QATARI DIVORCE IN U.S. COURTS
Prof. Gabriel Sawma
Qatar, Arabic قطر is a small Arab state, situated in both the northern and eastern hemispheres and is located in the Middle East or South West Asia. Its sole land border is with Saudi Arabia to the south, with the rest of its territory surrounded by the Persian Gulf. A strait in the Persian Gulf separates Qatar from the nearby island state of Bahrain. Qatar is a peninsula of 4,412 square mile, less than half the size of Rhode Island, with a relatively small population of a little over two million most of whom are foreign nationals working in Qatar. The country is ruled by the al-Thani family since the mid-1800s. The ruler has a title Emir, or Amir, and the country has significant oil and natural gas revenues. During the late 1980s and early 1990s, the Qatari economy was crippled by a continuous siphoning off of petroleum revenues by the Emir, who had ruled the country since 1972. His son, Hamad bin Khalipha al-Thani, overthrew his father in a bloodless coup in 1995. Qatar has the world’s third largest natural gas reserves after Russia and Iran. This enabled the country to attain the third-highest per capita income in the world after Luxembourg and Norway. On June 25, 2013, Emir Hamad bin Khalifa Al Thani handed power to his son Tamim bin Hamad Al Thani.
In July 1999, the Emir appointed a committee to draft a permanent constitution for Qatar. The tenets of the Constitution are based on Qatar’s affiliation to the Arab world and the teaching of Islam. On April 29, 2003, a public referendum approved the new Constitution; it was signed by the Emir on June 8, 2004. The main provisions in the Constitution include Qatar to be an independent sovereign Arab state; its religion is Islam and Islamic Shari’a is the main source of legislation (Article 1). Qatar’s official language is Arabic. The Constitution provides for the establishment of an Advisory Council, two-thirds of whom are elected and the remainder appointed by the Emir. The rule of the state is hereditary, following the male descendants of the Al-Thani family. The heir must be a Muslim of Qatari Muslim mother (Article 8).
THE JUDICIARY IN QATAR
Qatar has two tiers of judiciary, (1) civilian, (2) religious. The civilian judiciary is divided into two branches: civil and criminal courts.
In 1999, the government of Qatar established the Supreme Judiciary Council. This body presides over all court rulings as well as the appointment, transfer and assignment of judges. The responsibilities and goals of the Council is to assert judicial independence, meet the level of competence as outlined in the law that established the Council, and provide judgment on legal disputes in all levels of the court system.
The Law of Judiciary was issued in 2003; it provides provisions for the courts to do their judicial duties, and divides the courts among three layers: (1) Mahkamat al-Tamyeez (Court of Cassation) –the highest court; (2) Mahkamat al-Istinaf (the Courts of Appeals) which looks into appeals from the lower courts in the area of criminal penalties, criminal, civil, commercial, personal status (family), inheritance, and administrative disputes; (3) Mahkamat al-Ibtidaiyyat (Courts of the First Instance), which adjudicates in the areas of criminal penalties, criminal cases, civil, commercial and personal status (family), inheritance, and administrative disputes. The Supreme Judiciary Council may establish courts of the first instance in other cities around the country.
MARRIAGES IN THE STATE OF QATAR
Marriage, divorce and custody of children for Muslims living in Qatar are governed by Qanun Al-Ussra (Family Law) of 2006. The law consists of 301 articles, and is based on the principles of the Hanbali School of Jurisprudence.
According to this law, marriages between Qatari men and non-Qatari women may take please provided that permission is given by a government appointed body called “Marriages Committee.” Muslim weddings take place in Sharia courts, while non-Muslims may marry in a handful of designated churches in Doha.
A Muslim man may marry a non-Muslim woman. However, a Muslim woman is not allowed under Islamic law to marry non-Muslim unless he converts to Islam, otherwise their marriage will not be recognized and she might be subject to prosecution.
Islamic marriage in Qatar follows the Shari law whereby the marriage is a civil contract, in which an offer to marry and acceptance have to be announced in the presence of two Muslim, male witnesses. The law requires that both parties meet fitness requirements, and agree to a “mahr”.
The minimum age for marriage is set at 16 for a girl and 18 for a boy.
MUSLIM DIVORCE LAW IN QATAR
Muslim divorce in Qatar is regulated by articles 101through 164 of the Family Law of 2006. Accordingly, a divorce many take place in three different ways: (1) Talaq initiated by the husband; (2) mukhalaa, i.e. by consent of both parties; And, faskh, i.e. by judicial decree (Article 101).
Article 109 allows a divorce initiated by the husband to be delegated to a second party or to the wife. When the husband initiates divorce, he has to do that in the presence of a judge. The judge will do his best for reconciliation before he records the divorce, (Article 113). After recording the divorce, the judge assigns the the amount of ‘nafaqa’ (similar to alimony) during the period of ‘iddat’ (i.e., three menstrual cycles). He will also assign the amount of ‘nafaqa’ for the children (i.e., child support), (Art. 114).
Another form of terminating the marital status is by both parties agreeing to a “Khul” divorce, in which the wife relinquishes her financial rights and the “mahr”, (Art. 122).
Articles 123 to 164 of the Family Law set out the grounds on which the wife may seek “Faskh” (i.e. terminating the marriage by separation) in situations where the husband is found to be inept, not aid his wife maintenance or has been missing for more than a year. In such situation, the judge will try reconciliation first; once reconciliation fails, then divorce is granted.
RECOGNITION OF FOREIGN DIVORCE JUDGMENTS BY STATE COURTS
A foreign divorce judgment is recognized generally in a state in the U.S. on the basis of comity, Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). Comity means courtesy, respect, or mutual accommodation; in practical terms, it means that each state can decide for itself which foreign country judgment of divorce 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 assist clients and attorneys by submitting opinions and affidavits to State and Federal Courts, and to Immigration Boards throughout the United States on cases involving Islamic marriage, Islamic divorce and custody of children. Some of these cases have been reported by major U.S. law journals.
Following is a landmark case at the Supreme Court of Westchester County, in which this author submitted an Affidavit on behalf of a client. The Court agreed with our arguments and granted our 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 Court at this 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 Sharia (law), and Expert Consultant on Islamic divorce in U.S. Courts. Admitted to the Lebanese Bar Association. Former Associate Member of the New York State Bar Association, and former Associate Member of the American Bar Association.
Professor Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and universities in the U.S., Europe, and the Middle East. He wrote Affidavits and legal opinions to State Courts, Immigration authorities throughout the United States.
Travelled extensively to Saudi Arabia, the Arabian Gulf region, and other countries in the Middle East, and wrote numerous articles on Islamic divorce in USA and abroad.
Prof. Sawma speaks, reads and writes, Arabic, English, French and a few other Semitic languages spoken in the Middle East.
Interviewed by the following news organizations.
Professor of Islamic Finance at the University of Liverpool (2012)
Lectured on Middle East Constitutional Law and Islamic Sharia at Fairleigh Dickinson University:
Email: [email protected]
Email: [email protected]