~To watch Part I, click here.
~To watch Part II, click here.

The ideal solution to protect New Jersey women whose husbands refuse to grant them a religious divorce is to adopt a New York-style law. There, litigants must allege in the verified complaint that before entry of final judgment of divorce, any barrier to the spouse’s remarriage has been removed.

But a New Jersey state appeals court, ruling in Lowy v. Lowy, has given women the next-best thing: an enforceable mechanism for a religious divorce.

The issue of whether a court has the authority to order a litigant to grant a religious divorce has perplexed courts across the country, resulting in conflicting opinions.

In 1981, the Chancery Division, relying on implied contract theory and interpretation of Jewish law, directed the husband in Minkin v. Minkin, 34 A.2d 665, to grant his wife a religious divorce, called a get, because he agreed to be bound by Jewish law. In Burns v. Burns, 538 A.2d 438 (Ch. Div. 1987), the court directed the husband to initiate proceedings for the get in the Rabbinical Court. But Afalo v. Afalo, 685 A.2d 523 (Ch. Div. 1996), held that the court lacked authority to direct the husband to give his wife a get because it would violate the First Amendment.

The only reported appellate court decision in New Jersey is Mayer-Kolker v. Kolker, 359 N.J. Super. 98 (App. Div.), cert. denied, 177 N.J. 495 (2003). There, the court affirmed a trial judge’s refusal to direct the husband to grant a divorce but remanded for the “development of a more complete record as to the parties’ obligations under Mosaic law, including the ketubah [the Jewish marriage contract] and for a determination in light of such facts as to whether the court can compel defendant to cooperate with plaintiff in obtaining a get.”

The Appellate Division has finally spoken on a trial court’s authority to order a party to grant a religious divorce. In Lowy, A-472-10, issued last December, the parties’ final judgment of divorce incorporated a Rabbinical Court decision in their dual final judgment of divorce.

The rabbinical decision provided: “If the arrangements for a Get will be made between Plaintiff and Defendant, Plaintiff shall pay for Get fees incurred.” Studying the decision as a whole, the trial court creatively concluded that the husband was obligated to grant the wife a religious divorce.

The Appellate Division correctly noted that on its face, the rabbinical decision “did not require defendant to provide plaintiff with a Get.” Finding that the trial judge lacked the authority to order a religious divorce, the trial court’s order, therefore, constituted an unconstitutional entanglement in religious doctrine.

The Lowy court noted that the express language of the litigant’s ketubah did not require the husband to grant his wife a religious divorce. Without the rabbinical decree or the agreement of the parties, as a source of authority, the Lowy court held that directing the husband to grant a get “constitute[d] impermissible judicial involvement in a matter of religious practice … [and the] defendant … was not bound by any contractual agreement to do so.”

In sum, Lowy makes clear that an agreement to grant a religious divorce is enforceable by a trial court. New York is the only state that provides a civil remedy to compel a spouse to remove barriers to remarriage – in effect, granting a religious divorce – without the existence of an agreement between the parties. Many husbands refuse to grant religious divorces so they can extract better financial settlement terms or because they simply desire to punish the wife, as occurred in Segal v. Segal, 650 A.2d 996 (App. Div. 1994).

In most states, it is extremely difficult for a woman to obtain a religious divorce without her husband’s consent. Ohio, for example, will not even enforce a settlement agreement providing for the granting of a religious divorce on unconstitutional entanglement grounds. Steinberg v. Steinberg, 1982 WL 2446 (Ohio App., 1982).

Without a religious divorce, a woman is religiously chained to her husband. Despite obtaining a civil divorce, a woman must obtain a religious divorce to remarry. If a Jewish woman remarries without one, she is considered an adulterer. As a result, children born out of this adulterous relationship may be considered illegitimate, with serious religious legal consequences ranging from inheritance ineligibility to marriage restrictions.

In the Muslim context, without a religious divorce, a woman cannot remarry. If she does, her marriage will be void and she will be committing adultery. With a Muslim woman’s marriage still subsisting, her former husband will be considered the legally surviving husband entitled to inherit. The situation is even more complicated for Muslim women who marry abroad or continue to visit their native country. For example, several Muslim countries subject wives to travel restrictions.

