The validity of Muslim divorces

The basic rule governing the validity of divorces in US courts is lex domicili, that is, the validity of the divorce is dependent upon the law of the domicile of the parties (Reed 1996: 311).

Thus, where it is sought to enforce Muslim divorces conducted outside the United States, the court will look to the law of the foreign state. For example, in a case as old as 1912, Kapigian v. Minassian, the Supreme Court of Massachusetts held as valid the Turkish law of the time which automatically nullified the marriage of a non-Muslim woman to a non-Muslim man upon the wife’s conversion to Islam, and therefore upheld the divorce of a Turkish Muslim woman convert whose husband was then living (and remarried) in the United States.

Of further interest to the Muslim community is the treatment of domestic non-judicial divorces - those accomplished by verbal talaq or through formal approval by a local Muslim imam. These have not fared well. In Shikoh v. Shikoh (¹958), the federal Court of Appeals for the Second Circuit held that a religious divorce granted by a local shaykh failed to constitute a ‘judicial proceeding’, which was required for all legitimate divorces under New York law, and held the divorce invalid. Said the court, lex domicili still applied: ‘where the divorce is obtained within the jurisdiction of the state of New York, then it must be secured in accordance with the laws of that state’. And even where the domicile is a Muslim country, the US courts have demanded a judicial proceeding. Thus, in Selh v. Selh (1985), the Texas Court of Appeals refused to recognize a Ialaq divorce conducted in Kuwait as valid because there was ‘no factual showing [that] any official state body in either India [where they were married] or Kuwait... had actually executed or confirmed the divorce and marriage’.

Looking over these cases as a whole, we might notice that they reflect a basic Western assumption built into the judicial reasoning - i.e.

that a divorce has to be somehow officially recognized by some official body, even in a Muslim country, in order to be legitimate. However, Islamic laws of divorce do not follow this same premise, as private declarations of divorce (talaq) or private mutually-consented divorce agreements (khul') are nevertheless given legal validity in Islamic fiqh. Of course, modern Muslim countries, with variations on classical Islamic law as their legislated codes, often require something more for legal recognition of a divorce, even if only a registration of an extra-judicial divorce with the authorities. The question that has apparently not yet reached a US court is whether it would recognize an extra-judicial talaq or khuΓ divorce if it had been registered with the state as a divorce deed, and therefore perfectly valid as a divorce in that particular country (as is the case in Egypt or Pakistan, for example) but not the subject of a ‘judicial proceeding’ as required by this US case precedent. If the question is ever raised and the court is willing to undertake a study of Islamic law in order to answer it, the argument might be made that the rationale behind the ‘judicial proceeding’ requirement is the due process principle of notice and the right to be heard,⁸⁴ and therefore khul' divorces (obtained extra- judicially but with mutual consent of both parties) should be recognized but talaq divorces (whereby a husband merely declares the divorce with no necessary consent by or even notice to the wife) should not. This level of Islamic law awareness and analysis, however, can only be hoped for, as the cases summarized thus far illustrate the serious misunderstandings of Islamic law upon which some of these cases have been adjudicated.

The divorce cases requiring ‘judicial proceedings’ and other cases where Islamic legal norms are rejected for violation of public policy, tend to reflect the presumption that the secular rules which override religious laws are somehow better, fairer, and reflect more progressive views on women, children and human rights.

Yet, US Muslim scholars might take issue with this presumption, pointing out that in some cases, Islamic law is more progressive and beneficial to women than its secular counterpart. For example, the institution of khul' divorces, allowing a woman to end a marriage (usually for the price of her mahr) without having to go through the long and often painful process of divorce litigation, might be seen as a very useful tool for women. Moreover, the right to a mahr is so central to Muslim consciousness that it is usually the only marital stipulation Muslim women are aware they must include in their marriage contracts. Many see the deferred mahr as meaningful deterrence against a hasty divorce by the husband, and the prompt mahr as a means of ensuring financial security and independence to women who may or may not have an outside income. When a US court strikes down a mahr provision (whether as too religious or against public policy), many Muslim women believe this is a step backwards, not forwards, for women. Many assert that some of these cases do a serious injustice to Muslim women and to the aspects of Islamic law that protect their interests (al-Hibri 1995). Other womanaffirming aspects of Islamic law as yet unaddressed by US courts include the recognition that a woman’s household work is financially compensable, that her property is exclusively her own, and the ability personally to tailor a marriage contract. These are all illustrations of Islamicjurisprudential progressiveness, some of which have only recently been paralleled in the West. Comparing different legal systems, therefore, must be undertaken with care, and it is dangerous to assume that a comity-based recognition of an alternative norm is always a concession to the lesser law Sometimes it may be a step forwards.

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Source: Welchman Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. Zed Books,2004. — 328 p.. 2004

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