IRAQI ISLAMIC DIVORCE IN U.S. COURTS
Prof. Gabriel Sawma
Married Muslim Iraqi men, with U.S. citizenship, travel to Iraq, obtain a divorce decree from a court of Personal Status and come back to the United States seeking recognition of their Islamic divorce in a state court. This article deals with the legal ramifications of such a divorce decree.
Iraq was declared a republic in 1958 after a coup that put an end to the monarchy. Since then, the country was ruled until 2003 by a series of strongmen. The last was SADDAM Husayn who was deposed by the U.S.-led allied coalition invasion of Iraq. He was executed on the first day of Eed al-Adha, December 30, 2006.
Iraq is the region known outside the Islamic world as Mesopotamia, or the land between two great rivers, The Euphrates and Tigris. Iraq’s population is estimated by the IMF to be 21,234.000. (April 2009 IMF est.) In ancient history, Iraq was the country of the earliest civilizations. The ruins of Ur, Babylon, and other ancient cities are situated in Iraq, as is the legendary location of the Garden of Eden.
The dominant ethnic group in Iraq is Muslim Arabs, who account for around three-quarters of the population. There are approximately 17% Kurds, 3% Turkmen, 2% Christians (Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics), and other 1% (Armenians, Circassians, Shabaks, and Mandeans). Among the Muslims of Iraq there are around 53% Shia and 44% Sunni. Arabic is the official language of Iraq, and is spoken and understood by almost all the population. Kurdish is the largest minority language, and has regional language status in Iraqi Kurdistan. Aramaic, once spoken by the whole country, is now only spoken by the Christian minorities of Assyrians, Chaldeans, Syrian Orthodox and Syrian Catholics. Azerbaijani is spoken in pockets of nofthern Iraq, and Persian in pockets of southern Iraq. Numerous languages of the Caucasus are also spoken by minorities across the country.
The Legal System in Iraq
Iraq has a mixed legal system that governs both Sunni and Shia jurisprudence for the law applied in Islamic religious courts (Sharia Courts). [Currently, there are efforts in Iraq to enact a code of personal status for the Shia sect]. Islamic family law is ruled by The Iraqi Law of Personal Status 1959; it was based on the report of a commission appointed a year earlier to draft a code of family law for the Muslim community in Iraq. Christians and Jews are governed by their own family laws. Article 2 of the Constitution of Iraq states that “Islam is the official religion of the State and it is fundamental source of legislation: (A) No law that contradicts the established provisions of Islam may be established”. Section 2 of Article 2 states that “This Constitution guarantees the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice such as Christians, Yazedis, and Mandi Sabeans.”
The courts of Personal Status hear all cases involving Sunni and Shia Muslims in the areas of marriage, divorce, legitimacy, custody of children and inheritance and waqf (real property owned by Islamic religious organizations such as schools, mosques, etc.) These courts also hear cases involving non-Iraqi Muslims, provided that their country of residence does not apply civil law for their divorce.
Personal Status Courts are available everywhere there are Courts of First Instance in Iraq. Each of these Personal Status Courts is headed by a judge who presides over the Court of the First Instance. Rulings of the Court of Personal Status are appealed to the Court of Appeal. Judgments are given by a majority rule. The grounds for appeal can be either factual or legal and either party may submit further evidence or a request to hear witnesses. Arguments may be oral, or written. It is also possible to introduce additional evidence to the Court of Appeal and/or request that additional witnesses be called to testify in the court.
The court of Cassation is the most supreme judicial body for Personal Status in Iraq. This Court looks into appeals challenging the rulings of the appellate courts. The Court of Cassation consists of several circuits, one of which is the Personal Status Circuit. Judgments of the Court of Cassation are final and binding.
The Law of Divorce in Iraq
Article 37 of Personal Status Law (PSL) states that the husband can perform divorce by pronouncing three repudiations such as saying “I divorce you”, or “I divorce my wife”, or “my wife is divorced”. Paragraph 2 of the article considers a three consecutive pronouncement in one session as only one divorce. In other words, the husband may divorce his wife three times on three separate intervals.
A divorce initiated by the husband may be revocable or irrevocable. A revocable divorce will suspend the marriage until three menstrual periods, during which the couple can resume their marital relations. If the three menstrual periods have passed, they can remarry by agreeing to a new marriage contract. The divorce becomes irrevocable if the husband divorces his wife three times on three interval periods. At that time, the wife cannot remarry her husband unless she remarries a second man and get a divorce from him.
Validity of a Divorce Obtained from Iraq
A divorce decree obtained in a foreign jurisdiction is entitled to recognition under the principle of comity, unless the decree offends public policy of the state in whose jurisdiction recognition is sought. 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 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:
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 numerous times to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad.
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