Our country needs a legal remedy to protect women within our secular legal system. The U.S. Supreme Court anchors its separation of church and state jurisprudence in elaborate balancing tests. To best serve our clients, lawyers must balance the secular, legal remedies with our clients’ religious requirements.

Religious requirements and secular remedies intersect in so many ways. While not the ideal solution because a husband could still refuse to agree to the religious divorce in the settlement or premarital agreement, Lowy does provide an effective secular remedy to a women’s religious divorce quagmire short of a get law.

Awad is a partner, and Jebara an associate, at Awad & Khoury in Hasbrouck Heights, focusing on civil litigation, complex matrimonial litigation and international law. Awad also teaches Islamic law as an adjunct faculty member at Rutgers Law School-Newark and Pace University Law School.

The post 9/11 environment has created a number of challenges for Arab and Muslim Americans. In an environment rife with hate and demonization, the issue of Shariah law arose. Right wing and Zionist individuals and organizations made Shariah law an issue in American politics and in this year’s presidential elections. The loudest voices in the media have been those of the ignorant and the bigoted. To shed light on this matter, the Forum and Link sought out an authority, if not the authority, on Islamic issues in American courts, attorney Abed Awad, an adjunct law professor at Rutgers law school in New Jersey and founder of the renowned blog www.shariainamerica.com which digests American cases involving Islamic law.

Tell me about yourself, what areas of law do you practice?
I am primarily a litigator. I handle complex matrimonial matters and commercial matters. In addition, I provide services as an expert in Islamic law and the laws of Arab countries.

You are recognized as an authority on the issue of Islamic law in US courts, how did you get into this area of practice?
I have handled as an expert, or consultant or attorney more than 100 cases with a component of Islamic law or the laws of the Middle East in the past 11 years. Prior to going to law school, I spent three years in graduate school in the US and in England. I earned a Certification in Comparative Law with an emphasis in Islamic law and a Masters in Islamic Studies with an emphasis on hadith, a primary source of sharia. With native fluency in Arabic and my graduate work coupled with my training as an American attorney, I developed a unique expertise in Islamic law in American courts. I am on the adjunct faculties of Rutgers law school, Pace law school and Seton Hall law school, where I teach several courses: Matrimonial Litigation; Islamic Law; Islamic Banking and Finance.

Can you explain Shariah law to our readers?
Sharia is more than simply “law” in the prescriptive sense. It is also the methodology through which a jurist engages the foundational religious texts (Quran and Sunna) to ascertain divine will. As a jurist-made law, the outcome of this process of ascertaining divine will is called fiqh (positive law), which is the moral and legal anchor of a Muslim’s total existence. Everything from the way we eat, to how we treat animal and protect our environment, to the way we conduct commercial trade, the Sharia governs every aspect of an observant Muslim’s moral life.

How is Shariah law different from American law?
We need to keep in mind that the American system is a modern nation state legal system, which is a product of the post- Enlightenment revolution and transformations of Western societies. The Sharia is a pre-Enlightenment legal system that served Muslim communities for 1300 years efficiently and effectively. The objective social, political and economic historical context for each system must be considered to better understand their similarities and differences. I don’t think you have enough space in this interview to do this topic justice. However, the lively debates that are raging in the Arab world post the Arab Spring about the role of sharia in the modern nation state are fascinating. The modern manifestations of sharia are ongoing and evolving. Be that as it may, the American system is different in that the anchor for the Sharia is moral, while the anchor in the modern Western legal is the separation between the moral and the legal. In the end, both systems strive to discover the truth and dispense justice. Each system, however, tries to reach this ultimate objective via different path.

Some say, with naïve or with evil intention, let’s outright ban Sharia in the US? What do you think about that?
Now as to the relevance of Sharia in the United States – in addition to its relevance in the daily lives and practices of Muslim Americans, American courts are required to regularly interpret and apply foreign law — including Sharia — to everything from the recognition of foreign divorces, and custody decrees to the validity of marriages, the enforcement of money judgments, probating an Islamic will and the damages element in a commercial dispute and tort cases. Sharia is relevant in a U.S. court either as a foreign law or as a source of information to understand the expectations of the parties in a dispute or to clarify an ambiguity in a dispute. One thing, however, is very clear on the use of any foreign law by any U.S. court in any circumstances, and that is that court consideration of foreign law is subject to the strictures of our Constitution and public policy. To learn more about Islamic law in American courts with the latest developments, please visit our blog at www.shariainamerica.com which digests American cases involving Islamic law.

