Is a ban on foreign law consideration harmful in divorce cases?

By October 19, 2012Divorce

On behalf of The Marks Law Firm, L.L.C posted in Divorce on Friday, October 19, 2012

Much has been made about the concept of Shariah, also known as Islamic law. Several states in the last few years have passed legislation that precludes judges from considering laws of foreign countries when they make decisions; Missouri, as of yet, is not one of them. For many people, support of such a ban is a choice made for political reasons. However, many people may not realize the day-to-day implications of such a ban.

One area of the law in which Shariah could play a part is family law, in particular divorce. A case from another state, for example, involves a former couple from west Africa. The woman contends that, under Shariah, she was married to the man she considers her husband. The man, however, contends that the marriage was never valid and that the two were never husband and wife.

This is important because if the American judge rules that the two were married, the woman could stand to receive a divorce settlement or alimony from the man. If they were not married, there would be no such considerations for her.

How, then, will the judge decide if the two should be considered to be married? Most likely, he will have to consult with Islamic legal experts. The case is not that obvious; while there may be no paper proof, such as a marriage certificate, for the judge to simply say there is no marriage on that basis could be quite harmful to the woman, doing her a disservice. If the case were to take place in a state where foreign law cannot be considered, the judge’s decision could be seen as arbitrary at best and dangerous at worst.

Source: The Washington Post, “Shariah or not, Muslim divorces can get tricky,” Omar Sacirbey, Oct. 1, 2012