AMERICAN MUSLIMS AND AMERICAN LAW
by Asifa Quraishi, Esq.
Some fourteen years later, military officers fomented resentment at the femaleinfluence in the state, and staged a coup. After a failed attempt, they killed Muqtadir in asecond coup in 320 A.H. His mother, who became ill from shock, was imprisoned. The newcaliph, Al-Qahir, demanded all her wealth and brutally tortured her. He then tried to force herto dissolve all her awqaf (trusts) and appoint his agent to sell them. She retorted, "Iestablished these awqaf in the name of charity and in the name of closeness to Makkah andMadinah, for the weak and the poor, and I will not authorize their dissolution and sale." Al-Qahir dissolved and sold them anyway. In 321, Umm al-Muqtadirs condition worsened dueto the torture. A prominent townsman who had been her sons supporter cared for her at hisown mothers home. She died that year and was buried in the cemetery she had founded onAl-Rusafa (a bank of the Tigris River). <1>
< FN 1: I am indebted to Professor Mohja Kahf, of the University of Arkansas, for writingthis summary of Umm al-Muqtadir-billahs story, which she translated from Alam al Nisa byUmar Kahhala.>
When I first read about Umm Al-Muqtadir, I tried to imagine what that open Baghdadcourt must have been like. I wondered about the woman judge she appointed to hear its cases. And what those cases must have been aboutwhat kinds of people, problems, disputes, andcrimes did she adjudicate? To me, it is especially significant that one of Umm al-Muqtadirsvery first actions as ruler was to set up that tribunal. She knew the importance of fairadjudication of law for her peopleand that easy access to that law is fundamental to itsjustice.
Access to justice means more than just proximity. It also means education. Knowingyour rights and responsibilities is more than half of the effort in protecting them. And that iswhat I am going to talk about todayknowing our legal rights and responsibilities asAmerican Muslims.
We are in a unique situation. We ownand are proud to ownboth our rights asMuslims under Islamic law, and our American legal rights as citizens of the United States. Since we are fortunate to live in a place that recognizes religious freedom, we have wideopportunities to act so that each of these legal rights are ensuredif we are educated, and planahead a little.
Law, I admit, can be boring. And tedious. But, it does affect our lives more than youmight expect. And many, many cases where the parties have not legally educated themselvesend in sad stories of domestic abuse, loss of family and family support, and financial hardship. And, unfortunately, Muslim women too often bear the brunt of these injustices. The tragedy,really, is when you see that she could have protected herself fairly easily if she had just hadthe tools.
So, what are the tools? I am going to briefly go over some basic issues in UnitedStates family law, with an eye to some primary Muslim concerns:
Marriage. First of all, Islamically, marriage is a contract, and because it is a contract,the parties can agree to put all kinds of clauses in that contract. The Islamic schools ofthought disagree slightly over some specific provisions, so you have to be very clear abouthow you do it, but the basic rule of thumb is that any clause which does not contradict thepurpose of marriage itself is permitted. Among the specific clauses that historically have beenrecognized in Islamic law are:
1) the mahr amount - a required clause, this is the dower,
or gift to the bride, of afinancial or property amount given
up front at the time of marriage or deferred (inwhole or in part)
to be paid upon death or divorce;2) the marriage will not be
polygynous (i.e. the husband agrees not to take a secondwife);3)
specification of the wifes financial independence and ownership
of property (theparties can also delineate ownership of specific
items in case of divorce, such as thehome, furniture, etc.);4)
right of wife to education and/or employment and/or right to
travel;5) right of wife to initiate divorce proceedings without
consent of the husband.
