No Altars: A Survey of Islamic Family Law in the
Asifa Quraishi and Najeeba Syeed-Miller1
The family unit has long served as an organizing system for both social and legal regimes. The mechanisms to contract a marriage, raise one’s children, or dissolve a family are now basic elements of any well-developed legal framework. Central to the establishment of a family law system is the recognition that it will be invoked most often when a conflict occurs between those who are related to each other through the family unit. Indeed, those who focus on family law issues find that “the legal system is perhaps the most obvious manifestation of the value which society places on institutionalized mechanisms for conflict resolution.” (Kressel 1997: 48) Religion has also played a role in defining family interactions and their social consequences. In addition to preserving the future of a religious tradition, the concept of the family contributes to the development of religious law, because the complex financial, social, and legal relationships in the family structure demand constant attention and regulation. Moreover, the intimate nature of family relations often triggers the desire for religious sanction of one’s actions, and most religions have filled this need well. Islam is no exception. Muslim jurists’ fiqh addresses critical aspects of family life in various detail, from the requirements of a valid marriage to mechanisms for divorce, and a variety of questions in between.
Muslims in the United States are in a complex position when it comes to applying family law, because they are governed by two sets of relevant rules, one religious and the other secular: Islamic law governs the family relations of those Muslims who want to validate before God their most intimate relations, while simultaneously, United States law binds them through simple territorial sovereignty2. Considering their religious identities important enough not to sacrifice at any secular altar, many Muslim couples are asserting their Islamic legal rights in American family courts, and as a result, the law surrounding Muslim marriages is becoming an important and complicated part of the American legal landscape.
This paper surveys the application and perception
of Islamic family law in the
This paper will stand out from the overall project (surveying global Islamic family law) of which it is a part, because it deals with Muslims as a minority population in a non-Muslim state, presenting findings about the use of Islamic family law in places where it is not officially enforced by the state. Thus, when considering the question of Islamic family law in the United States, the reader should keep in mind that most family issues involving Islamic law in this minority population are handled informally through internal mechanisms (family, community leaders, close friends, etc.), because Islamic law per se is not enforceable by state authority in the USA. Some cases do rise to the level of formal litigation in US courts, as will be seen, but the cases discussed in Section III may be unrepresentative of all applications of Muslim family law even within the formal court system, and are most probably not representative of applications of Islamic family law in the country as a whole. Nevertheless, despite its limitations in terms of space and scope, this report – aims to provide the reader with a basic overview of how Muslims in the US discuss topics of Islamic family law, the way it impacts their lives directly, how the American judicial system addresses its Muslim minority in these most intimate family issues, and ultimately, what one might expect in the future from this unique community3.
Back to Contents
A. Authority Figures
To understand the wide variety of applications of
Islamic family law that we will encounter in this study, it is important to
first realize that the American Muslim population is made up of a complex and
continuously changing demographic. Of the estimated six to eight million
Muslims in the
This wide range of backgrounds is fertile ground
for the pluralism of Islamic law (its ikhtilaf structure of simultaneously
valid differing opinions5)
and results in a healthy diversity of ideological perspectives among Muslims in
Another wrinkle in U.S. Muslim family law
practices stems from the structure of authority in Islamic jurisprudence.
Because there has never been an official church certifying individuals to speak
on behalf of the religion, the field is open for any dedicated Muslim to seek
to act as imam and lead a community. In a large Muslim society, there are
usually societal checks to help maintain a sufficiently qualified cadre of
these spiritual leaders. Even further, in Muslim countries with a formal system
of shari`a-based family law in place, as well as private pious and learned
individuals available to guide the individual petitioner, there are likely to
be state-recognised and sometimes state-appointed muftis to issue guidance on
issues of law, and state-appointed judges to apply it. In the US, however,
where there are no such checks, the quality of imams tends to run the gamut,
and many take their place with little or no training in critical leadership
areas (such as Islamic jurisprudence, relevant U.S. law and the workings of the
US legal system, or counseling and mediation skills 8).
The impact of this phenomenon on the application of Islamic family law in the
Looking more specifically at what happens in
family disputes, we first see that – as is true worldwide -- many cases are
resolved outside any formal process, whether a court or an imam. In the
B. Intellectual Resources
Muslims in the
1. Accessible Literature9)
Among the more readily available resources are books such as John Esposito’s “Women in Muslim Family Law (Shari’ah),” Abdur Rahman Doi’s “Shariah: The Islamic Law” and “Woman in Shari’ah,” Hammudah ‘Abd al-‘Ati’s “The Family Structure in Islam,” and Yusuf al-Qaradawi’s “The Lawful and the Prohibited in Islam,” which include fairly thorough summaries of classical Islamic jurisprudence relating to marriage and divorce. Topics covered in these works include basic requirements of the marriage contract, rules of guardianship, the provision for dower, types of and grounds for divorce, as well as child custody and other related matters. As is common in modern works on Islamic law, Doi and Esposito’s books also address current realities of family law in Muslim countries such as
For those seeking a more practical resource on Muslim marriage, there are works such as “The Muslim Marriage Guide’ by Ruqaiyyah Waris Maqsood, and Shareefa al-Khateeb’s article “The Marriage Contract,” both taking a conversational tone to offer guidance based on Islamic law and principles to Muslim married couples. Works like these are not legal references on Islamic family law, but rather are focused on translating the basic Islamic rules of marriage to the average Muslim in plain language. Maqsood, whose book offers frank advice on the emotional, spiritual and sexual aspects of married life, has been called “the John Gray of the Muslim world.10)” A similar book, Mildred M. El-Amin’s Family Roots: the Qur’anic View of Family Life, begins each chapter with “Dear Couple” or “Dear Sister/Brother.” Al-Khateeb’s article includes a sample marriage contract, examples of stipulations, and a short list of Islamic legal rules affecting marriage (El-Amin 1991)11).
Resources on Islamic family law often overlap with
literature on the continually popular topic of women and Islam, as is evident
with the number of Muslim family law works including the word “women” in their
titles. Many of these authors seek to critique classical Islamic family law
with an eye to a women’s empowerment, sometimes urging new interpretations of
old text. For example, in May Yamani’s collection “Feminism and Islam,” there
are two chapters reviewing and critiquing patriarchal applications of Islamic
principles drawn from the Quran and hadith (Yamani 1996). Raga El-Nimr’s “Women
in Islamic Law,” focuses on equality of men and women, and specifically
highlights original (but too often neglected) Islamic texts affirming women’s
emancipation (El-Nimr 1996: 87). In the same book, Najla Hamadeh in “Islamic
Family Legislation: The Authoritarian Discourse of Silence,” focuses on the
difficulty Muslim women face in obtaining a divorce or annulment as well as
disfavor in traditional Islamic child custody rules (Hamadeh 1996: 331).
Another collection of essays, “Windows of Faith: Muslim Women Scholar-Activists
Consistent with Webb’s observation, Muslim organizations are also a rich source of information on Islamic law, and Muslim women’s organizations are especially interested in disseminating information about family law, often with a progressive look at well-known issues. For example, the Muslim Women’s League, “a non-profit American Muslim organization working to implement the values of Islam and thereby reclaim the status of women as free, equal and vital contributors to society” includes among its position papers those titled “An Islamic Perspective on Sexuality” and “An Islamic Perspective on Divorce,” among many others12. Another example is “Karamah: Muslim Women Lawyers for Human Rights,” an organization which defines its objectives as seeking to “increase the familiarity of the Muslim community with Islamic, American, and International laws on the issues of human rights,” and “provide educational materials on legal and human rights issues to American Muslim women.13” Karamah’s website lists publications for further study, including family law titles such as “Family Planning and Islamic Jurisprudence,” and “Marriage and Divorce: Legal Foundations,” both by Azizah al-Hibri, founder of Karamah. Of course not all Muslim organizations take a progressive, reformist attitude toward the subject of Islamic family law and women’s rights. Many Muslims advocate more traditional interpretations such as encouraging wifely obedience (in all but directly anti-Islamic behavior), the primacy of motherhood and discouraging public careers involving cross-gender interaction. Examples of this end of the ideological spectrum can be found on websites such as Alsalafyoon, which posts pieces such as “The Duty of a Woman to Serve her Husband,”14 and in books like Muhammad Abdul-Rauf’s “Marriage in Islam,” which, for instance, describes household management as the wife’s primary responsibility (though acknowledging that individual couples may agree on other arrangements). (Adbul-Rauf 1995)
Other relatively easily accessible resources on Islamic family law are books written primarily as historical and sociological resources for a primarily academic audience. These books include works like Amira El-Azhary Sonbol’s Women, the Family and Divorce Laws in Islamic History, Lynn Welchman’s Beyond the Code: Muslim Family Law and the Shari’a Judiciary in the Palestinian West Bank, and Susan Spectorsky’s Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Raywayh. Each of these works (many being collections of works by different authors) includes a chapter or more addressing Islamic family law. Sonbol’s collection is largely made up of empirical studies giving a sense of family law issues as they played out in actual Muslim history, with some special focus on contradicting the attitude that Muslim women were prisoners of Islamic family law. It has section headings such as “Muslim Women and the Sharia Courts,” and “The Ottoman Household,” and includes examples of historical marriage contracts and individual divorce cases. Spectorsky’s “Chapters on Marriage and Divorce” offers historical research of a different kind: it is a translation of marriage-related responsa literature from the classical 9th century jurist and eponym of the Hanbali school, Ahmad Ibn Hanbal. Though she includes a summary of classical Islamic family law in the introduction, this work is primarily directed to specialists who can place the source texts in context. Welchman’s “Beyond the Code,” on the other hand, summarizes the classical law relating to the Muslim marriage contract, but places it in the context of contemporary Jordanian and Palestinian communities.
