Justice360 – Legal Bulletin: Marriage & Divorce in Islamic and American Law

Few legal areas have gotten more attention in recent years than Family Law. While most of the West has focused on this area in order to expand the definition of marriage beyond traditional boundaries, Muslims look to the marriage arena to better understand how their religious principles match with the legal and social constraints of their home countries. The Muslim approach is an honorable one, as it hopes to obtain better insight into the obstacles and challenges that face those who hope to complete half their deen, are already married, or are have decided it is best to seek divorce.

The first critical distinction to make between Islamic marriage and secular marriage is the different processes one most go through in order to get married. The Islamic requirements for marriage can be most easily found in the risalah of one’s marja, however, fulfilling those conditions alone do not make one “married” in the West. The Western definition of marriage focuses on the filing of marriage papers in a local city or town hall, or similar settings. Whether a scholar has presided over one’s wedding has no bearing on the legal nature of one’s marriage status in the United States. Therefore it is essential for those who hope to get the rights and benefits that attach to married individuals in the West to complete the secular paperwork required, in addition to the Islamic processes they have gone through.

In addition to recognizing the difference between the steps one must go through to get married in both the Islamic and secular legal settings, it is also important to note some of the obstacles to marriage which exist in the West, even if they do not pose a problem Islamically. Firstly, the age at which minors may get married, though variable, is higher in every state than it is in Islam. For example, many states require a man or woman to be 18 before they are able to get to married without parental consent. Even with parental consent, the age of marriage ranges from 16 to 18 years old in most states. Similarly, marriage between cousins is illegal in many states. As such, these marriages will not be recognized, impacting the benefits that married couples hope to receive, including immigration status.

Once secularly married, there are a myriad of benefits that accrue to both spouses, including tax benefits, health care, inheritance, immigration and so on. The benefits are numerous, and so those hoping to tap into these resources must realize that they only accrue to those who are married according to secular laws, and not necessarily Islamic laws. While these benefits are important, it should be highlighted that US courts are generally reluctant to enforce contracts, between spouses, meant to regulate the inter-marriage period. In the American legal setting contracts requiring certain actions take place while the marriage is happening are an oddity, even though they may be Islamically valid. For example, a contract requiring the husband provide a certain amount of financial support for his wife may not be enforced by US courts. Instead, US courts will usually only get involved once the marriage has been dissolved and ended.

In addition to refusing to enforce contractual provisions that regulate the marriage period, US courts have also have had mixed responses to contracts for dowry or ‘mahr’. While some have enforced these agreements, others have refused to do so for a variety of reasons. One of these reasons is the limited bargaining that usually takes place in the Muslim context of setting the ‘mahr’. This means that US courts are less likely to enforce mahr provisions that were unconscionably large, contracted in a very short period of time (e.g. an hour before the wedding), made without the presence of legal representation, or took place between a young man and a family without substantial negotiation and discussion.

Similar to entering into a marriage, exiting from a marriage is also distinctly different when comparing Islamic and secular settings. For secular divorce in the US, a series of paperwork must be filed that initiates the divorce process, and allows a court to grant divorce. Unlike Islam, which provides moral advice on the reasons for which spouses can get divorced, all states allow both husband and wife to obtain a divorce with few reasons provided. In fact, in 2010 New York was the final state to pass legislation allowing no-fault divorce, which allows for a spouse to file for divorce without providing specific wrongdoing on behalf of one’s husband or wife. Therefore, it is entirely possible that a couple be married Islamically, while still being divorced in the eyes of the American legal system.

Divorce is obviously a difficult process for couples, often both spiritually and emotionally. In addition, the American divorce process brings with it additional considerations. When couples get divorced courts decide how their property must be split, whether alimony must be paid, and, if the couple has children, how the custody arrangements for the children should be decided. There are many variables that go into the court’s decision regarding child custody, but the ultimate decision is based on the best interest of the child. In practice, this usually means that the mother is given primary custody of children. In Islamic Law, a wife will get half of any property earned during the marriage if that stipulation was agreed upon at the time of the marriage. In Islam the wife also gets the right to raise the children (Haqq ul-Hidhannah) if a boy is under two years and a girl under seven. Fathers remain liable for all expenses of the child and remain the child’s guardian.

As for property, courts divide assets based on whether the property was ‘marital property’ or ‘separate property’. Marital property comprises most of the money, property, goods, etc. that were obtained after the marriage commenced. Separate property is all property that one spouse purchased and possessed prior to the marriage. Separate property will remain separate after marriage, however, marital property is to be divided fairly between spouses. While “fair” does not always mean a 50-50 split of assets, the breakdown of assets often resembles this in practice. Courts may also require either temporary or permanent alimony be paid if they feel one spouse needs helping continuing to live the life to which they had grown accustomed in the marriage. Temporary alimony is distributed over a shortened period of time, often for as long as it takes for marital property to be divided. Permanent alimony is granted until the spouse’s death or remarriage. Among the factors that are taken into account in determining if and how much alimony should be paid are the marriage's length, the length of separation before divorce, the parties' ages, the parties' respective incomes, the parties' future financial prospects, the health of the parties, and the parties' respective faults in causing the marriage's demise. Alimony is not paid just to women. In fact, it is possible that a wage-earning wife be required to pay alimony to her husband.

As with all legal matters, many of the specific rules and regulations vary state by state. As a result, a lawyer should be consulted before making significant Family Law decisions.

The author of this article can be reached via email at Justice360@muslimcongress.org. For more information about Justice360, visit http://www.muslimcongress.org/360.

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