There are many other provisions which have been used throughout Islamic history (includingsuch things as where the couple is to live, delegation of household duties, etc.), and varygreatly depending upon the specific circumstances of the given couple, society, and age. <2>
<FN 2: For further information, see Muhammad Abu Zahra, Family Law, in Law in theMiddle East, at 132 (Majid Khadduri & Herbert J. Liebesny, ed.s 1955); Azizah al-Hibri, ACritique of Personal Status Codes in Select Arab Countries 25 (1994) (citing Muhammad AbuZahra, Muhadarat fi Akd al-Zawaj Wa Atharuh, at 187).>
It is interesting to see what happens when marriage and divorce cases of Muslims endup in American courtsand there are many lessons to learn. Many courts are looking atMuslim marriage contracts, especially those with many clauses, as pre-nuptial agreements,which is fine, but both we and the U.S. courts need to be educated when dealing with them.
There are two basic requirements for valid pre-nuptial agreements under American law: 1) full and complete disclosure of financial circumstances of the parties, and/or 2) aneconomic provision for the parties which will be seen as "fair" by a court years later. Anagreement fulfills this basic rule if either 1) or 2) exists, but it is generally more secure if bothare satisfied. It is recommended (and some states require) independent counsel for both partiesto the agreement, and many states require the agreement to be in writing. A pre-nuptialagreement will not be upheld, however, if the court finds that it "tends to unreasonablyencourage divorce or separation." That is, if the court finds that it was drawn up incontemplation of an eventual divorce, or that it facilitates the process of obtaining a divorce,the agreement will not be recognized.
You may have already noticed that this last rule obviously causes some problems whendealing with a deferred mahr provision. In the case of Dajani v. Dajani, 251 Cal. Rptr. 871(1988), a 1988 case from Orange County, California, this issue came up in the divorce case of aJordanian couple, married in Jordan. In this case, the wife asked for a divorce (the opiniondoes not reveal the reason). After listening to experts on Islamic law, the court decided not toaward her the mahr specified in the contract. She lost at both trial and appeal. The trialcourt, after hearing the experts, said:
the law in existence would be that of the Jordanian or Moslem law, and it finds that ifthe wife initiates a termination of the relationship [if she asks for a divorce], sheforgoes the dowry and common sense and wisdom of Mohammed would dictate thatshe forgo the dowry, unless the parties agree otherwise.
She appealedsaying that the expert was not qualified, and to "deny dowry just because thewife initiated the divorce is unjust." The court of appeals also denied her mahr, but for adifferent reason: general public policy arguments regarding prenuptial agreements.
Prenuptial agreements which "facilitate divorce or separation by providing for asettlement only in the event of such an occurrence are void as against public policy."
That is the traditional attitude toward prenuptial agreements in the United States. But, ittranslates into a fundamental misunderstanding of Muslim marriage contracts. It reasons thatbecause a woman would receive her deferred mahr on divorce, then the Islamic marriagecontract encourages divorce, and so it is against public policy. You could argue, by the samereasoning, that Islamic marriage contracts also encourages murder, because she also gets adeferred mahr on the death of her husband! <3> (Ironically, prenuptial agreements allowingfor distribution on death are generally upheld in U.S. courts.)
<FN 3: My thanks to Professor Azizah al-Hibri, of the University of Richmond School ofLaw, for making this point, and several others presented here, in her presentation at the NGOForum to the Fourth UN World Conference on Women, held in Huairou, China, inSeptember, 1996. Her presentation was on behalf of Karamah: Muslim Women Lawyers forHuman Rights, which co-sponsored the NGO presentation with the Muslim Womens Leaguefrom Los Angeles, California.>
So, in this case, the wife lost her dower. The sad thing, on top of everything, is thatwe dont even find out whether under Islamic law she may indeed have been entitled to itthey never really reach that level of analysis. This shows the need for Muslims, lawyersespecially, but all Muslims, to educate American courts and judges on the nature of Muslimmarriage contracts, and how to analyze them.
The good news is that slowly, now, many courts are starting to uphold these Muslimmarriage contracts. But, you have to know what you are doing: be specific and clear in yourlanguage. Lets take the case of Habibi-Fahnrich v. Fahnrich, 1995 WL 507388 (N.Y. Supp.1995), a New York case from July 10, 1995. This is another divorce case, in which the wifeasked for her sadaq, or mahr, and submitted a written contract, a standard mosque contract, tothe court. In fact, this wife withdrew her request for maintenance, asking only for her mahr. The court said:
The sadaq is the Islamic marriage contract. It is a document which defines the preceptsof the Moslem marriage by providing for financial compensation to a woman for theloss of her status and value in the community if the marriage ends in a divorce. Thiscourt has previously determined in this case that sadaq may be enforceable in thiscourt.