The final arena of readily-accessible resources on Islamic family law is the internet. This modern technology has created several for avenues for the dissemination and exchange of information on Islam, and Islamic family law is no exception. These fora range from listserve discussion groups (e.g. members of the “sisters” list moderated from Queens University in Canada 15 often discuss the legal and social parameters of Muslim marriage and divorce) to online universities (e.g. the College of Maqasid Maqasid Shari’a 16 offers a 20 credit “Introduction to Family Law” course) and websites devoted to education of family law-related issues, such as “Zawaj.com” 17 which describes itself as “a complete portal site for information and resources regarding Muslim marriage, weddings, family relationships, and parenting.” On its website are posted articles describing the proper relationship between spouses, raising Muslim children, sexuality, and Muslim cases in the courts. There is even a list of recommended scholars to contact for fatwas (Islamic legal opinions), complete with their email addresses18. Another site, called “Loving a Muslim” includes a summary of Islamic family law in its effort to address the “non-Muslim woman in a loving relationship with a Muslim man.19” Beliefnet.com20, the popular interfaith site on religion, includes several links to family law issues in its Islam section, including a review of Maqsood’s “The Muslim Marriage Guide,” and a copy of al-Khateeb’s article on the Muslim marriage contract.
Reviewing all these sources in the context of
current discourse in the
Islamic law on divorce is also a popular topic among American Muslims, as the divorce rate rises and Muslims seek to understand their marital status under both religious secular law. The lay Muslim’s knowledge about divorce generally includes awareness of “talaq” – the husband’s unilateral right to divorce by oral declaration -- but details on its practical application (terminology, revocability, voidability) are less well-known. Alternative methods of divorce such as khul’ (divorce for remuneration conducted through mutual consent) and faskh (judicial dissolution) are further from public consciousness. Again, literature is available to educate the lay American Muslim about these details28, explaining, for example, that mutually consensual khul’ generally entails a certain amount of remuneration from the wife to the husband (usually her mahr) while judicial dissolution (faskh) involves an assessment of blame by the outside arbiters in order to determine the financial rights of each spouse. Moreover, under classical law, a khul’ divorce, like a talaq, is accomplished outside of a litigation procedure entirely -- the parties negotiate their own terms and both their consent is necessary. Judicial dissolution, on the other hand, involves the participation of third party authorities who make a final determination of the fair resolution of dissolution details, and it is in this proceeding that one speaks of “grounds” for divorce. The situation becomes more complicated when one adds in the potential for a wife to include a delegated talaq right in the marriage contract29.
Some Muslims and Muslim organizations in the
2. Less Accessible Literature
The popularly-available resources on Islamic family law described in the preceding section provide fairly good detail on the major legal issues surrounding Muslim marriage and divorce, but there are additional, less easily-available English language resources going into more technical and academic detail on Islamic family law. These sources – such as articles in legal and professional journals, and out of print books – often go a step beyond broad legal summaries, offering for example critiques of legal reasoning in a particular school of thought or presenting the law in a social or historical context. These sources are for the specialists. They are much more detailed than the average American Muslim needs or wants (for example, providing not only that offer and acceptance are required for a Muslim marriage contract, but also discussing the differences in schools of thought on what types of language has what effect in an offer, and so on), but they do exist - with a bit of research effort 31 - for those so inclined.
For example, Mohammad Fadel’s article
“Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The
Case of the Maliki School,” undertakes a detailed legal analysis of the
doctrine of the guardian in Maliki law, not only explaining the legal theory
behind the rule allowing a minor to be contracted in marriage by his or her
guardian, but also critiquing what he determines is a basic legal error in the
Maliki doctrine of emancipation for girls. He also makes the innovative argument
that a local Muslim community should play the role of legal guardian for
Muslims living as a minority in a non-Muslim country such as the
Another aspect of considerable scholarly study is
the Muslim marriage contract and its various elements. Madelain Farah’s
translation of the chapter on marriage from the classical jurist Al-Ghazali’s
“Ihya-Ulum-ud-Din” includes Ghazali’s discussion of the marriage contract, as
well as his thoughts on the basic principles of Muslim marriages, but this
translation is out of print and difficult to locate (Farrah 1984). Yossef
Rapoport’s “Matrimonial Gifts in Early Islamic Egypt” includes a historical and
legal study of the sadaq or mahr provision in Muslim marriage contracts,
tracing the decline of post-divorce maintenance distribution as the practice of
deferred mahr grew in popularity (Rapoport 2000). Ron Shaham’s “State,
Feminists and Islamists – the Debate over Stipulations in Marriage Contracts in
Finally, a complicated area of Islamic
jurisprudence is the dissolution of a marriage, a subject of considerable
academic writing. Among these are M. El Arousi’s “Judicial Dissolution of
Marriage,” Lucy Carroll’s “Qur’an 2:229: ‘A Charter Granted to the Wife’?
Judicial Khul’ in
Whether it is in the form of summaries of
classical mainstream jurisprudence or progressive interpretations of original
religious texts, there is significant information on Islamic family law for
Muslims seeking to educate themselves, either in their basics or the more
complicated nuances of Islamic jurisprudence. There is not enough space to go
into all the details of the substantive law here, but a sampling of the readily
accessible sources will provide the reader with a fairly complete picture of
the mainstream classical Islamic jurisprudence on the primary family law issues
(offer, acceptance, mahr, optional stipulations, types of divorce process, and
so on). Those interested in the more academic, harder to locate, materials will
be rewarded with discussions and critiques of the more subtle details and
nuances of disagreement on discrete legal points within each school of Islamic
law. The average Muslim carries around some understanding of the basics and
very little of the jurisprudential nuances, but how he or she applies these
Islamic laws in the context of
A. Solemnizing the union
The intersection of
B. Terms of the Contract
As for what is included in these Muslim marriage
contracts, most Muslims in the
One case vividly illustrates the significance
vested by some Muslims in their dower agreements: in Aghili v. Saadatnejadi,
the husband threatened not to record the Muslim marriage contract with state
authorities unless the wife first agreed to relinquish that contract and sign a
new one. The original contract included a dower of Iranian gold coins to the
value of $1400 and a provision for a payment of $10,000 as damages for any
breach of contract by the husband. The husband’s threat suggests that he felt
bound by the mahr terms of the initial contract. Also,
Discussions among US Muslim women include debates over the importance of the mahr/sadaq in the first place – some rejecting it as putting a monetary value on the bride, while others advocate it as a financial protection for women in the event of death or divorce and sometimes a deterrent against divorce (especially powerful where there is a large deferred dower)37. There is indeed a dilemma presented by the institution: setting the mahr very high may provide good financial security for the wife and (where deferred) a good deterrence against husband-initiated divorce, but on the other hand, it burdens wife-initiated khul’ divorces, which are usually negotiated with an agreement by the wife to forfeit her mahr, with the significant financial cost of waiving the outstanding amount and returning whatever prompt dower had already been paid. Setting the mahr low, or as only a token gift, has the reverse double-edged sword effect. That is, there is not as much to be lost in returning the mahr if the wife wants to negotiate a khul’ divorce, but she also loses the deterrent effect on talaq divorce by the husband which is accomplished by a high deferred dower. Where the divorce is neither through extra-judicial means of talaq or khul, but rather judicial dissolution by third party arbiters (faskh), the impact on mahr payment does not follow an absolute rule. Rather, the arbiters assess blame and harm caused by the spouses and allocates cost accordingly. Where there is no harm by the wife, she generally keeps all of the mahr (El-Arousi 1977: 14; Quick 1998: 36-39; Ali 1996, 125)38.