As to Mahr provisions in Islamic marriage contracts, how do courts deal with Mahr, do they enforce it?
It depends. The way a claimant describes the Mahr provision, or Muslim Marriage Contract – as a prenuptial agreement or as a simple contract – could have a direct impact on the likelihood of its enforcement. If you round up the majority of reported American cases across the country, you will notice some trends. The cases fall into one of two categories: courts treating the Muslim marriage contract either as an Islamic prenuptial agreement or as a simple contract between consenting adults. While several courts have enforced the Muslim Marriage Contract as a prenuptial agreement, more and more courts are moving against enforcement under the prenuptial agreement theory. The simple contract theory is gaining more ground.

Some have resorted to a promissory note for the delayed payment of the Mahr to ensure payment, would that work?
That is a very creative approach. I have not seen it in ligation yet.

The Greater Detroit area has a high concentration of Muslim Americans, how have American courts dealt with Muslim issues?
It depends on the specific court and on the particular issue. For example, some courts have enforced the Marriage Contracts while others have refused to enforce it. Recently, in Hammoud v. Hammoud, the Michigan Appellate Court discussed the authority of the trial court to direct a husband to grant his wife a Muslim divorce. In Hammoud, the trial court awarded alimony to a wife because the husband refused to grant her a Muslim divorce. The court reasoned that without a religious divorce, the wife would not be able to remarry; therefore, the wife would continue to be economically dependent on the husband. In other words, if the husband granted the religious divorce, the wife would not receive alimony. The appellate court disagreed, stating that the trial court did not have the authority compel the husband to grant a religious divorce nor did the trial court have the authority to use an alimony award as leverage to secure the religious divorce. So as you can see, sharia in American courts is lively, dynamic and evolving. We launched a blog ShariaInAmerica.com where you can continue to explore how courts around the country have dealt with Muslim issues.

There is a campaign to outlaw Shariah law in the United States, what do you think of this campaign? How would it affect the rights of American citizens?
Other than the fact that such bans are unconstitutional – the 10th Circuit Federal Court of Appeal recently held that the Oklahoma ban on sharia would likely violate the First Amendment — they are a monumental waste of time. Our judges are equipped with the constitutional framework to refuse to recognize a foreign law or take into account religious law. In the end, our Constitution is the law of the land. The only explanation is that they appear to be driven by an agenda infused with hate, ignorance and Islamophobia intent on dehumanizing an entire religious community. The fringe right- wing minority in our country is trying to turn this into a national 2012 election issue. Are you with the sharia or with the U.S. Constitution? It is absurd.

~Originally published in The Forum and Link: A Contemporary Journal Celebrating Arab America

MUSSA v. PALMER-MUSSA
No. COA11-209

FACTS
In early 1997, defendant/wife married husband #1 in an Islamic ceremony held in Maryland; however, neither party obtained a Marriage License as required under Maryland law. Wife and husband #1 lived together in Maryland, but they never consummated the marriage. Shortly thereafter, wife obtained a religious divorce from husband #1 and returned to North Carolina.

That same year, wife met plaintiff/husband #2. After they obtained a marriage license, they were married on November 27, 1997. The couple had three children together and remained married for twelve years. On December 4, 2008, wife filed for divorce from husband #2.  The Trial Court granted her child support and spousal support. On December 3, 2009, husband #2 filed for an annulment based on bigamy, alleging his marriage to defendant was void because defendant/wife had never secured a civil divorce from husband #1. In response, defendant/wife filed a motion to dismiss the husband’s annulment request. The Court dismissed the husband’s request for an annulment, holding that the defendant/wife was never legally married to husband #1. Plaintiff/husband #2 appealed.

ISSUE
Whether a religious dissolution of a religious marriage was a valid dissolution of marriage to defeat a claim of bigamy.

