Egyptian Islamic Divorce in USA

 

By

Prof. Gabriel Sawma

 

Chronology

The family laws for the Muslim community in Egypt are not codified in one law; they are scattered among different laws.  Islamic law, however, remained the most important element to family law. The law of Qadri Basha from the 19th century, which was based on the Hanafi School of Sunni  Jurisprudence, although never officially adopted as legislation, it served, nevertheless, as the major reference for Egyptian Shari’a courts, as well as for the courts of other Middle Eastern countries. Since the last quarter of the nineteenth-century, Egyptian legislature enacted reforms in several laws effecting important changes to the law of Qadri Basha.

Among those reforms undertaken were Law No. 25 of 1920 and Law No. 25 of 1929. Under these two laws, the legislators recognized four situations in which a woman could sue for divorce: (1) husband’s failure to provide nafaqa (maintenance); (2) contagious or dangerous disease of the husband; (3) desertion; and (4) maltreatment by the husband. Such reforms were done outside the scope of the strict Hanafi teachings and adopted the more liberal and equitable teachings of the Maliki School. Muslim Egyptian jurists call it “takhayyur”, or selection. For more on Women’s divorce laws in Egypt, see our article on this link:

http://gabrielsawma.blogspot.com/2011/09/islamic-women-divorce-laws-in-egypt.html

 

Islamic Egyptian Divorce Initiated by Men

A Muslim Egyptian man can divorce his wife unilaterally by a simple declaration of divorce made before a civil state officer called ma’dhun. The husband does not have to justify his decision, nor give a valid reason for divorce. The law of 1920 requires the husband’s intention to divorce his wife, and makes the divorce illegal if the husband attaches a condition to his utterance of divorce, or pronounces the divorce under duress. In the older version of the Egyptian family law of Qadri Basha, the code stipulated, in fact and expressly, that “repudiation (i.e. divorce) pronounced even under duress or by joke will produce its legal effects.” The older version likewise considered as valid “any repudiation pronounced by a husband in case of willful drunkenness caused by a forbidden drink.” But that law has been amended. Under the current law in Egypt, it would be illegal for a man to divorce his wife in a state of intoxication, or under duress.

Under the old law, a Muslim Egyptian husband was allowed to divorce his wife by stating three times, consecutively, “I divorce you”. Such a triple divorce made in one time is equivalent, under Law No. 25/1929 to a single, revocable divorce. Thus, to be considered irrevocable, a triple divorce must be done in three separate pronouncements, not in one sitting.

 

Registration of Divorce

Since 1985, the Egyptian law requires the divorce to be registered by a state official called ma’dhun, such registration should be done within thirty days after it was announced. The ma’dhun must inform the ex-wife in person through a process of notification. Before 1985, notification to the wife was not required; she would know about the divorce by someone else, or following the death of her husband and finding herself denied inheritance from his will. As a result, and under those conditions, the children born of the marriage were considered illegitimate. Article 23 of Law No. 100/1985 stipulates that if the husband does not follow these procedures, he will be subject to a prison term of up to six months and/or a fine not to exceed 200 Egyptian Pounds. The ma’dhun also risks imprisonment and fine if he violates these procedures; he can also be dismissed or suspended from his job up to one year.

No special expressions are necessary to constitute a valid divorce; but it is necessary that the words used must indicate clearly the intention of the husband to divorce his wife.

 

Recognition of Islamic Divorce Obtained from Egypt

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, and 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 in their support 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:

http://law.justia.com/cases/new-york/other-courts/2012/2012-ny-slip-op-51875-u.html

 

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 to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:

 

BBC: http://news.bbc.co.uk/2/hi/south_asia/8608878.stm

CNN: http://edition.cnn.com/2009/WORLD/meast/11/11/egypt.divorce/index.html

CBN: http://www.youtube.com/watch?v=fdwReohaIcs

FDU: http://view.fdu.edu/default.aspx?id=7899

 

Contact Information:

Email: gabrielsawma@yahoo.com

Email: gabygms@gmail.com

Tel. (609) 915-2237

 

Or visit our websites at the following links:

http://www.islamicdivorceinuscourts.com

http://www.gabrielsawma.blogspot.com

 

For more information on the author, please see this link:

http://islamicdivorceinusa.com/about-2/