The validity of Muslim marriages

The question begins at the beginning - whether a Muslim marriage will be recognized as valid under domestic US law in the first place. As mentioned in Chapter è, this is only a real concern where the couple did not also follow secular state rules in registering their marriage.

When there is no documentation of a marriage at all, Muslim or secular, then the court is faced with the difficult question of determining whether there was a ‘putative’ marriage (or in some states, a ‘common law’ marriage). This is what happened in Vryonis v. Vryonis, a 1988 case in California in which a couple entered into a private mut'a marriage (a marriage for a temporary period of time recog­nized under Shi'i but not Sunni Islamicjurisprudence) with no written documenta­tion or witnesses. The court of appeals rejected the trial court’s inquiry into the wife’s reasonable belief in the validity’ of her marriage under Islamic law, and instead inquired into whether she had a reasonable belief of a valid marriage under California law. In the end, with no evidence of public solemnization, no licence, and no public representations of the couple as a married unit, the court answered the question in the negative. In reading Vryonis, it is interesting to note two elements considered by the court as persuasive against the existence of a real marriage: that (1) the wife kept her own name and (2) maintained a separate bank account. Commenting on this case, Azizah al-Hibri points out that, among Muslims, these facts would carry no persuasive weight against the existence of a marriage because the changing of the wife’s family name on marriage is not required by fiqh, and indeed has not been a characteristic of most Muslim com­munities. And second, Muslim women often keep separate bank accounts to protect their right under Islamic law to exclusive control over their personal property (Muslim Women’s Leagne and Karamah 1995).⁶⁴

Finally, there have been some cases of marriages held invalid by the courts where the Muslim parties are found to have violated basic norms of justice as recognized in the USA. For example, where a Muslim parent forces a minor to marry against his or her will, the courts have brought criminal charges against the parent.'¹³ In such cases, parental cultural defences are unsuccessful and held simply to violate public policy and the constitutional rights of the minor.