As elsewhere in the Muslim world, additional stipulations (e.g. stipulations of monogamy, delegated right to divorce, wife’s right to work outside the home, etc.) further defining the marital relationship of the new couple seem to be much less utilized than dower provisions39, presumably because the dower is obligatory whereas additional stipulations are not only optional but also a subject of little public awareness, and some clauses are even controversial in classical jurisprudence and local community attitudes (Interview 2000). Nevertheless the idea of particularizing one’s Islamic marriage contract is gaining attention in the US Muslim population. Encouraged by Muslim women’s organizations and activists that see the use of additional stipulations as a tool for women’s empowerment, more and more women are educating themselves about how to use the Muslim marriage contract. Says Sharifa Alkhateeb of the North American Council for Muslim Women, “the contract is a tool to help men and women design their future life together so there are no surprises . . . and so women won’t be saying ‘I can’t do this because my husband won’t let me.’” (Lieblich 1997) Far from considering it a new, reformist feminist tool, many see the proactive use of the Islamic marriage contract as a way of protecting their basic Islamic rights. It is this reason that Karamah: Muslim Women Lawyers for Human Rights is working on a model marriage contract, grounded in classical Islamic legal principles, to be used by Muslims worldwide. One visitor to the Karamah website praises a friend for drafting her marriage contract to include clauses on monogamy and equal right to divorce (among others) and comments that many Muslim men unfortunately have a negative attitude toward drafting a marriage contract, considering it an “insult to their ability to behave as model Muslims” and that they “forget that in times of imminent divorce, men and women do become irrational and make demands that are hard to agree upon.40” The potential for women of the marriage contract in Islam has also attracted scholarly interest among academics. According to John Esposito, Islamic marriage contracts were originally intended raise the status of women as, being party to the agreement, women could add stipulations of their own (Lieblich 2001). Carol Weisbrod notes that, “[t]here is considerable interest among Islamic women in the idea of using the contractual aspects of Islamic marriage to protect women’s rights.” (Weisbrod 1999) Of course, such use of the contract stipulations presumes that the woman has the awareness and education necessary to utilize it. This is often not the case and, as Lynn Welchman has pointed out, the Islamic marriage contract system leaves “the protection – or clarification – of rights such as education and waged employment for women out of the law per se and subject to the knowledge, ability and initiative of the individual women not only to insist on the insertion of a stipulation but to phrase it in a manner that gives it legal value.” (Welchman 2000, 180) On the other hand, the marriage contract remains a very valuable tool because its grounding in classical law give a “clear indication of the acceptability of the changing of the more traditional parameters of the marriage relationship.” (Welchman 2000, 180) It is for this reason that many activists take the need for education on the topic of marriage contract law so seriously, and their efforts largely focus on simply making women aware of this tool41. But women’s empowerment is not the only motivation. Those advocating the use of additional contractual stipulations focus not only on their potential to equalize gender-based advantages, but also as a way for both spouses to proactively express partnership in their new, unique union. Ayesha Mustafaa of the Muslim American Society says “[i]t forces conversation on important issues: where you are going to live, whether your wife is going to work, whether she accepts polygamy.” (Lieblich 200142) Similarly, Kareem Irfan, of the Council of Islamic Organizations of Greater Chicago says “[t]he contract forces the bride and groom to have a reality check before marriage.” (Lieblich 2001) What form this reality check takes depends upon the ideologies of the individual couple. For some, that may mean a reaffirmation of traditional roles, such as that the wife won’t go to college or work after the couple has children. (Lieblich 1997) But for others, especially non-immigrant Muslims whose image of married life is very different than the traditional one held in years past. For them, arrangements such as monogamy and equal access to divorce are more or less presumptions in the structure of marriage, and these men are not threatened by a woman’s interest in including these (and other rights-specific terms) in the marriage contract. Indeed, in many cases it is the groom as well as the bride seeking to have such stipulations included43. The attitude of many of these couples is exhibited in the following statement of one Muslim bride: “I love him . . . and I can’t see him [taking a second wife], ever. But we put it in the contract because you never know.” (Lieblich 1997) These young Muslims tend to view the contract drafting process not only as an allocation of rights and duties, but also as an exercise in learning to express their new identity as a couple, and even more importantly, as a way to open up discussion (and determine compatibility) on important family issues (career, children, finances, residence location, etc.) that might otherwise be postponed to more stressful times (Quraishi, 1999)44. In other words, among a growing proportion of the American Muslim population, there is an interest in drafting more detailed, personalized Muslim marriage contracts -- documents that are not a generic stamp of mere legal status conferred by some external authority, but rather, as a full, detailed expression of the way each unique couple defines themselves.
For those who choose to include specific
stipulations in their marriage contract there are many insightful ideas from
which to choose. Islamic history attests to Muslim marriage contracts including
stipulations in which the husband promises not to marry additional wives
(usually with the remedy that the wife may obtain a divorce, or even force a
divorce of the second wife, if this promise is breached), delegates his talaq
divorce right to the wife, agrees not to relocate the family without the wife’s
consent, to never prevent her from visiting her relatives, and to provide her
with servants for household work as is befitting her accustomed lifestyle,
among many others (Rapoport 2000: 14; Fadel 1998: 24-26; Al-Hibri 2000; 57).
Muslims in the United States have already taken advantage of the creativity
allowed in these provisions and have included stipulations limiting visits from
in-laws, that the wife will not be expected to cook or clean, protecting the
wife’s overseas travel required by her profession, and custody of the children
upon death of either spouse (Lieblich 2001; Lieblich 1997)45.
Many clauses affecting the ongoing marital relationship (such as rearing the
children as Muslims, providing household services, allowing a wife to attend
school, and location of the home) are included despite a realization by the
couple that a US court will likely not intervene to enforce such terms (this
topic to be discussed in more detail in the next section). Other terms, such as
a promise not to marry additional wives, have little effect in the
C. Within the Marriage
So far we have predominantly discussed areas where
Clearly the majority of the population does not
engage in polygynous marriages, but views on the practice differ, as can be
seen in a book by Abu Ameenah Bilal Philips and Jameelah Jones titled “Polygamy
in Islaam,” providing a lengthy social and legal justification for the
practice. Moreover, many Muslims themselves committed to monogamous marriages
nevertheless recognize Muslim marriages involving more than one wife as
Islamically valid. Thus, in an online Muslim advice column responding to a
woman wondering how to marry a man already legally married in the U.S. the
columnist does not question the Islamic legalities of such marriage, but
nevertheless advises against it because of woman’s uneasy feelings and apparent
lack of knowledge of the first wife (“Ask Bilqis” 2000). Others, on the other
hand, argue strongly against Muslims participating in such marriages in the
Another area of potential conflict in types of
allowable marriages lies in the question of inter-religious marriages.
Classical Islamic law allows Muslim men but not women to marry non-Muslim
monotheists, those who belong religious communities recognised as people of the
Some inter-religious marriages involving Muslims
are intercultural marriages between indigenous US citizens and immigrants. When
the immigrant is the husband, mainstream
Stereotypes also frequently confuse religion with
culture, again leading to mistakes about what exactly is part of Islam and
Islamic family law. For example, though arranged marriages (in various forms,
ranging from complete parental control against the wishes of their children to
family-arranged meetings of a potential couple) are found in many Muslim
cultures (Indian, Arab, etc.) (Haddad & Lummis 1987: 149-151. Islamic
source texts do not require third party intervention as a necessary or even
preferred process of finding a spouse. Muslim scholars in the
This attitude, of course, disrupts the family unit with its acceptance of violence and general instability, and even more seriously if it drives the wife to flee the household or causes social workers to remove children from a dangerous family setting. Recently, the Muslim community has begun to recognize the problem of domestic violence, publicly speak against it67, and take proactive steps inspired by Islamic principles to respond to the situation (Nadir 2001: 78; Alkhateeb 1998: 17; Syed 1996; Memon 1993). For example, the Peaceful Families Project, a program funded with a $76,000 grant from the U.S. State Department and spearheaded by Sharifa al-Khateeb, has held conferences in several major American cities dedicated to educate and advise the American Muslim public to combat domestic violence in Muslim families (Kondo 2001). Moreover, a number of Muslim organizations have been established specifically to assist battered Muslim women, or have developed programs targeted at this objective, through education, creation of shelters, and providing legal and counseling assistance68.
D. Dissolution of American Muslim Marriages
Most Muslims pursuing divorce are careful to
follow local state rules in order to ensure its recognition under
In a minority of cases, Islamic divorces are
conducted outside the American system altogether, either by a husband’s private
talaq declaration or through a third-party determination by local Muslim
arbiters, and the parties fail to file any divorce documents under state rules70.
Such divorces would lack validity under
E. Deliberately Opting out of US Default Rules
Some Muslims are proactively interested in ways to
legitimately opt out of
But community property is not absolutely
mandatory, even in community property states. One can opt out of community
property by executing a valid prenuptial agreement to that effect, but few
couples have the knowledge or foresight to arrange this74.