It is interesting to note that this is a New York case. New York courts generally have beenbetter at understanding religious marriage contracts because of their experience with the Jewishketuba, which involves many concepts similar to the Muslim kitab (contract). But, the wife inthis case did not get her sadaq. Why? They didnt write the contract very well. It read:
I, Mohammad H. al-Asi, the elected Imam of the Islamic Center of Washington D.C.,did . . . on August 8, 1992 . . . unite in marriage Mr. Brian Curtis Fahnrich of theUSA and Miss Golgoun Habibi of the Islamic Republic of Iran according to theteachings of the Quran and the Sharia of Islam. The sadaq being: a ring advancedand half of husbands possessions postponed.
The court found that this language was too vague to satisfy the basic rules of contractrules,by the way, that have parallels in Islamic contract law. Two of the primary rules governingthe validity of contracts in general are: 1) "material terms" and 2) specificity. First, thelanguage of the contract must include all the "material terms of the mutual agreement. Here,the problems were the definition of "one-half," the applicability of "one-half interest," theextent of that "interest," and the word "post-poned." Second, the language must be so specificthat anyone reading the contract should be able to understand the dictates of the agreement. Here, there is an obvious question as to what constitutes a "possession" and how do youdetermine "one-half" of those possessions, or even when that determination should be made. So, the court said:
This Court has already determined in this case that as a matter of law, on the basis of[past cases] a religious agreement may be enforceable if it conforms to the requirementsof the Statute of Frauds [the general rules governing contract validity]. On the basis ofthe facts now presented in this case it is apparent that this particular religious agreementoffered by plaintiff is not enforceable in the present situation. . . . this sadaq fails onthree different points of law . . . . materiality, specificity, and insufficiency.
So, the lesson here is: be very careful and specific when drawing up your marriage contractterms. It is not a bad idea to use legal advice from an expert, since you are drafting somethingwhich has to project an outcome which may not come into play for several years from the timeyou write it.
A note on clauses that relate to ongoing activities during the marriagequite commonin Muslim marriage contractssuch as clauses relating to education, employment, polygamy,etc.: generally, U.S. courts will not enforce prenuptial agreements during a marriage,following a basic judicial policy of noninterference in ongoing marital relations. But, many ofthese clauses support general public policy in America anyway, such as a clause establishingthe wifes right to an education or employment, and at least one of themrestrictingpolygamyjust reiterates the law in the United States. Polygamy is not legal in any stat of theUnited States (including Utah). The legality of polygamy in the country in which you live isan important element for Muslims. When you live in a state which outlaws polygamy butmarry more than one wife anyway, then the second wife is cut off from access to her legalrights as a wife completely; rights including inheritance, mahr, alimony, child custody, etc. Thus, she is not treated equally to the first wife, who (unlike the second) can easily go to therecognized legal authority in the country to enforce her marital rights. (There is no Muslimauthority in the United States at present that a woman can resort to which has the power toenforce these rights if she is denied them for one reason or another.) That is fundamental tothe legal validity of polygamy for Muslims in the first placethat each wife is treatedequally, which includes financially and legally. Thus, there are strong reasons againstMuslims marrying a second wife in a country, such as the United States, which will notrecognize and enforce her legal rights. But, it is not a bad idea to include a clause agreeingthat the marriage will not be polygynous, if you want to, for clarification between the twospouses and the Muslim community, and there is always the possibility that you will live insome other country someday that does recognize it and you will want your marital agreementprotected.
