Muslim Divorces Without Shariah Can Get Tricky

New Jersey lawyer Abed Awad has been involved with more than 100 cases that involved some component of Shariah, or Islamic law, and knows firsthand how complicated things can get.

In one of those cases, a woman claimed she was married to a man according to Islamic law in her native West Africa. The man asserted there was no valid marriage, leaving a judge to decide whether the two were ever legally married in the first place.

If the judge rules they were married, there will be a divorce and she will receive alimony and a share of marital assets. If the judge rules that there is no marriage, then the woman will be left with nothing from her relationship.

To make a ruling, the judge will need to consider what Shariah, as understood in one corner of western Africa, says about what constitutes a legal marriage. He will likely have to consult Islamic law experts and apply what he learns to his decision.

But what if American judges were prohibited from considering Shariah and other foreign laws, as many state and national politicians want to see happen?

“How can I bring in testimony of Shariah generally, or Shariah as the law of a foreign country, when it comes to marriage? The judge won’t be able to adjudicate the case,” Awad explained.

“He can’t say yes or no because now it becomes, is he going to apply New York law or New Jersey law on the validity of a marriage that did not take place here but that took place in a foreign country?”

Counselors and activists estimate that roughly one in three Muslim marriages in the U.S. end in divorce. Many Muslim Americans who divorce want their marriages dissolved in accordance with Islamic law. That means having dowries and other provisions of marriage contracts enforced, as well as obtaining an Islamic divorce certificate, which imams in the U.S. issue only after a civil divorce has been finalized.

“We recognize the jurisdiction of the U.S. courts,” said Suhaib Webb, imam at the Islamic Society of Boston Cultural Center. “We won’t issue a divorce unless they bring a certificate from downtown.”