A complicating concern is the possibility that the mahr agreement will
be insufficient or not ultimately enforced, and therefore opting out of
community property distribution will leave a Muslim woman with neither shari`a-based
nor secular-based adequate support. Ironically, there are historically
established financial compensation norms in Islamic law aimed at responding to
the same problem to which community property laws are addressed. Azizah
al-Hibri (2000, 57) points out in this respect that under classical Islamic
law, wives who perform household chores are entitled to financial compensation
from their husbands for this work (or, where the woman is has become accustomed
to it in her social circles, to have paid help to do it for them because such
work is not a religious obligation. While some Muslim countries today are
seeking to revive this principle in practical terms in financial distributions
the doctrine remains unknown among most lay Muslims, in the
We now turn to the question of how Muslim
marriages have fared in the
A. Validity of Muslim Marriages
The question begins at the beginning – whether a
Muslim marriage will be recognized as valid under domestic
When there is no documentation of a marriage at
all, Muslim or secular, then the court is faced with the difficult question of
determining whether there was a “putative” marriage (or in some states, a
“common law” marriage). This is what happened in Vryonis v. Vryonis, a
1988 case in California in which a couple entered into a private mut`a
marriage (a marriage for a temporary period of time recognized under Sh`ii
but not Sunni Islamic jurisprudence with no written documentation or
witnesses. The court of appeals rejected the trial court’s inquiry into the
wife’s reasonable belief in the validity of her marriage under Islamic law, and
instead inquired into whether she had a reasonable belief of a valid marriage
Finally, there have been some cases of marriages
held invalid by the courts where the Muslim parties are found to have violated
basic norms of justice as recognised in the
B. Enforceability of Specific Marriage Contract Provisions
The question of judicial enforcement of the terms of marriage contracts is important to Muslims because, as a minority community in a secular legal system, the only authority with physical state power to which individual spouses can turn when their partner breaches a marital agreement is the domestic courts. While local Muslim authorities (scholars, imams, family elders) are widely used to assist conflicts internally, these authorities ultimately rely on voluntary compliance by the parties; they do not have the police power necessary to force compliance against a recalcitrant spouse. However, courts interpreting complex personalized Muslim marriage contracts face a dilemma because there is a judicial preference to not interfere in an ongoing marital relationship (Rasmusen and Stake 1998: 484)82. Thus, clauses that demand compliance during the life of a marriage (such as a spouse’s right to complete an education, a promise of monogamy, or the nature of raising the children), even if they do not offend public policy, are rarely the subject of judicial oversight. If the marriage is at the point of breakdown, however, the court may be willing to include breach of marital agreements in its calculation of damage remedies for the violated spouse. This is often frustrating for those who would have preferred to maintain the marital relationship as agreed, rather than receive damages for its dissolution. As American legal scholar Carol Weisbrod (1999, 51) puts it: “in many family law cases, money is not an adequate remedy . . . [but] other more direct remedies may be barred because, for example, personal services contracts are not specifically enforceable and the United States Constitution guarantees the ‘free exercise of religion,’ with all the complexities of that idea.” As will be seen, this may have serious consequences for those relying on agreements regarding the religious upbringing of the children.
Provisions regarding the mahr/sadaq in a
Muslim marriage contract are somewhat easier for the courts to handle because
they usually are already defined in terms of a monetary amount payable upon
dissolution of the marriage – a secular concept understandable to US judges.
Nevertheless, judicial opinions across the
On the other hand, some state courts have been
more understanding of the concept of mahr/sadaq in a Muslim marriage. In
The sadaq is the Islamic marriage contract. It is a document which defines the precepts of the Moslem marriage by providing for financial compensation to a woman for the loss of her status and value in the community if the marriage ends in a divorce. This court has previously determined that sadaq may be enforceable in this court.
In this case, the court ultimately ruled the sadaq
at issue to be unenforceable, but it did so in a way that is more instructive
to Muslims. In Fahnrich, the
The need for clarity arises in another clause
often included as standard in Muslim marriage contracts: many Muslim marriage
contracts include a sentence stating something to the effect that the marriage
is governed by Islamic law, and these sorts of clauses have been found by one
court to be insufficiently clear to warrant court enforcement of its terms. In Shaban
v. Shaban, the
There are two interesting aspects of Shaban
that are relevant for our study here. First, the court’s rejection of the
entire contract because of a clause stating it is governed by “Islamic law” is
important to Muslims because most, if not all, Muslim marriage contracts
include this type of statement. This is true even of marriage contracts drafted
The other interesting thing about the
Another aspect of these cases is that they show, in general, that for those courts that do undertake the effort, they have been fairly good at understanding the relevant Islamic jurisprudence defining the nature of a Muslim marriage contract, in order to discern which elements it can enforce as a secular court. These judicial understandings are largely from their own research as well as Muslim expert witnesses presenting courtroom testimony. Though they often disagree with each other in a particular case and frequently leave out jurisprudential details, the outcome of the cases indicates that, by and large, these experts have served to give the judges a rather good idea of the important elements at work. In one case, an appellate court even corrected its trial court in understanding the nature of Muslim wedding officiants. In Aghili v. Saadatnejadi 1997, the Tennessee Court of Appeals, citing expert testimony, explained:
In contrast to Western religious teaching and practice (particularly in Christianity, both Catholic and Protestant, but also to some extent Judaism) Islam from its inception to the present has consistently rejected the distinction between clergy and laity. Islamic law stipulates quite precisely that anyone with the requisite knowledge of Islamic law is competent to perform religious ceremonies, including marriage. One is not required to have an official position in a religious institution such as a mosque (masjid) in order to be qualified to perform such ceremonies.
This understanding of Muslim wedding officials (and imams in general), though it overstates the facts in assuming there is a need for an officiant at all (Islamic does not require one), but it is instructive in accurately trying to appreciate the different structure of religious authority in Islamic law as compared to other religions, and does so in a respectful way. There is here an appreciation that a Muslim marriage does not have to look like a Christian one, and need not have an altar or a minister in order to be valid. In this case, the court’s awareness resulted in its rejection of the husband’s claim that his marriage was not valid because the officiant was not a real “imam.” Said the court, his “right to bear the title imam is irrelevant.” Of course, the education of judges is not uniform across the US (as the Dajani case exemplifies), but this review of the case law indicates an overall positive picture, especially in those states that have more experience with minority religious legal traditions, such as New York.
By way of a final note on secular court
understandings of mahr/sadaq clauses, it is worth noting that Muslim
jurisprudence, classical and modern, identifies a number of functions fulfilled
by the institution of mahr, whether in its status in the contract or
more broadly in the social life of particularly the wife. A number of these
functions have been identified by
At present, US Muslim attorneys differ over the
viability of pursuing the enforcement of mahr/sadaq provisions in the
courts. Some believe it to be generally a losing proposition, citing local
cases they have seen where the mahr was denied (Kadri Interview 2000).
Others are optimistic about the future of mahr recognition in the
Reviewing the history of the subject in general,
it appears that interest in enforcing mahr provisions in the courts has
taken particular hold in the Muslim community over the past five years or so.
In earlier years, Muslim couples apparently tended to opt for informal
recognition, voluntarily enforced through internal channels. As more and more
Muslims draft formal Muslim marriage contracts in the
As for the enforceability of contractual
stipulations other than the dower, there is much less case law because, as
noted earlier, these sorts of stipulations are less popular in Muslim marriage
contracts, and have even less frequently become the subject of full litigation
ending up in published case reports. One stipulation many Muslims wonder about
is a clause regarding the religious upbringing of the children, a relatively
popular clause in inter-religious marriages. Specifics vary from state to
state, but generally, agreements that a child will be raised in a particular religion
are not enforceable in a prenuptial agreement, but if included in a separation
agreement (when the marriage is ending) it is usually recognized. For example,
in Jabri v. Jabri, a
C. Validity of Muslim Divorces
The basic rule governing the validity of divorces
in US courts is “lex domicili,” that is, the validity of the divorce is
dependent upon the law of the domicile of the parties (Reed, 1996, 311). Thus,
where it is sought to enforce Muslim divorces conducted outside the
Of further interest to the Muslim community is the
treatment of domestic non-judicial divorces – those accomplished by verbal talaq
or through formal approval by a local Muslim imam. These have not fared well.