It is not just second wives in American Muslim marriages that dont have a civilmarriage contract upon which to base their rights. For various reasons, often Muslims hereget an Islamic marriage, but then do not register a civil license. This can lead to problemslater, such as parental rights, medical decision-making, and inheritance. You might think thatthe doctrine of common-law marriage might resolve the problem. Common law marriage is adoctrine, developed fairly recently in case law, which recognizes a relationship as if it were alegal marriage, with all the attendant legal rights, if there is proof of cohabitation and that thecouple held themselves out to the world as husband and wife. There doesnt have to be a longlength of time of cohabitation, but you do have to prove the relationship. But not all statesrecognize common law marriage. In fact, only one-fourth of all states do (these are: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania,Rhode Island, South Carolina, Texas, and Utah). If youve met the criteria for a common lawmarriage in a state which recognizes it, and then move, you are still considered legallymarried, but it is a risk, especially if you establish your relationship in a state which does not. Also, a common law marriage can be ended only through regular divorce proceedings, justlike a legally registered marriage. So, you are not saving yourself the trouble of avoidinglegal red tape for divorce by not registering your civil marriage licenseif you want toenforce your divorce rights, you still have to go through formal divorce proceedings.
When there is no common law marriage, courts have encountered problemsdetermining whether there was a "putative" marriage for Muslim couples. In the case ofVryonis v. Vryonis, 202 Cal. App. 3d 712 (1988), from California in 1988, the couple did notwrite down their Islamic marriage contract and also did not get a civil license. So, the courtlooked to the living behavior to see if there was a "putative" marriage. They looked at manythings to determine the nature of the relationship, but two are especially interesting for us. First, the court noted that the husband and wife maintained separate bank accounts. Said thecourt, "there was no merging of finances, nor was there any joint accumulation of real orpersonal property." Well, we know that Islamically, women have absolute exclusive right totheir property and financial independence. So, it is quite common for Muslim women not tohave a joint property with their husbands. Second, the wife did not change her name: "Fereshteh did not use Speros surname." Again, we know that this is not a tradition inIslamic historyand more and more now, in modern western culture. So, here we see theneed, again, to educate American courts, butperhaps more importantlyto educateyourself and protect yourself by writing a contract, making it clear, and legalize it with thestate with a civil license.
Another issue of interest to Muslims is community property. The doctrine ofcommunity property of spouses, recognized in several states, has an effect upon a Muslimwomans right to own and control her property. In a community property state, each spousehas a one-half interest in all the property acquired during the marriage by either spouse. Everything else is the separate property of each spouse. (Separate property is anythingbrought into the marriage, or acquired by will, bequest, or devise to one of the parties beforeor during the marriage.) Nine states recognize community property: California, Arizona,Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Puerto Rico. Each spousehas equal management, control and disposition rights over community property, whereasseparate property can be sold or given away without the consent of the other spouse. Obviously, this impinges greatly upon a Muslim womans right to exclusively control her ownproperty and earnings. A couple can redefine property as separate property or communityproperty in a valid prenuptial agreement (and with more caution, in a postnuptial agreement). To do so, the agreement, as of January 1, 1986, must be: 1) in writing and 2) signed by bothparties.
Agreements regarding the religion of the children upon divorce are very common inMuslim marriage contracts, especially those between spouses where one party is not Muslim. Often, however, it is merely an oral agreement to raise the children as Muslims. This is anissue to which Muslims in America should be attentive. Prenuptial agreements regarding thereligion of children are usually unenforceable in American courts. If it is included in aseparation agreement, however (i.e. when the marriage is ending), then such a clause isusually recognized, but this is risky because at this point, there is often a dispute on thematter. In Jabri v. Jabri, 598 N.Y.S. 2d 535 (1993), a 1993 case from New York, the courtsaid:
we note that defendant has failed to produce any written agreement between the partiesregarding the religion in which their children were to be instructed. Agreementsbetween divorcing spouses with respect to the religious upbringing of their children willbe upheld by the courts only when incorporated into separation agreements, courtorders, or signed stipulations. . . . In the absence of a written agreement, the custodialparent . . . may determine the religious training of the child.
