Sharia and Family Law: Public Policy and Recent Cases

Of course, this is nonsense. See generally, Nothing to Fear: Debunking the Mythical “Sharia Threat” to Our Judicial System, A Report of the ACLU Program On Freedom Of Religion And Belief (2011). Professors, attorneys, judges, and legislators have denounced the anti-Sharia movement, with the American Bar Association taking a prominent position in a 2011 resolution:

RESOLVED, That the American Bar Association opposes federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of foreign or international law. FURTHER RESOLVED, That the American Bar Association opposes federal or state laws that impose blanket prohibitions on consideration or use by courts or arbitral tribunals of the entire body of law or doctrine of a particular religion.

The reality is that American courts have always applied foreign law through the doctrine of comity. Sharia law, as the application of foreign law, is not different. Linguistically, “sharia” means “way” or “road.” As a legal term, “Sharia” refers to “God’s Way” or “God’s Law,” a divine exhortation to all Muslims about the ideal way to behave in this world. See generally Asifa Quraisha-Landes, The Sharia Problem with Sharia Legislation, 41 Ohio N.U. L. Rev. 545, 547–48 (2017). In the area of family law, Sharia law has been considered in many, many cases, most notably in the context of upholding Islamic premarital agreements. As to divorce and property division, as well as child custody, sometimes the court will grant comity to a decision of a Sharia court, and sometimes not. The take-away from these cases may be summed up as follows: Purely religious divorces are not recognized by states because states claim exclusive subject matter jurisdiction over divorce. A divorce may be valid under Islamic law, but if it does not comport with state law and basic notions of due process, the divorce will not be recognized.

Divorce and Property Division

In the recent case of Falah v. Falah, 87 N.E.3d 763 (Ohio Ct. App. 2017), the court was called upon to decide whether to grant comity to a final divorce judgment granted by a Sharia court in Israel. The husband argued that the Ohio court, although exercising jurisdiction over the parties for ancillary matters and despite granting comity to the divorce they obtained in Israel during the pendency of the Ohio proceedings, should have dismissed the case for lack of jurisdiction. He argued that once the Ohio court decided to give effect to the Sharia court’s decision, it should have dismissed the matter instead of addressing issues of spousal support, asset distribution, and debt division. The Ohio court disagreed. The Ohio court first noted that while the court spoke in terms of “comity,” it merely used the Sharia court’s decision as additional evidence that the parties had decided to terminate their marriage and that the husband had already paid the wife a certain sum of money as a result of that decision (i.e., her dowry). The court noted that had the trial court actually given comity to the Sharia court’s decision, its decision would have been error. The important take-away from this case is that a purely religious divorce cannot be granted comity because it is not a secular divorce, the prerequisite to comity.

This same principle, that marriage and divorce must be secular, despite being religious, was also applied in Elahham v. Al-Jabban. 899 N.W.2d 768 (Mich. Ct. App. 2017). A core issue in that case was whether the wife had remarried in Egypt. The trial court entered an order in which it explained that, although there was a strong argument that the wife was married under Sharia law, the court was not bound by the religious law in Egypt. The court explained that the husband did not produce evidence or testimony that the religious law of marriage was also the secular law of marriage in Egypt. The court noted that there was no evidence the plaintiff had recorded the marriage with the Egyptian government. The court, therefore, declined to find that the wife had remarried. The appellate court affirmed. Id. at 785–86.

There are other cases, however, where the use of Sharia law was deemed appropriate, because of the dually secular nature of the judgment. In Aqel v. Aqel, No. 2004-CA-001531-MR, 2005 WL 564191 (Ky. Ct. App., Mar. 11, 2005), the court was called upon “to interpret and apply Islamic domestic relations law in determining whether Mohammad’s marriage to Marie, which took place after he had divorced his Jordanian wife but prior to the expiration of the three-month idda period [the mandatory waiting period before a divorce created by talaq becomes effective], was valid under Kentucky law.” Id. at *1. The court applied Sharia in this context to determine whether the trial court’s findings of fact regarding the interpretation of Islamic law were supported by substantial evidence, and it held that there was substantial evidence in the record from the testimony of both Mohammad and his expert witness to support the finding that the Jordanian divorce was final, at least as to Mohammad, as of the date it was filed.