In Shikoh v. Shikoh, the federal Court of Appeals for the Second Circuit
held that a religious divorce granted by a local shaikh failed to
constitute a “judicial proceeding” which was required for all legitimate
Looking over these cases as a whole, one might notice that they reflect a basic western assumption built into the judicial reasoning – i.e. that a divorce has to be somehow officially recognized by some official body, even in a Muslim country, in order to be legitimate. However, Islamic laws of divorce do not follow this same premise, as private declarations of divorce (talaq) or private mutually-consented divorce agreements (khul’) are nevertheless given legal validity in Islamic fiqh. Of course, modern Muslim countries, with variations on classical Islamic law as their legislated codes, generally require something more for legal recognition of a divorce, even if only a registration of an extra-judicial divorce with authorities. The question that has apparently not yet reached a US court is whether it would recognize an extra-judicial talaq or khul’ divorce if it had been registered with the state as a divorce deed, and therefore perfectly valid as a divorce in that particular country (as is the case in Egypt or Pakistan, for example) but not the subject of a “judicial proceeding” as required by this US case precedent. If the question is ever raised and the court is willing to undertake a study of Islamic law in order to answer it, one might argue that the rationale behind the “judicial proceeding” requirement is the due process principle of notice and the right to be heard99, and therefore khul’ divorces (obtained extra-judicially but with mutual consent of both parties) should be recognized but talaq divorces (whereby a husband merely declares the divorce with no necessary consent or even notice to the wife) should not. This level of Islamic law awareness and analysis, however, can only be hoped for, as the cases summarized thus far illustrate the serious misunderstandings of Islamic law upon which some of these cases have been adjudicated.
The divorce cases requiring a “judicial
proceedings” and other cases where Islamic legal norms are rejected for
violation with public policy, tend to reflect the presumption that the secular rules
which override religious laws are somehow better, fairer, and reflect more
progressive views on women, children, and human rights. Yet, US Muslim scholars
might take issue with this presumption, pointing out that in some cases,
Islamic law is more progressive and beneficial to women than its secular
counterpart. For example, the institution of khul’ divorces, allowing a woman
to end a marriage (for the price of her mahr) without having to go through the
long and often painful process of divorce litigation is might be seen as a very
useful tool for women. Moreover, the right to a mahr is so central to Muslim
consciousness that it is usually the only marital stipulation Muslim women are
aware they must include in their marriage contracts. Many see the deferred mahr
as meaningful deterrence against a hasty divorce by the husband, and the prompt
mahr as a means of ensuring financial security and independence to women who
may or may not have an outside income. When a
D. Child Custody
As in every community, many Muslim divorce cases
necessitate a custody determination. Islamic family law can arise in these
cases when one party asserts classical shari’a custody rules based on
the age and gender of the children (Doi, 1989, 37)100.
Such claims may play a large role at the informal level (mediated divorce
settlement agreements, for example) in the US Muslim community, but published
case law focuses mainly on the validity of overseas custody decrees from Muslim
countries. There is not a huge amount of published case law on this subject,
Some courts have recognized the child’s religion
as a legitimate factor to be considered in a “best interest” analysis, for
courts in a society where religion is centrally important. Thus, in Hosain
v. Malik, a
we believe it beyond cavil that a Pakistani court could only determine the best interest of a Pakistani child by an analysis utilizing the customs, culture, religion, and mores of the community and country of which the child and -- in this case -- her parents were a part, i.e., Pakistan. . . . [B]earing in mind that in the Pakistani culture, the well being of the child and the child’s proper development is thought to be facilitated by adherence to Islamic teachings, one would expect that a Pakistani court would weigh heavily the removal of the child from that influence as detrimental.
Judicial consideration of the religion of the child in “best interest” analyses is not limited to review of international decisions. Some courts have found it relevant as a positive factor in their own “best interest” evaluation, for example, where religion has been an important part of the child’s life until that point) but again, the importance given to this criterion varies widely from state to state102.
Returning to Hosain, it is interesting to
note that the court there viewed classical Islamic custody rules as not
necessarily contrary to public policy. Said the court, we would be obliged to
note that we are simply unprepared to hold that this longstanding doctrine [hazanat
– i.e. custody] of one of the world’s oldest and largest religions practiced by
hundreds of millions of people around the world and in this country, as applied
as one factor in the best interest of the child test, is repugnant to Maryland
public policy. Not all American courts are so reluctant to condemn classical
Islamic custody rules outright, however. In Ali v. Ali 1994, for
example, a New Jersey court rejected a Palestinian custody decree as not in the
“best interests of the child,” commenting on the law applied by Palestinian
shari`a courts in Gaza that automatically entitles the father to custody of a
son at age seven in the following terms: “such presumptions cannot be said by
any stretch of the imagination to comport with the law of New Jersey whereby
custody determinations are made based upon the ‘bests interests’ of the child
and not some mechanical formula.” Incidentally, this attitude also finds an
audience in legal academia;
In order to fully appreciate the current
developments in the broader picture of Muslim family law in the
The theoretical basis for creating a new legal
methodology for Islamic family law finds its origin in the early efforts of
Muslim thinkers within the western academy. For example, scholars such as the
late Ismail Al-Faruqi called for the “Islamization” process of all western
disciplines (Al-Faruqi, 1982). Some of the intellectual forbears of this
movement include Muslim scholars such as Muhammad Abduh and Rashid Rida, from
the end of the nineteenth and early this century. Aduh and his follower Rida
have been characterized by Wael Hallaq as those who had to “steer the middle
course between the conservative forces advocating the traditional status quo
and the secularists who aimed to replace the religious law by non-religious
This involved, first, the turning of the Muslim focus onto western thought and
creating an environment where Muslim scholars began to distinguish between a
full blown condemnation of all western thought and the possibility of
reconciling various forms of knowledge. Al-Faruqi’s legacy is found in works
that present an Islamic viewpoint on disciplines as diverse as linguistics and
physics. The late Fazlur Rahman was another scholar who engaged with issues
facing modern Muslims and proposed specific strategies for addressing them. One
of Rahman’s specific contributions was the focus on the ethics of revival and
emphasizing the link between morality and legal thought (Rahman 1982). The
works of these and other scholars have opened the door for many new generations
of reformers and thinkers who are grounded firmly within the Muslim tradition
but are able to employ also concepts from other sources. In the area of Islamic
law, and specifically usul-ul-fiqh (jurisprudential theory), Muslim
scholars in the
Bridging the worlds of Islamic and
Another Muslim law professor, Azizah al-Hibri, has
contributed to the on-going dialogue of women’s rights and Islam, publishing
extensively on Islamic law issues especially affecting women (Al-Hibri, 1998,
1997, 1995, 1982). Professor of Law at the University of Richmond School of
Law, al-Hibri is also founder of Karamah: Muslim Women Lawyers for Human
Rights, and frequently makes presentations in both domestic and international
fora speaking on sharia-based legal mechanisms to protect the human rights and
welfare of Muslim women. Finally, there are diverse perspectives on the use of
classical scholarship and its connection to modern interpretations. Khaled Abou
El Fadl, Professor of Law at the
The precarious position of being a part of a
minority Muslim population has informed not only Muslim legal scholars, but
also another group of reformers who have focused on activism as a tool to
introduce new positive and creative responses to some of the legal needs of the
community. For example, the difficulties of explaining Islamic family law to
domestic courts and institutions, some of them illustrated in the review of
case law undertaken above, as well as the desire to resolve intimate matters
with those who share the same faith-based system of ethics and morals, has
prompted some members of the Muslim community in recent years to examine the
viability of establishing local Muslim tribunals. Similar efforts have been
embarked upon in the
The attitude of the US courts to the rise of these
tribunals is yet unknown, but there is indication that some judges would
welcome the existence of reliable arbiters of Islamic family law issues, and
may even be undertaking their own consultation from Muslim authorities in the
interim. For example, in a recent divorce case in
Muslims in the
This feeling of individual obligation has been manifested in the creation of various organizational structures seeking positive change in the form of activist, grass roots activities, and education of the Muslim and non-Muslim public on issues of both Islamic and U.S. law. One example is Karamah: Muslim Women Lawyers for Human Rights, noted before in this article, an organization which has been involved in engaging both the Muslim and non-Muslim communities on the topic of human rights and women. Its activities include participation in the Fourth United Nations World Conference on Women, and inter-religious forums on women’s rights issues109. Through this work Karamah has provided a critique of mainstream secular and Islamic opinions on legal issues relevant to women. Also relevant to our study here, Karamah includes among its current projects the creation of a model marriage contract for use by Muslims seeking to protect their Islamic rights through the classic shar`i tool of the marriage contract110.
Another organization of interest to our study and
mentioned above is the National Association of Muslim Lawyers (NAML)111.