RULING
The Court of Appeals reversed the lower Court’s decision, holding that the wife’s marriage to husband #1 was voidable because the parties did not obtain a Marriage License; thus, said voidable marriage subsisted until it would be dissolved by a court of law, which was not the case here. Therefore, wife’s marriage to husband #2 was void.

WHERE
ART America TV
The Bridge Program (Al-Jisr)

WHEN
Friday    December  9,  2011 at 10:30PM EST
Monday December 12, 2011 at 12:00AM EST (aka “Sunday Night”)
Monday December 12, 2011 at 12:00PM EST

In Zawahiri, the wife sought enforcement of her Muslim Marriage Contract. She relied on the theory that the Muslim Marriage Contract was an Islamic prenuptial agreement.  At trial, the Court denied her request, holding that her Muslim Marriage Contract was an invalid prenuptial agreement.  The Trial Court explained that under Ohio law a valid prenuptial agreement requires advice of counsel and full and complete financial disclosures. Of course, like the majority of Muslim Marriage Contracts, neither requirement was present in her case. On appeal, the wife changed her legal theory, arguing that the Marriage Contract was enforceable as a simple contract, not as a prenuptial agreement.  Unfortunately, the Appellate Court refused to consider the new simple contract theory because the wife did not argue it at the trial level; as such, the Court held that wife waived her contract theory claim. The Court noted:

“Consequently, [wife] now contends on appeal that the marriage contract does not constitute a prenuptial agreement. However, at trial, [she] asserted a contrary argument. Below, [wife] argued that the marriage contract was a valid prenuptial agreement, and she insisted that the trial court enforce it as such . . . . Because [wife’s] new appellate argument contradicts the argument she presented to the trial court . . . we conclude that [wife] waived the argument.”

Interestingly, in dicta, by not considering the simple contract theory as waived and noting that the the wife would likely be able to obtain enforcement in a religious tribunal and possibly in a Syrian court, the Court left open the possibility of enforcement under the simple contract theory.

We have rounded up the majority of reported American cases across the country, and have noticed some trends.  The cases fall into one of two categories: courts treating the Muslim marriage contract either as (1) an Islamic prenuptial agreement; or (2) as a simple contract between consenting adults.

While several courts have enforced the Muslim Marriage Contract as a prenuptial agreement, more and more courts are moving against enforcement under the prenuptial agreement theory for the simple reasons stated in Zawahari.

GROUP 1 CASES
[courts holding that the Muslim Marriage contract is a prenuptial agreement]

Enforced [Muslim Marriage Contract is a prenup and is valid]
Chaudry v. Chaudry, 159 N.J. Super. 566 (1978-New Jersey)
Akileh v. Elchahal, 666 So. 2d 246 (1996-Florida)
Afghani v. Ghafoorian, Record No. 1481-09-4 (2010-Virginia)

Not Enforced [Muslim Marriage Contract is a prenup but invalid]
In Re Marriage of Dajani, 204 Cal.App.3d 1387 (1988-California)
Chaudhary v. Ali, Record No. 0956-94-4 (1995-Virginia)
Ahmed v. Ahmed, 261 S.W.3d 190 (2008-Texas)
Zawahiri v. Alwattar, No. 07AP-925 (2008-Ohio)
In Re Marriage of Obaidi, 154 Wash.App. 609 (2010-Washington)

GROUP 2 CASES
[courts holding that the Muslim Marriage Contract is a simple contract]

Enforced [Muslim Marriage Contract is a simple contract and is valid]
Aziz v. Aziz, 127 Misc.2d 1013 (1985-New York)
Odatalla v. Odatalla, 355 N.J. Super. 305 (2002-New Jersey)
Abdallah v. Sarsour, No. CH-2005-2339 (2006-Virginia)
In the Matter of the Marriage of Altayar, 139 Wn. App. 1066 (2007-Washington)

Not Enforced [Muslim Marriage Contract is a simple contract but not valid]
Habibi-Fahnrich v. Fahnrich, No. 46186/93 (1995-New York)
In the Matter of the Marriage of Obaidi, 154 Wash.App. 609 (2010-Washington)

If there’s anything you’ve learned today, let it be this: Beware of how you characterize the Muslim Marriage Contract because more often than not, it is a matter of winning or losing.