Child Custody

When considering whether to accept registration of a foreign judgment, the court will review the principles of comity and analyze whether the foreign order complies with the State’s fundamental public policy. A court may reject the foreign custody order if it does not comply. In H.L.K. v. F.A.A., No. 1831 WDA 2014, 2015 WL 5971123 (Pa. Super. Ct., Aug. 28, 2015), a UCCJEA case, the court found that it had jurisdiction over the mother’s complaint for custody, and it declined registration of a Saudi Arabian court’s custody order under the principles of comity. It found that the custody order violated its fundamental public policy. Conversely, if the court finds that applying foreign law will not violate public policy, then comity will be granted. At times this may mean declining accepting jurisdiction and deferring to the foreign Sharia court. In S.B. v. W.A., 959 N.Y.S.2d 802 (N.Y. Sup. Ct. 2012), the wife moved for an order to show cause recognizing, registering, and allowing entry of a judgment of divorce and order of custody entered in Abu Dhabi, a member of the United Arab Emirates (UAE). The husband moved for summary judgment for an order awarding him physical custody of the parties’ children and for an order directing the wife to file an action for divorce in New York. The court refused to find that the custody order would violate the public policy of the state of New York by virtue of the fact that the laws of the UAE are based upon Sharia law. The same result obtained in In re Makhlouf, 695 N.W.2d 503 (Iowa Ct. App., 2005), where the court gave comity to an order of child custody entered in Jordan pursuant to Sharia law.

Mahr Agreement

A mahr agreement “is an agreement based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce.” In re Marriage of Obaidi and Qayoum, 226 P.3d 787, 789 (Wash. Ct. App. 2010). The mahr is often referred to as a deferred dowry agreement. See Badawi v. Alesawy, 24 N.Y.S.3d 683 (2016).

One of the most recent cases to discuss the enforceability of a mahr is Ali v. Syed, No. 342196, 2019 WL 360746 (Mich. Ct. App., Jan. 29, 2019). In that case, the husband argued that because the contract stated on its face that it was made under Sharia law and not under any state law, it provided only for a religious obligation, rather than an enforceable contractual obligation under Michigan law. He also argued that under the ecclesiastical abstention doctrine, the courts of the state of Michigan lack jurisdiction to enforce Islamic marriage contracts. The appellate court disagreed because the trial court clearly stated that it was not applying Shariah law, but, rather, was applying Michigan law to the parties’ contract. “The trial court did not claim any power to decide the parties’ respective religious obligations under the tenets of their faith tradition, but only decided the parties’ respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant’s argument is without merit.” Id. at 5.

Massachusetts also recently addressed the enforceability of a mahr in Ravasizadeh v. Niakosari, 112 N.E.3d 807 (Mass. App. Ct. 2018). The court concluded that many states had enforced mahrs according to neutral principles of contract law. Applying those neutral principles of contract law, not Islamic beliefs or policies, the court found the agreement valid. “We can resolve this case,” the court said, “by using these neutral principles of law, not Islamic beliefs or policies. We apply Washington law to resolve the issues of the formation and validity of the agreement.”

Likewise, in the recent case of In re Marriage of Turfe, 233 Cal. Rptr. 3d 315 (Cal. Ct. App. 2018), the wife filed a petition for marital dissolution, to which the husband responded by requesting annulment of the marriage based on fraud and specific performance of their premarital mahr agreement based on Islamic law. The appellate court held that substantial evidence supported the finding that the wife did not deceive the husband regarding her intentions in entering into their mahr agreement and thus the husband was not entitled to annulment based on fraud and the mahr was enforceable.