Initially established in 1995 as a web-based community listserve forum for
discussions and networking among Muslim lawyers, this organization has now
evolved into a formal organization addressing the needs of the burgeoning
Muslim legal community. Its annual conferences have covered topics of interest
to those following the legal situation of Muslims in the
The increased use of web-based communication has
greatly contributed to the formation and expansion of unprecedented and
spontaneous debates on Muslim family law issues such as marriage, divorce and
child custody. In addition to the domestic impact of discussion groups as the
NAML email list, the use of web pages to disseminate various new doctrines and
religious rulings has a tremendous effect on the international discussion of
Islamic family law. The active nature of the American Muslim community online
has placed it in an influential position in these global discussions of Islam
and Islamic law. For example during the Bosnian War, a Muslim website based in
The US Muslim experience is contextualized in a
democratic, secular society. This particular social and political milieu has
influenced the types and range of participants who are engaged in the
establishment and interpretation of Muslim family law systems in the
Another element that must be acknowledged is the
ability of US based Muslim scholars to express their diverse political and
religious perspectives, a freedom that exists because there are no relevant
blasphemy laws in the
This survey has sought to catalog and explain the
nature and application of Islamic family law within the US Muslim community.
The potential of this community is evident by the wide range and depth of its
contributions in this area. This study has demonstrated that Islamic family law
as manifested in the
Another major potential problem lies in the need to differentiate between culture and religion. Enmeshed in this particular question is the role of cultural practice and interpretation. While a cultural practice may actually protect the family rights of an individual, when the family serves as a negotiating representative in marriages, it is possible that a cultural pattern of family interaction can be more limiting than the constraints actually set by religious law (Hashim Interview 2000)114. The Muslim community will have to sift through its multi-cultural history and traditions and decide which practices will be preserved and which will be discarded if they do not fit an appropriate religious and societal agenda. Creation of a unified agenda or perspective will remain a challenge for this community. At the heart of this issue is the fact that there remains on-going internal debates in the United States Muslim community as to who should be in-charge or involved in formulation of community-wide agendas. In some instances, gender has remained a barrier to the full involvement of Muslim women. Different cultural practices are reflected in women’s space in a mosque. For instance, The Mosque in America report notes that there is an increasing practice of separating women in prayer from men by a hung cloth, or having them pray in another room (Bagby, Perl and Froehle 2001: 11)115 While this is not definitive evidence that women are not a part of the general community space, it is interesting to note that there is an increasing trend towards gender segregation in the mosque environment. The study did not make the conclusion that certain cultural groups had higher levels of segregation in their mosques. This would be a relevant topic to explore in future studies and would provide the analytical tool to differentiate between cultural variables that affect gender participation and religious interpretations that are used to justify segregation. Finally, the reality of class differences amongst Muslim Americans has been an ongoing divide. For instance, actions of the immigrant Muslim community have included acknowledgement that they “had been guilty of ignoring the persistent and social problems of the indigenous Muslims” (Dannin 2000: 26).
Another important challenge for the future of
Islamic family law in the
1. Our sincere thanks to Steve Vieux and Abed Awad for their helpful research assistance, and to all those who shared their experiences and expertise in our interviews with them. See attached interview list.
family law itself has religious Christian origins, as acknowledged in Bradwell
material for this paper is comprised of: interviews with professionals who
serve the US Muslim community, legal research of current United States federal
and state case law, review of general literature (books, magazines, newspapers)
addressing issues concerning Muslims in the United States , internet searches
of Muslim-related sites, and the professional experiences of the authors. As
the research time was constrained due to publication deadlines, the report is
itself quite limited, and makes no claim to be exhaustive of all issues,
resources, scholars, and other elements potentially relevant to this topic. For
surveys conducted by other sources, see Yvonne Haddad and Adair Lummis’, Islamic
Values in the United States: A Comparative Study.
4. American Muslim
Council, “Muslim Census Inaugurated,” The AMC Report 2, no. 2
(Summer/Fall 1992): 1 (including chart depicting Muslims in the U.S. Ethnic
percentages). The number of Muslims in the
5. See Asifa Quraishi, “The Plurality of Islamic Law,” Azizah magazine, p. 20, Summer 2001 (WOW Publishing, Atlanta, GA); Taha Jabir al ‘Alwani, The Ethics of Disagreement in Islam (chapter on “The Meaning and Nature of Ikhtilaf”) (Herndon, Virginia, International Institute of Islamic Thought 1993); Khaled Abou El Fadl, The Authoritative and Authoritarian in Islamic Discourses: A Contemporary Case Study (“. . . . a major contributing factor to the diversity of Islamic theological and legal schools is the acceptance and reverence given to the idea of ikhtilaf (disagreement)”) (Austin, TX Dar Taiba 2d ed. 1997) 18.
6. Elaine Sciolino,
“The Many Faces of Islamic Law,” New York Times
7. See sec. I.B
(“Intellectual Resources”) and sec. II (“The Muslim Family in the
8. Yvonne Haddad and
Adair T. Lummis, Islamic Values in the United States: A Comparative Study
(New York: Oxford University Press 1987) 43 (discussing imams in
9. The resources discussed in this section are generally available through U.S. Muslim booksellers. For a comprehensive list, refer to web-based Muslim booksellers (such as www.astrolabepictures.com) or inquire at most local bookstores for general works on the area of Islam.
10. Hina Azam, “The Muslim Marriage Guide”: A Review – The John Gray of the Muslim world, Maqsood offers candid advice on sex, with a touch of some old-fashioned values. Www.beliefnet.com (section on Islam, marriage).
11. See infra section ____ for more discussion of the resurgence of interest in Muslim marriage contracts.
www.mwlusa.org. The Muslim Women’s League is based in
14. See www.alsalafyoon.com.
18. Similarly, the Canadian Society of Muslims includes on its website many sources of Islamic jurisprudence, as well as articles on “Family Matters” addressing such topics as birth control and abortion, adoption, custody and guardianship, polygamy, arranged marriage, and women’s rights in an “Islamic prenuptial agreement.” See www.canada-Muslim.org.
21. Alkhateeb 1996, 15. Similarly, another source says: “The Islamic marriage contract is meant to solidify bond and specify stipulations that are important to both parties. The contract is intended to safeguard present and future legal rights of both the husband and wife, should encourage marital harmony, and should keep the family within the boundaries of the Quran and Sunnah for the pleasure of Allah.” See The Marriage Contract,” http://geocities.com/lailah2000/contract1.html, p. 2.
22. A Conference on The Islamic Marriage Contract,” Harvard Law School Islamic Legal Studies Program, January 29-31, 1999 (audiotapes on file with Harvard Law School Islamic Legal Studies Program, and selected presentations featured in forthcoming publication, “The Islamic Marriage Contract: Case Studies in Islamic Family Law,” Harvard University Press, planned 2003).
23. Lieblich 2001.
24. A Conference on The Islamic Marriage Contract,” Harvard Law School Islamic Legal Studies Program, January 29-31, 1999 (audiotapes on file with Harvard Law School Islamic Legal Studies Program, and selected presentations featured in forthcoming publication, “The Islamic Marriage Contract: Case Studies in Islamic Family Law,” Harvard University Press, planned 2003)
25. For popular dissemination of this information, see Alkhateeb 1996 (listing sample stipulations) and Mills (making similar suggestions). For a more detailed, academic discussion of contract stipulations, see Welchman, 35 (discussing stipulations such as monogamy, delegated divorce, place of residence and work outside the home, and commenting that stipulations can make a difference in protecting certain rights of the wife); Shaham, 464 (listing typical stipulations in marriage contracts in sixteenth century Egypt and the modern marriage contract project in Egypt); and Abou El Fadl 1999.
26. Compare, e.g., Mills, (leaving out Islamic jurisprudential differences in list of suggested stipulations in the marriage contract) with Abou El Fadl (explaining general Hanbali allowance of contractual stipulations, other schools’ reluctance, and legal devices created to accomplish similar goals)
28. See resources listed in this section (“Accessible Literature”) and the next (“Less Accessible Literature”).
29. See Al-Hibri 1997 at p. 28 (noting differing validity depending on school of thought); Welchman at p. 167; Lucy Carroll, Talaq-I-Tafwid and "Stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife,” Modern Asian Studies, xvi (1982) p. 277.
30. See www.Mwlusa.org (Position Paper titled “An Islamic Perspective on Divorce”) Similarly, the Muslim Women’s League points out that classical custody laws (deciding custody based on abstract rules of the age and gender of the child) are among those that must “adapt to dynamic circumstances,” commenting that there is “no Quranic text to substantiate the arbitrary choosing of age as a determinant for custody.” Id. The League urges similar flexibility in determining alimony awards as well.
31. These materials should be locatable via any good university or law library, especially those which put special emphasis on international legal materials. The Encyclopedia of Islam, published by Brill, is also a good source of information in its entries such topics as “mahr,” “mut’a” and so on.