So, anything you might do orally, or even in writing ahead of time, which is not a separationagreement or a court order, etc., about the religious upbringing of the children, is not going tocount in court. The reasons for this are given in more elaborate detail by a Pennsylvania courtin Zummo v. Zummo, 574 A.2d 1130, in 1990:
a pre-divorce agreement regarding the religious upbringing of the children . . . [are]not legally enforceable. . . . the authorities establish several persuasive grounds uponwhich to deny legal effect to such agreements:1) such agreements are generally too vague to demonstrate a meeting of minds,or to provide an adequate basis for objective enforcement;2) enforcement of such an agreement would promote a particular religion,serve little or no secular purpose, and would excessively entangle the courts inreligious matters; and,3) enforcement would be contrary to a public policy embodied in the FirstAmendment Establishment and Free Exercise Clauses . . . that parents be freeto doubt, question, and change their beliefs and that they be free to instruct theirchildren in accordance with those beliefs.
So, where there is any chance of it being disputed, be careful about an agreement regardingthe religion of the child after divorce.
Child Custody. Child custody is an area where there is much opportunity for positivesharing of law. There have been several cases where United States courts have had to decidewhether to apply a foreign law of child custody or not, with varying results. Under U.S. law,the test for granting child custody is the "best interests of the child" and the judge has all buttotal discretion to award custody as he or she sees fit. "Best interests" does not really have aspecific definition, but in applying it, judges take into account such elements as: the wishes ofthe childs parents, the wishes of the child, the interaction of the child with the parents,siblings, and other relevant people, the mental and physical health of all involved, and thecontinuity in the childs environment and permanence in psychological attachments.
Looking at cases where Muslims are in court on a child custody claim, we find twointeresting cases. The first is Malak v. Malak, 182 Cal. App. 3d 1018 (1986), from Californiain 1986. In Malak v. Malak, a Muslim couple traveled and lived around the world, includingthe United States, Abu Dhabi and Lebanon. When the custody case came to the United States,there was already a custody decision in Abu Dhabi and a custody decision in Lebanon. Thecourt got a fax from the American embassy in Abu Dhabi saying that, invariably, the custodywill go to the father because there is an automatic rule in that country that says at a certain agecustody is to the mother, and at a later age, it is to the father. The American court said that anautomatic rule will not work in the United States, because it is not directly linked with the bestinterests of the child. The court took the Lebanese decree, on the other hand, a lot moreseriously. (And if our Muslim courts in the Arab world and other parts of the Muslim worldknow about this, then they can property formulate their decrees so that they will beenforceable and respected on the principle of comity in American courts.) First of all, thecourt in Lebanon had given notice to the defendant (wife) that there is a case pending againsther. It gave her the opportunity to be heardit gave a temporary injunction for fifteen days,and if she showed up, the court would reopen the case and hear everything. To that, theCalifornia court said that if the Shariah court in Lebanon follows our standards of the bestinterest of the child, and they have procedural justice, then we will be willing to honor itthrough comity. And this is what the court found when it evaluated the Lebanese decree:
the Sharei court has taken into consideration, while pronouncing the two orders relatingto the custody of the children Fadi and Rubah, several human, educational, social,psychologic, material, and moral factors, for the purpose of insuring the best interest ofthe two children and their present future and on the long run.
And it gave some factors, for example:
the court has considered the best interest of the two minor children at a long range inrespect of avoiding their exposal to . . . loss, spiritual and physical deficiency resultingfrom the radical change which will take place in case the children are transferred to aworld strange to then in all respects without having their friends or relatives with them.
Here, the Islamic court went through the considerations that are important for an Americancourt. And therefore, while the Abu Dhabi decree was not even looked atit had noprocedural justice and it had no best interest of the child standardthe Lebanese court wastaken very seriously, and in fact its decision was enforced on the basis of comity.
