transmitted from generation to generation of reports about the Prophet. Each transmission, accompanied by a list of individuals who narrated it one to the other down through history; this is known as Hadith. Together the Qur’an and Sunnah constitute the divine sources of Islamic Shari’a. These two elements are the most important sources in Saudi family law.
But what if the Qur’an and the Sunnah do not address a legal issue that may arise in the future? Early Muslim theologians created a concept called Ijma’ or consensus. The concept of Ijma’ is an attempt by Muslim theologians to finding solutions, collectively, to a problem or issue, which has not been addressed in the Qur’an and Sunnah. The aim of Ijma’ is to fix issues that had been in dispute among Muslims, and when fixed, they became the third –none-divine- element of Islamic Shari’a. This process of finding solutions to problems that are not address by the Qur’an and Sunnah is called by Muslim theologians ‘science of law’ (‘ilm al-fiqh, علم ألفقه). Thus a fiqh, is an individual attempt by Muslim jurists to address an issue that is not covered by the Qur’an and the Sunnah. This third source of Islamic shari’a is adopted by the Saudi family law.
Muslim developed a fourth source of none-divine Islamic Shari’a of Qiyass. It is a restricted form of personal interpretation, or reasoning by analogy. Mulsim theologians define Qiyass as “establishing the relevance of a ruling in one case to another case because of a similarity in the attribute (reason or cause) upon which the ruling was based.” Qiyass must follow the cause of the problem (Arabic ‘Illah, عِلَّة). Muslim jurists resort to Qiyass often when new cases occur which were not provided for in the Qur’an, in the Sunnah, or in the Ijma’. In other words, they compare one thing with another to see if it is equal or not. For example, if a Muslim asks a jurist about using illegal drugs, which are prohibited for the reason of causing harm to the brain. But how can a Muslim jurist determine the cause? This is done by comparing illegal drugs to prohibition of alcohol in Islamic Shari’a. These both substances intoxicate the brain and, by extension, they both hinder the performance of religious duties.
In addition to these four elements of Islamic law, Saudi family law takes into consideration, tribal traditions. Many Royal decrees take this point into account.
The 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. When a third declaration of divorce is pronounced by the husband, at shorter intervals or immediate succession, the divorce becomes final and the parties are not allowed to remarry unless the wife marries a second man and obtain a final divorce from him.
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 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 to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:
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