32. See, e.g., Akileh v. Elchahal, (involving two separate marriage contracts – an Islamic “sadaq” and then a civil ceremony the following day incorporating the “sadaq” document specifying the wife’s dower); Ahmed v. Ahmed, (describing religious ceremony separate from civil); Ohio v. Awkal (describing two separate marriage ceremonies, civil and Islamic, on separate dates); Dajani v. Dajani (Jordanian couple married by proxy in Jordan, followed by civil ceremony in the U.S. when wife arrived); Al-Sarraf Interview (describing Muslim couples generally having a Muslim ceremony first, and then taking care of state requirements).
33. See, e.g., Tazziz v. Tazziz (marriage ceremony in the United States, according to Islamic law), NY v. Benu, (marriage performed by local New York City imam not authorized in City Clerk’s office to perform marriages); Awad Interview (describing mosques in New York and New Jersey performing weddings with no state licensing); McCloud, 140 (urging Muslim women in US to get civil documents of both marriage and divorce). Some US Muslims, less concerned with Islamic law per se, may have only the civil ceremony, forgoing the Muslim one entirely, but these cases do not fall within the subject of this paper.
34. See, e.g., Farah v. Farah, (deferred mahr of $20,000); Akileh v. Elchahal (immediate sadaq of $1 and deferred $50,000; noting that when he proposed, the husband “recognized that wife had the right to a sadaq”); NY v. Benu (sewing machine as dower).
35. Marriage Contracts on file with author (Quraishi). Islamic history verifies the use of non-monetary mahrs. For example, a hadith from the Prophet explicitly validates the teaching of sections of the Quran ( Doi 1984, 163 ) and the shahada (declaration of Islamic faith) of the groom as dower. Ibn Sa’d, 279 (describing Umm Sulaim’s marriage to Abu Talha, stating “her dower was the Islam of Abu Talha”).
36. Kadri also commented on her experience with clients whose only interest in attempting to enforce a mahr provision is in unfriendly divorce proceedings, with the demand for a high mahr being used as an opportunity to punish the husband.
37. See, e.g., listserve email discussions on “Sistersnet” (email@example.com) in 1996-1998 (notes on file with authors).
38. Shaheed Sardar Ali comments that when divorce litigation is bitterly contested by a Muslim husband, it is often not because he does not want a divorce, but rather because he does not want to pay the mahr.
39. Kadri Interview (commenting that brides and grooms tend to simply fill in mahr provision in standard boilerplate contracts and rarely add specified provisions). That the insertion of special stipulations is the exception rather than the rule is shown by the fact that in interviews with four Muslim family lawyers, none reported seeing any particularized contracts of this sort (interviews with Abed Awad, Sermid Al-Sarraf, Cherrefe Kadri, and Houeida Saad).
40. Email message to Karamah responding to Marriage Contract Project announcement (on file with author Quraishi). Another visitor to the website expressed dismay at not having a formal marriage contract written at her wedding, and asked if it is possible to create one retroactively.
41. See, e.g., www.Karamah.org.
42. This is also the position of Mona Zulfiqar, who spearheaded the marriage contract legislative efforts in Egypt. She says one of the most important aspects is to “’encourage frankness, mutual understanding and dialogue’ between the spouses, reduce the need to have recourse to the courts in difficult and bitter litigation procedures.” (Welchman 2000, 181).
43. This is indicated by four out of the nine couples in which one author (Asifa Quraishi) provided marriage contract information.
44. One of the brides assisted by this author (Quraishi) writes “It wasn’t always easy to discuss the topics of our contract but in the end the entire process has brought me and … my fiancé so much closer and we have grown stronger.” Personal email on file with author.
45. Quoting Samia El-Moslimany saying “I put in that the burden of domestic chores was going to be shared by both of us . . . . My father thought it was trivial, but I wanted it in the contract.”
46. See, e.g., Aghili v. Saadatnejadi (providing $10,000 damages remedy to wife if husband breaches contract).
47. McCloud 2000, 141-142.
48. See www.mwlusa.org (Position paper on Marriage in Islam).
50. Noting over a third of respondents reported marriages of Muslim women to non-Muslim men in their families; and noting that number of Muslim men marrying non-Muslim women is larger.
51. Some Muslim women whom we interviewed expressed the opinion that the man’s freedom to marry outside the faith is neither fair nor conducive to preserving the Islamic faith in future generations born in America.” (Haddad and Lummis 1987: 146). Robert Marquand quoting a father saying “I will have a huge problem if my son marries a non-Muslim . . . and will do everything I can do to stop it.” (Marquand 1996).
52. See “Why Muslim man should not marry a non Muslim woman,” www.soundvision.com/marriage/nonmuslimwoman.
53. In one extreme example, Marquand, 1996, reports some members of one Muslim community sought to displace a leader whose daughters had married non-Muslims, arguing that such a failure should cause him to “lose his status in the community
54. For example, says one Muslim woman, “I love the religion with all my heart, but I don’t like that the women don’t have choice.” (Todd 1997).
55. Betty Mahmoody and William Hoffer (contributor), Not Without My Daughter (St. Martins Mass Market Paperback 1993 (1st ed. 1987)); Not Without My Daughter, MGM Studios 1991. This movie depicts the true story of Betty Mahmoody's escape from Iran with her daughter after her Iranian husband attempted to turn a two-week vacation into a permanent relocation of the family).
58. For more information about such stereotyping, see the works of Jack Shaheen including Arab and Muslim Stereotyping, (Washington, D.C. Georgetown University Center for Muslim and Christian Understanding, 1997). In addition, refer to Council of Islamic-American Relations, www.cairnet.org website for details on Muslim stereotyping and hate crimes. Another source on Arab stereotyping is the Anti-Arab Discrimination Committee, www.adc.org. These two groups and other advocacy organizations have attempted to decrease negative images and references to Muslim and Arab Americans.
59. In fact, Betty Mahmoody, author of Not Without My Daughter herself, has served as an expert witness in a few cases involving Muslim marriages. (Gustafson)
60. See other sources cited in section I.B.2
61. Describing a “traditional Muslim wedding in Walnut,” including many things not included in other Muslim ceremonies, such as dancing, singing, bride and groom sitting side by side, and the bride’s head covered.
62. See sources listed in II.B.
63. Marquand quotes one Muslim saying, “Sometimes male domination is machisimo, sometimes it is genuine faith.”
64. Ben Winton reported the story of a severely injured Muslim woman stating that her husband believed Islam allowed him to beat her.
65. Memon provides a summary of Islamic texts (including Quran 4:34) used to justify battery, showing the misinterpretations by those who do so, and urging the American Muslim community to recognize and fight against domestic violence in their community.
66. Kadri notes a conversation with a woman complaining of son beating her but who would not complain of such actions by her husband because she believed it is his right to do so. Attorney Kamran Memon notes that some imams tell these women to “be patient and pray for the abuse to end”, urging them not to leave their husbands and break up the family, and not break family privacy by talking about it to others.
67. Also featured on www.zawaj.com website.
68. These include (as a very brief sampling) the National Islamic Society of Women in America (NISWA), www.niswa.org , Baitul Salaam (House of Peace), http;\\alnisaa1.hypermart.net, P. O. Box 11041 Atlanta, GA 30310; Kamilat,www.Kamalit.org; Karamah: Muslim Women Lawyers for Human Rights, www.Karamah.org; the Muslim Women’s League (who co-sponsored the Los Angeles conference of the Peaceful Families Project), www.MWLusa.org, and “Muslims Against Family Violence,” a project of “Stepping Together,” www.steppingtogether.org. For example, Niswa’s domestic violence shelter lists the following goals: “prevent domestic violence, aid victims of abuse by providing supportive services and programs designed to break the cycle of violence, reduce the effects of domestic violence through education and advocacy, provide intervention and referral services, provide shelter for battered women and their children.” www.niswa.org.
69. The National Association for Muslim Lawyers (NAML) offers on its website (www.namlnet.org) a searchable online database of Muslim attorneys, including specifications of fields of expertise, language skills, and so on.
70. In Seth v. Seth, a non-Muslim male had converted to Islam after a marriage contracted under US civil law and subsequently divorced this wife by talaq and married a Muslim woman in a Muslim ceremony. In Shikoh v. Shikoh, the husband, an Indian national, declared divorce before a Brooklyn imam before witnesses, signed and sent a copy of the imam’s documentation of the declaration, entitled “certificate of divorce,” to the wife who was in Pakistan. The husband sought to change his immigration status based on a second marriage to a US citizen and therefore sought to have the talaq of the first Pakistani wife honored, which the court ultimately declined to do.
71. Little reports family lawyer Ahmed A. Patel saying that he reminds his clients who perform talaq divorces that they cannot remarry under US law.
