Qatari Divorce in U.S. Courts
By
Prof. Gabriel Sawma
INTRODUCTION
Qatar, Arabic قطر is a small Arab state,
situated in both the northern and eastern hemispheres and is located in the
Middle East or South West Asia. Its sole land border is with Saudi Arabia to the
south, with the rest of its territory surrounded by the Persian Gulf. A strait
in the Persian Gulf separates Qatar from the nearby island state of Bahrain.
Qatar is a peninsula of 4,412 square mile, less than half the size of Rhode
Island, with a relatively small population of a little over two million most of
whom are foreign nationals working in Qatar.
The country is ruled by the
al-Thani family since the mid-1800s. The ruler has a title Emir, or Amir, and
the country has significant oil and natural gas revenues. During the late 1980s
and early 1990s, the Qatari economy was crippled by a continuous siphoning off
of petroleum revenues by the Emir, who had ruled the country since 1972. His
son, Hamad bin Khalipha al-Thani, overthrew his father in a bloodless coup in
1995. Qatar has the world’s third largest natural gas reserves after Russia and
Iran. This enabled the country to attain the third-highest per capita income in
the world after Luxembourg and Norway. On June 25, 2013, Emir Hamad bin Khalifa
Al Thani handed power to his son Tamim bin Hamad Al Thani.
In July 1999, the Emir appointed a
committee to draft a permanent constitution for Qatar. The tenets of the
Constitution are based on Qatar’s affiliation to the Arab world and the
teaching of Islam. On April 29, 2003, a public referendum approved the new
Constitution; it was signed by the Emir on June 8, 2004.
The main provisions in
the Constitution include Qatar to be an independent sovereign Arab state; its
religion is Islam and Islamic Shari’a is the main source of legislation
(Article 1). Qatar’s official language is Arabic. The Constitution provides for
the establishment of an Advisory Council, two-thirds of whom are elected and
the remainder appointed by the Emir. The rule of the state is hereditary,
following the male descendants of the Al-Thani family. The heir must be a
Muslim of Qatari Muslim mother (Article 8).
THE JUDICIARY
IN QATAR
Qatar has two tiers of judiciary,
(1) civilian, (2) religious. The civilian judiciary is divided into two
branches: civil and criminal courts.
In 1999, the government of Qatar
established the Supreme Judiciary Council. This body presides over all court
rulings as well as the appointment, transfer and assignment of judges. The
responsibilities and goals of the Council is to assert judicial independence, meet
the level of competence as outlined in the law that established the Council,
and provide judgment on legal disputes in all levels of the court system.
The Law of Judiciary was issued in
2003; it provides provisions for the courts to do their judicial duties, and
divides the courts among three layers: (1) Mahkamat al-Tamyeez (Court of
Cassation) –the highest court; (2) Mahkamat al-Istinaf (the Courts of
Appeals) which looks into appeals from the lower courts in the area of criminal
penalties, criminal, civil, commercial, personal status (family), inheritance,
and administrative disputes; (3) Mahkamat al-Ibtidaiyyat (Courts of the
First Instance), which adjudicates in the areas of criminal penalties, criminal
cases, civil, commercial and personal status (family), inheritance, and
administrative disputes. The Supreme Judiciary Council may establish courts of
the first instance in other cities around the country.
MARRIAGES IN
THE STATE OF QATAR
Marriage, divorce and custody of
children for Muslims living in Qatar are governed by Qanun Al-Ussra
(Family Law) of 2006. The law consists
of 301 articles, and is based on the principles of the Hanbali School of
Jurisprudence.
According to this law, marriages
between Qatari men and non-Qatari women may take please provided that
permission is given by a government appointed body called “Marriages
Committee.” Muslim weddings take place in Sharia courts, while non-Muslims may
marry in a handful of designated churches in Doha.
A Muslim man may marry a non-Muslim
woman. However, a Muslim woman is not allowed under Islamic law to marry
non-Muslim unless he converts to Islam, otherwise their marriage will not be
recognized and she might be subject to prosecution.
Islamic marriage in Qatar follows
the Shari law whereby the marriage is a civil contract, in which an offer to
marry and acceptance have to be announced in the presence of two Muslim, male
witnesses. The law requires that both parties meet fitness requirements, and
agree to a “mahr”.
The minimum age for marriage is set
at 16 for a girl and 18 for a boy.
MUSLIM DIVORCE
LAW IN QATAR
Muslim divorce in Qatar is regulated
by articles 101through 164 of the Family Law of 2006. Accordingly, a divorce
many take place in three different ways: (1) Talaq initiated by the husband;
(2) mukhalaa, i.e. by consent of both parties; And, faskh, i.e.
by judicial decree (Article 101).
Article 109 allows a divorce
initiated by the husband to be delegated to a second party or to the wife. When
the husband initiates divorce, he has to do that in the presence of a judge.
The judge will do his best for reconciliation before he records the divorce,
(Article 113). After recording the
divorce, the judge assigns the the amount of ‘nafaqa’ (similar to
alimony) during the period of ‘iddat’ (i.e., three menstrual cycles). He
will also assign the amount of ‘nafaqa’ for the children (i.e., child
support), (Art. 114).
Another form of terminating the
marital status is by both parties agreeing to a “Khul” divorce, in which
the wife relinquishes her financial rights and the “mahr”, (Art. 122).
Articles 123 to 164 of the Family
Law set out the grounds on which the wife may seek “Faskh” (i.e.
terminating the marriage by separation) in situations where the husband is
found to be inept, not aid his wife maintenance or has been missing for more
than a year. In such situation, the judge will try reconciliation first; once
reconciliation fails, then divorce is granted.
RECOGNITION OF
FOREIGN DIVORCE JUDGMENTS BY STATE COURTS
A foreign divorce judgment is recognized
generally in a state in the U.S. on the basis of comity, Hilton v. Guyot, 159
U.S. 113, 163-64 (1895). Comity means courtesy, respect, or mutual
accommodation; in practical terms, it means that each state can decide for
itself which foreign country judgment of divorce 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 assist clients and
attorneys by submitting opinions and affidavits to State and Federal Courts,
and to Immigration Boards throughout the United States on cases involving
Islamic marriage, Islamic divorce and custody of children. Some of these cases
have been reported by major U.S. law journals.
Following is a landmark case at the
Supreme Court of Westchester County, in which this author submitted an
Affidavit on behalf of a client. The Court agreed with our arguments and
granted our 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 Court at this 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
Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted
to the Lebanese Bar Association. Former Associate Member of the New York State
Bar Association, and former Associate Member of the American Bar Association.
Professor Sawma lectured at the
American Academy of Matrimonial Lawyers (AAML) in New York State and
universities in the U.S., Europe, and the Middle East. He wrote Affidavits and
legal opinions to State Courts, Immigration authorities throughout the United
States.
Travelled extensively to Saudi
Arabia, the Arabian Gulf region, and other countries in the Middle East, and
wrote numerous articles on Islamic divorce in USA and abroad.
Prof. Sawma speaks, reads and
writes, Arabic, English, French and a few other Semitic languages spoken in the
Middle East.
Interviewed by the following news
organizations;
Professor of Islamic Finance at
the University of Liverpool (2012)
Lectured on Islamic Sharia at
Fairleigh Dickinson University:
CONTACT
INFORMATION
Tel. (609) 915-2237
For more information about marriage, divorce and custody of children under Islamic law, please visit our websites at the following links:
For more information about the
author, see our CV at:
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