A case in Maryland, decided only two months ago goes even farther in its acceptanceof a Pakistani custody standardit agrees that Pakistans custody determination of the bestinterest of the child was appropriately determined according to the morals and customs ofPakistani society. The case is Hosain v. Malik, 671 A.2d 988 (Ct. App. Md. 1996), fromMaryland, dated February 26, 1996. In this case, after the father obtained legal custody of thechild in Pakistan, the mother filed for custody in the United Stateswhere she had taken thechild just before the father sued for custody in Pakistan. After testimony, the Maryland courtsaid:
the evidence was overwhelming that, as a general principle, Pakistan follows the bestinterest of the child test in making child custody decisions. . . . Preliminarily, webelieve it beyond cavil that a Pakistani court could only determine the best interest of aPakistani child by an analysis utilizing the customs, culture, religion, and mores of thecommunity and country of which the child andin this caseher parents were a part,i.e., Pakistan. . . . [B]earing in mind that in the Pakistani culture, the well being of thechild and the childs proper development is thought to be facilitated by adherence toIslamic teachings, one would expect that a Pakistani court would weigh heavily theremoval of the child from that influence as detrimental.
The court even goes on to make the following strong statement:
We would be obliged to note that we are simply unprepared to hold that thislongstanding doctrine [a particular interpretation of Islamic law considered in Pakistanicustody decisions] of one of the worlds oldest and largest religions practiced byhundreds of millions of people around the world and in this country, as applied as onefactor in the best interest of the child test, is repugnant to Maryland public policy.
We can see from this language that it is very plausible to have Islamic law respected in U.S.courts; it just has to be clear, and the U.S. judges properly educated about what they areapplying.
Inheritance. Inheritance is an issue of importance for us, and it is something that it iseasy to not be prepared for. If you are not prepared for it, by writing a valid will, then theU.S. intestacy laws kick in. These laws decide the distribution of property upon death foranyone who leaves no will (or whose will is found to be invalid). This is important because ofthe many Islamic rules on inheritance rights and distribution, and also because it affects allmembers of the familyboth immediate and extended. Under American intestacy laws, thesurviving spouse receives all community property, if you are in a community property state. Otherwise, the surviving spouse receives one-third of all separate property if children or otherimmediate family are living, or one-half of all separate property if there are no survivingchildren or immediate family. Children (and their heirs if deceased) divide two-thirds of theseparate property, according to how many there are. Parents of the deceased divide theremainder of the property (if the spouse and children survive), or all of the property if no onesurvives. Clearly, this conflicts with Islamic laws of inheritance distribution. The quick andeasy way to avoid the application of these laws to you is to write a will (complying with theIslamic laws of inheritance) which is valid under U.S. law. It is advisable to seek the counselof an attorney who specializes in will drafting, because applicable laws vary from state tostate, and you should be careful to arrange for all the specific circumstances which are relevantto you.
Adoption. Lastly, I would like to touch on the issue of adoption. There are oftenquestions among Muslims regarding adoption in the United States by Muslim families. Islam,of course, does encourage adoptionfollowing the example of the Prophet with Zaydaslong as you ensure the natural rights of inheritance, family name, etc. of the adopted child visa vis his or her natural parents. Under American law, some states allow inheritance rights ofadopted children from their natural parents, and others do not. This, of course is problematicfor the rights of the individual child, and an opportunity for Muslims to effect reform in theirindividual states. And, of course, conflict is always avoidable by leaving a valid will. As faras family name and identity, however, there is no conflict under American law. There is norequirement that an adopted child change his or her name to that of the adoptive parents. Infact, to make such a change, it is necessary to prove to a court that the name change will bebeneficial to the child, and is not just a matter of convenience.
In conclusion, we see that it really is not that difficult for us, Muslim women and men,to protect our Islamic rights by calling upon our American courts. It just means following theQuranic injunction to educate ourselves, and then implement that education. That meanseducating ourselves about our rights in Islam, educating American judges of those rights, andthen being specific and forward-thinking in our practice of those rights.
It is definitely possible. I believe that if the Muslim community in America were totake these responsibilities seriously, not only would we see an improvement in the fairness ofthese cases when they get adjudicated, but it would also give us some of the valuable toolsnecessary to becoming a vibrant example of family and justice in American society. I thinkwe can make Umm al-Muqtadir proud.