72. See further Section III.
73. There are eight community property states in the U.S. including: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The primary issue of importance with community property states is that they divide the income and property earned or acquired during marriage equally between the two spouses upon dissolution. This is done even if only one spouse was the predominant source of income. Allen 1992, quotes a Minneapolis imam stating that “in Muslim marriages, there is no notion of community property [; w]hatever a woman earns outside the home she may keep, but a man is obligated to support his family”)
74. One encouraging case exhibits respect by one court for a religiously-motivated provision opting out of community property laws. In Mehtar v. Mehtar, a Connecticut court upheld a Muslim couple’s prenuptial agreement opting out of South African community property laws (the marriage contract was executed in South Africa), stating that “the purpose of the agreement was to comply with principles of Muslim law held by both parties” and holding that the requirement of financial disclosure usually required to validate such opt-out clauses in Connecticut “would be unfair to apply . . . to an agreement mutually sought to honor deeply held religious beliefs.”
75. Iran is a primary example. Ayatollah Mohsen Kadivar has been quoted as saying “that a woman should be paid by her husband for working in the house, for cleaning, for breast-feeding. She can even say ‘I don’t want to do this work, I need a servant,’ and her husband has to pay for this. This is in Islam, that he has to do this.” (Walter 1999).
76. The vast majority of family law cases are never published, and therefore are largely unavailable as a subject of research. Thus, most of the cases discussed in the section are appellate court cases, which may or may not be representative of Muslim family litigation in the United States. Moreover, family law cases are almost always a matter of individual state jurisdiction and thus the case precedent of one state does not bind another. The review of the cases in this section do, however, provide a good idea of the established persuasive and precedential authority to which a judge might turn in evaluating any future family law case, and they are thus important for their potential impact on judicial resolution of future disputes.
77. For example,
without citation to case law, Amina Beverly McCloud states that marriages of
Muslim immigrants to the
78. See Section II.
79. This attitude is probably culturally-influenced. Under Islamic law, once the offer and acceptance are made (both usually included in a nikah ceremony), the couple is legally married as a matter of law. Because many Muslim couples sign the contract (“kitab” or “nikah”) at one ceremony but do not begin to live together until some later date, however, many believe themselves to be only “engaged” after the nikah.
80. www.Karamah.org. (Audiotape also on file with author Asifa Quraishi).
81. See, e.g., N.Y. v. Benu in which the mother was charged for contributing to the delinquency of her minor daughters, who were placed in foster care with Muslim family, and the men who “married” the girls were charged with first degree sexual assault of a child). Also, a Los Angeles Times article reported the prosecution of an Iraqi accused of forcing his 13- and 14-year-old daughters to marry men twice their age in a Muslim marriage ceremony. The father was jailed for child abuse and the alleged husbands were charged with rape. “Minors” 1996.
82. Rasmusen and Stake comment that “even if it does not offend public policy, courts are reluctant to enforce such terms because of the costs to the courts, the difficulty of enforcement without invading the sanctity of the marital home, and the possibility that enforcement would increase conflict within the marriage.”
83. Al-Hibri points out that one might just as well interpret mahr provisions as facilitating murder – a conclusion just as ludicrous as the Dajani court’s conclusion regarding divorce
84. Of course, she may be able to keep it if she goes through judicial dissolution in which case the question of harm will be assessed by the arbiter, but this process is generally much longer and entails a burden of proof upon her. The easiest way for a woman to end a marriage extra-judicially is by obtaining the consent of the husband in a khul’, or by reserving a right of delegated talaq (the husband’s unilateral divorce) in her marriage contract. See earlier discussion at end of Section I.B.1.
85. The Court refers to the entire marriage contract, rather than the dower provision only, as a “sadaq.”
86. Incidentally, and unfortunately, the marriage contract at issue in this case is very similar to generic boilerplate contracts issued by many American mosques. (Samples on file with author Quraishi).
87. The court went on to say, “Had the trial judge allowed the expert to testify, the expert in effect would have written a contract for the parties.”
89. Moreover, it might be argued that a rationale for the institution of the deferred mahr provision is the fact that most husbands will be much more able to pay high amounts later on in their careers, also part of the rationale for community property laws.
90. Shaban happened to involve a very low mahr amount and thus it was the husband who sought enforcement of the marriage contract.
91. For a
comparative view of the judicial treatment of mahr in
92. E.g., Aghili v. Saadatnejadi, 786 (likening sadaq to maintenance); Akileh v. Elchahal, 247 (sadaq is a postponed dower that protects the women in the event of a divorce); Dajani v. Dajani, 872 (commenting that one purpose of the dower is to provide security for the wife in the event of death or dissolution, but also can be an outright gift).
93. DittoNS See Aghili v. Saadatnejadi, 786 n.1 (commenting that sadaqwas meant to protect wife from unwanted divorce), Shaban. at n. 6.
94. See, e.g., Dajani v. Dajani, 872 (commenting that one purpose of the dower is to provide security for the wife in the event of death or dissolution, but also can be an outright gift).
95. See, e.g., John McDonald & Greg Hardesty, “Ruling: Dowry no prenuptial agreement: Courts Judges say Islamic marriage law doesn’t apply to California Divorces,” Orange County Register, April 12, 2001 (quoting Belal Dalati commenting on Shaban case saying “I think it is a prenuptial agreement, and it should be enforced here.”).
96. Welchman comments that a majority of jurists consider mahr to be the “effect of the contract.”
97. Prenuptial agreements also generally may not include provisions relating to child custody and child support.
98. In the reported
99. This assertion is supported by the court’s reasoning in, for example, Maklad v. Maklad, where the court declined to give comity to an Egyptian certificate of divorce because the wife was not present at the time the decree was issued, had no prior notice that the certificate was sought, and was given no opportunity to be heard prior to its issuance.
100. Clearly not all Muslims subscribe to this as the only legitimate means of determining custody, but classical Islamic jurists addressed custody in these terms as the safest way of determining that the child will be placed with the best custodian. Some American Muslims argue for a different rule, pointing out that this is a jurisprudential invention, not one directly dictated by the original texts. See, e.g., Muslim Women’s League “Divorce.” It is, however, the classical Islamic custody rules that are most well-known and are what is at issue in these cases (though it is often in modified form through modern legislation in these Muslim countries).
101. See also Adra
v. Clift, where the court upheld a custody decree from
102. Conversely, religion has been counted as a negative influence if it harms the child. See In Re Marriage of Murga.
103. For an extensive discussion on the pre-cursors to modern Muslim discourse in the area of Islamic jurisprudence, see Hallaq.
104. At the
second “Islam in
Muslim mediation project, “Islamic Mediation, Arbitration and Negotiation
Association” (IMANA), is currently being planned for the
107. In particular, when one waivers the right of pursuing litigation in court, the contract must be an “objective manifestation of a party’s intent to be bound by the religious court’s decree and the party knowingly and voluntarily waived his rights to pursue litigation in secular court without any religious group's interference.” (Weisberg 1992: 995).
108. For example, see the website for “American Muslims Intent on Learning and Activism,” www.amila.org, for their mission statement which states “AMILA was formed in October 1992 by Muslims of college age and above to meet the spiritual, educational, political, and social needs of Muslims in the San Francisco Bay Area. We are working towards building an active American Muslim community with a strong commitment to spiritual enrichment, intellectual freedom, and community service.” AMILA’s lectures, projects and activities reflect a progressive attitude toward claiming Islam as a vibrant American identity.
109. For example,
Karamah recently participated, on
110. See www.karamah.org (projects section).
111. www.muslimjd.org. There are also a few local city-based Muslim bar associations with similar focus. For example, the Chicago Muslim Bar Association has existed for over three years, and the D.C.-Area Muslim Bar Association for about two years.
112. www.namlnet.org. NAML conference sessions have included titles like: “Legal Issues of Importance to the American Muslim Community: Criminal and Civil Litigation; Domestic Relations; and Legal Issues for Muslim Community Institutions”; “The Muslim Family: Effective Mediation and Alternative Dispute Resolution Strategies”; “A Challenge of Faith: The Muslim Lawyer in a Non-Islamic System.”
113. On the other hand is the generation of children and grandchildren who have no emotional ties to the homeland of the fathers and find little of value in their customs which are seen as counterproductive and an impediment to the progress in the society in which they are born.” (“Towards Carving the Islamic Space in the West” 1998: 5).
114. As a teacher in a Muslim school, Hashim notes that parents from a specific cultural background would not allow female children to spend the night even for activities such as prayer outside of the home due to their interpretation of proper cultural gender roles. Eventually, she states, when parents were able to see that “the religious teachings in fact, promoted the practice of seeking opportunities to worship God,” they did decide to allow their daughters to pursue such activities.
115. They compared statistics from 1994 to 2001 responses, noting that the proportion of mosques with separation by curtain, barrier or another room had increased to 60-66% of those surveyed in 2001