In essence, there is no mandatory or persuasive authority preventing the court from incorporating the terms of a religious prenuptial agreement, such a dowry, into a divorce judgment unless the court determines that such an agreement does not comply with the standards required of secular prenuptial agreements. See, e.g., In re Marriage of Dajani, 251 Cal. Rptr. 2d 871 (Cal. Ct. App. 1988).

Conclusion

When an issue of the application of Sharia law presents itself, the fundamental question to ask oneself is whether this judgment or mahr can be enforced according to neutral principles of law. If the action does not depend on ecclesiastical interpretation, then the fact that the judgment or mahr was entered into according to Sharia law should be no impediment.

One must also ask oneself whether the decision sought to be enforced comports with basic notions of due process. All cases in which comity is invoked should be analyzed for due process. For example, in In re Marriage of Basith, No. 180332U, 2019 WL 1749290 (Ill. Ct. App., Apr. 15, 2019), the trial court dismissed the wife’s petition for dissolution of marriage, holding that the parties were already validly divorced in India. The wife argued that the Indian divorce was not entitled to comity because she had not been afforded sufficient due process. The appellate court agreed and held that the Indian divorce did not comport with the basic due process to which the wife was entitled. The fact that the Indian divorce comported with Sharia law did not affect the analysis.

Useful Sources

Articles, Reports, and Other Writings

• ACLU, Nothing to Fear: Debunking the Mythical “Sharia Threat” to Our Judicial System, A Report of the ACLU Program on Freedom of Religion and Belief ACLU Program on Freedom of Religion and Belief (2011), https://www.aclu.org/report/nothing-fear-debunking-mythical-sharia-threat-our-judicial-system.
• American Bar Association, Resolution 113A (Aug. 8–9, 2011), https://www.americanbar.org/content/dam/aba/directories/policy/2011_am_113a.pdf (last visited Sept. 10, 2019). The Resolution contains an excellent summary of anti-Sharia legislation through 2011.
• Blenkhorn, Lindsey E., Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 So. Cal. L. Rev. 189, 202–209 (2002).
• Center for Security Policy, Sharia in American Courts: The Expanding Incursion of Islamic Law in the U.S. Legal System (Apr. 6, 2015), https://www.centerforsecuritypolicy.org/2015/04/06/shariah-in-american-courts-test/.
• Ismail, Aymann & Bloomer, Jeffrey, Sharia Has Come to Texas, Slate, Oct. 13, 2017, http://www.slate.com/articles/video/whos_afraid_of_aymann_ismail/2017/10/inside_a_sharia_law_court_in_texas.html (reporting by certain news sources that “an Islamic court had been established there to decree medieval justice in America”).
• Qaisi, Ghada G., Note, Religious Marriage Contracts: Judicial Enforcement of Mahr Agreements in American Courts, 15 J. L. & Rel. 67 (2000).
• Quraisha-Landes, Asifa, The Sharia Problem with Sharia Legislation, 41 Ohio N.U. L. Rev. 545, 547-48 (2017).
• Shanmugasundaram, Swathi, Anti-Sharia Law Bills in the United States, S. Poverty L. Ctr. (Feb. 5, 2018), https://www.splcenter.org/hatewatch/2018/02/05/anti-sharia-law-bills-united-states.
• Sizemore, Chelsea A., Comment, Enforcing Islamic Mahr Agreements: The American Judge’s Interpretational Dilemma, 18 Geo. Mason L. Rev. 1085 (2011);
• Symeonides, Symeon C., Choice of Law in the American Courts in 2017: Thirty-First Annual Survey, 66 Am. J. Comp. L. 1, 72–73 (2017).