Foreign Marriage
A foreign marriage occurs when a couple marries outside of the United States – regardless of whether or not either party is a U.S. citizen. Two simple examples:
(1) Bride and groom from Virginia decide to travel to Pakistan to get married;
(2) Egyptian bride and groom living in Egypt get married in Egypt and shortly thereafter immigrate to the U.S.

In these two scenarios, the law of the country where the marriage was performed governs the the validity of their marriage.  Pakistani law governs in example (1) and Egyptian law governs in the second example.  Some states, like New York, provide that the law of the marital domicile would govern the validity of a foreign marriage.  In other words, assume that in examples (1) and (2) the married couple resided in New York for ten years.  New York marital domicile law potentially would apply for purposes of the validity of the parties’ marriage.  This approach highlights the public policy in New York that provides a presumption in the validity of marriages.  In these examples, a Muslim marriage performed in accordance with the laws of the place of marriage is recognized and enforced in the U.S.  However, this only applies to the marriage itself.  As to the consequences of the marriage – custody, child support, martial property and alimony – the law of the marital residence governs.  So in example (2) with the couple that married in Egypt, immigrated to the U.S. and resided in the U.S. for several years before filing for divorce, the law of their state of residence would govern all of the consequences of the marriage – custody, alimony and equitable distribution.

Domestic Marriage
In the majority of states, to be valid, a marriage requires a couple to obtain a marriage license from the state and then take that marriage license to a person authorized to solemnize marriages. American law authorizes certain government officials, such as mayors and judges, and most religious officials, to solemnize marriages. The majority of Americans choose to have their religious official solemnize their marriage.

What are the legal consequences if you only marry religiously without obtaining a marriage license as required under the law?

The answer depends on the state you live in. There are three approaches to this issue:

Approach 1: common law marriage
Some states still recognize common law marriages, though most states have abolished common law marriage. While the elements of a common law marriage differ amongst the twelve or so states that recognize it*, most of those States require three basic elements: (1) intent to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Therefore, if a Muslim couple, with a religious marriage contracted in the U.S., reside in a state that recognizes common law marriage, their religious marriage is likely to be valid.  Why?  Because the Muslim marriage contract demonstrates an intent to be married, an intent to live together and the public know the couple to be husband and wife.  In this case, the wife’s marital rights would be protected under state law (alimony, equitable distribution/community property, child support).

*The following states continue to recognize common law marriages: Alabama, Colorado, District of Columbia, Iowa, Kansas, Montana, New Hampshire, New Mexico, Rhode Island, South Carolina, Texas, Utah.

The other states take one of two approaches – the marriage is void (New Jersey) or the marriage is voidable (New York):

Approach 2: marriage is void
The void states, like New Jersey, say that if you fail to obtain a marriage license, then your marriage is void; therefore, no rights or privileges arise therefrom. This means a wife would not be entitled to alimony or to a share in marital assets.  Furthermore, if the husband dies – naturally or because of a third party’s negligence, the wife in these circumstances would neither inherit nor be able to sue on behalf of her husband.  Of course, children are entitled to child support whether the marriage is valid or not.  Some states allow a legal action called palimony.   In an action for palimony, the party asserting the claim must prove to the court that his or her partner promised to take care of him or her for life. The parties moved in together, worked together and then the party promising to care for the claimant decides to pick up and leave. In this case, the court would award the injured party damages for the breach of the promise to take care of the partner for life. These cases are very difficult to win and some states now require that such promises be in writing.

Approach 3: marriage is voidable
On the other hand, the voidable states, like New York, provide that a marriage without a marriage license would render the marriage voidable.  If you prove to the court that a person authorized to solemnize your marriage performed the solemnization, the court is willing to recognize the marriage being valid and effective as of the date of solemnization. In this case, the law protects the palimony claimant’s rights arising out of his or her voidable marriage.

The best practice is to follow local law and obtain a marriage license before you go to your Imam to solemnize your marriage. This is the most sensible route to protect your rights and to protect the validity of your marriage.