Monday, January 27, 2014

Yemeni Divorce and U.S. Immigration


By
Professor Gabriel Sawma

When a divorced male immigrant from Yemen remarries in the United States, immigration authorities may conduct more than the usual scrutiny to see that the divorce in Yemen has been done legally in that country. Divorce in Yemen and remarriage in the United States is often looked upon as potentially fraudulent by immigration authorities. A married Yemeni immigrant for example, will come to the U.S., divorce his wife in his country to marry a U.S. citizen, obtain a Green Card, then citizenship, divorce the U.S. citizen and remarries his foreign spouse to bring her here along with the children to the U.S. In a situation like this, a red flag is raised and will most likely initiate investigation by the United States Citizenship and Immigration Service (USCIS). This article covers the law of divorce in Yemen initiated by the husband.

The Judiciary in Yemen
The unification of Southern and Northern Yemen in 1991, made possible for their separate judicial systems to be unified at the level of Supreme Court. A Supreme Judicial Council was established to administer the judiciary by appointing and promoting judges and reviewing policies regarding the structure and function of the Yemeni judicial system. The new system established courts of first Instance, which hear civil, criminal, commercial, and family matters. Decisions of the court of first Instance are appealed to courts of appeal. The Yemeni Supreme Court is the highest court in the land; it rules on the constitutionality of laws, hears cases brought against high government officials, and its decisions are final. In addition to regular courts, a system of tribal courts does exist to deal with conflict involving tribal issues.

Article 2 of the Constitution of the Republic of Yemen states that Islam is the religion of the state, and Arabic is its official language. Article 3 reads that “Islamic Shari’ah is the source of all legislation.” This means that matrimonial cases are governed by the provisions of Islamic law.

The Law of Divorce in Yemen
Divorce in Yemen can be initiated by either the husband or his wife. Article 58 of Section 2 of the Personal Status Law defines divorce as “end of marriage relationship between married couples, it can be achieved either by expressed announcement that leaves no doubt other than it, or by writing which lacks the intention. The divorce can be announced in Arabic or other languages from which, content can be understood, or by means of writing, or by signal which can be understood by people who cannot talk.”

Divorce initiated by a husband can be achieved by simply stating, three times, “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Once a third announcement of divorce is completed, the wife will be considered divorced from her husband. Such a divorce, when it happens, is irrevocable. This means the couple cannot remarry within the Islamic faith unless the wife marries and divorce a second husband. There are other rules for Islamic divorce involving the iddat, or waiting period whereby by the husband divorces his wife using one or two announcements of revocable, or suspended divorce. If he chooses to remarry his wife before the iddat period has expired, he can do so without the need of a new marriage contract. If, however, the iddat period has expired, then a remarriage is possible, but the couple needs to have a new marriage contract.

Validity of a Yemeni Islamic Divorce
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 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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3 comments:

swapna rajesh said...
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swapna rajesh said...
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