Cases

• Aqel v. Aqel, No. 2004-CA-001531-MR, 2005 WL 564191 (Ky. Ct. App., Mar. 11, 2005).
• Ahmad v. Khalil, 37 N.Y.S.3d 206 (N.Y. Sup. Ct. 2016) (although parties were “divorced” by Sharia court in Lebanon, wife still had the right to equitable distribution in New York).
• Akileh v. Elchahal, 666 So.2d 246 (Fla. Dist. Ct. App. 1996) (forfeiture of payment in the event of adultery violated public policy).
• Al-Mubarak v. Chraibi, No. 101392, 2015 WL 1255794 (Ohio Ct. App., Mar. 19, 2015) (trial court’s findings of cohabitation and reputation as being married, as determined under Sharia law, was evidence of marriage).
• Ali v. Ali, 652 A.2d 253 (N.J. Super. Ct. Ch. Div. 1994) (court found that Sharia custody law employed in Gaza child custody decree was not entitled to comity).
• Ali v. Syed, No. 342196, 2019 WL 360746 (Mich. Ct. App., Jan. 29, 2019).
• Aziz v. Aziz, 488 N.Y.S.2d 123 (N.Y. Sup. Ct. 1985).
• Badawi v. Alesawy, 24 N.Y.S.3d 683 (N.Y. Sup. Ct. App. Div. 2016).
• In re Marriage of Basith, No. 2-18-0332, 2019 WL 1749290 (Ill. App. Ct., April 15, 2019).
• Chaudhary v. Ali, No. 0956-94-4, 1995 WL 40079 (Va. Ct. App. 1995) (nikah not enforceable because it did not comport with rules concerning antenuptial agreements).
• Chaudry v. Chaudry, 388 A.2d 1000 (N.J. App. Div. 1978).
• In re Marriage of Dajani, 251 Cal. Rptr. 2d 871 (Cal. Ct. App. 1988).
• Elahham v. Al-Jabban, 899 N.W.2d 768 (Mich. Ct. App. 2017).
• Falah v. Falah, 87 N.E.3d 763 (Ohio Ct. App. 2017).
• Garba v. Ndiaye, 132 A.3d 908 (Md. Ct. Spec. App. 2016) (application of Sharia law irrelevant).
• Habibi Fahnrich v. Fahnrich, No. 46186/93, 1995 WL 507388 (N.Y. Sup. Ct. July 10, 1995) (terms too vague to be enforced).
• H.L.K. v. F.A.A., No. 1831 WDA 2014, 2015 WL 5971123 (Pa. Super. Ct., Aug. 28, 2015).
• Ilayan v. Allwer, Fam. No. SX 18 CS 2, 2018 WL 5794678 (Super. Ct. U.S. Virgin Islands, Oct. 25, 2018) (divorce granted by a foreign tribunal, the Sharia Court of Ramallah and AI Bireh, Palestinian National Authority; wife domesticated/registered the foreign decree in Hawai’i on January 25, 2018, making it fully enforceable).
• In re Makhlouf, 695 N.W.2d 503 (Iowa Ct. App., Jan. 26, 2005).
• In re Marriage of Obaidi and Qayoum, 226 P.3d 787, 789 (Wash. Ct. App. 2010).
• Ravasizadeh v. Niakosari, 94 Mass. App. Ct. 123 (Mass. App. Ct. 2018).
• S.B. v. W.A., 959 N.Y.S.2d 802 (N.Y. Sup. Ct. 2012),
• Seifeddine v. Jaber, No. 343411, 2019 WL 1645262 (Mich. Ct. App., April 16, 2019) (trial court was entitled to enforce provision of Islamic marriage certificate, entered into by husband and wife, that required husband to pay wife $50,000 upon parties’ divorce; although trial court allowed two imams to present testimony regarding cultural implications of marriage certificate, trial court applied common law regarding contracts, not religious principles or doctrines).
• In re Marriage of Shaban, 88 Cal. App. 4th 398, 105 Cal. Rptr. 2d 863 (Cal. App. Dep’t Super. Ct. 2001) (sadaq unenforceable because it did not satisfy Statute of Frauds).
• In re Marriage of Turfe, 233 Cal. Rptr. 3d 315 (2018).
• Yehia v. Goma, 55 N.Y.S.3d 695 (N.Y. Sup. Ct., Mar. 20, 2017) (court refused to recognize Sharia-based divorce, but used divorce as evidence of the end of the marital relationship).