No Altars: A Survey of Islamic Family Law in the United States
by
Asifa Quraishi and Najeeba Syeed-Miller¹

• Introduction
• Islamic Family Law in American Muslim Hands
• The Muslim Family in the US – Law in Practice
• Islamic Family Law in U.S. Courts
• Future Trends and Predictions
• Conclusions

This paper surveys the application and perception of Islamic family law in the United States, and the impact of living in this intersection of legal authority on America’s Muslim families and communities. In the first section, “Islamic Family Law in Muslim Hands,” we address the intellectual and social discourse of US Muslims on Islamic family law topics, paying special attention to key issues of concern and debate. The section provides a brief overview of the sources of information available, ranging from academic publications to popular magazines and internet websites, as well as spiritual leaders and activist organizations, covering topics such as the requirements for a valid Muslim marriage, drafting a marriage contract, and methods of divorce under Islamic law. In the following section, “The Muslim Family in the USA – Law in Practice,” we review the practices of Muslims in conducting their marital lives in the USA. Topics covered here include: types of Muslim wedding ceremonies (religious, secular, or both), the nature of Muslim marriage contracts in the United States, and mechanisms used to dissolve these marriages. This leads to a review in section III of court cases involving Muslim marriage and divorce litigation in the United States, drawing general conclusions where possible. Judicial determinations of the validity of Muslim marriages and divorces are covered here, as well as whether US courts will enforce the terms of Muslim marriage contracts. The final section puts this study in broader context by addressing the theoretical roots of the current US Muslim experience. Special attention is given to uniquely US-based efforts to interpret and apply Islamic norms and values in everyday lives. Looking at both academic and grass roots work, this review also points the reader in the direction of future trends and goals, including potential community-based efforts to address Islamic family law issues not satisfactorily resolved in formal American courtrooms.

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.

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I. Islamic Family Law in American Muslim Hands

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 United States, about half are immigrants from Asia, the Middle East, Africa, Europe – literally all over the world ⁴. The other half is indigenous -- meaning not only African Americans and European Americans, but also Native Americans and Latinos, as well as second and third generation children of immigrant parents. Moreover, of all the above ethnicities, any number can be converts to Islam or raised in the faith from birth. For the purposes of this paper, the U.S. Muslim community to which we refer is reflected in Yvonne Haddad’s characterization of this community as one of more recent immigrants from over sixty countries, a large number of converts, both African American and white and descendants of those who have immigrated to the United States between the 1870’s World War II. (Haddad 2000: 20)

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 the US. (Thus, one finds Muslims on all sides of the debates around topics such as polygyny, gender roles, and adoption, to name just a few in the field of family law⁶. In finding a legal opinion to apply in their own lives, individuals can choose between the guidance of local Muslim scholars, community leaders, activist organizations, or their own personal interpretive efforts on a given question. Obviously, this plurality of sources creates a wide variety of applications of marriage and divorce procedures in the Muslim community – applications surveyed in more detail below⁷.

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 United States is significant, because it is to these imams that many go for Islamic marriage and divorce proceedings – proceedings that end up having varying validity under both U.S. and Islamic law, depending on the imam. For example, many imams will not officiate at an Islamic marriage ceremony unless the couple has a valid state marriage licence first, or the imams will themselves be qualified to officiate marriages under the laws of the state, thus ensuring the secular validity of the Muslim marriage, but not all imams concern themselves with secular law and procedure. New Jersey attorney Abed Awad (interview 2000) reports that some mosques in New York and New Jersey officiate Muslim marriages without any civil marriage licence, and in some cases even issue divorce and alimony orders where, arguably, Islamic law would not even justify it. Maryland attorney Naima Said reports the same phenomenon in the Washington D.C. area (Said 1998). Similarly, Cherrefe Kadri, (interview, 2000) a lawyer based in Toledo, Ohio, comments on the sharp difference in family dispute resolutions undertaken under the authority of an untrained imam versus those from, for example, an imam not only Islamically-knowledgeable but also with experience as a social worker in the west. In the former, disregard for U.S. marriage and divorce certification often prevails, not to mention frequent gender bias cloaked under the name of Islam.

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 US as elsewhere, Muslims often prefer to keep family conflicts within the family, and will turn first to relatives as arbitrators and mediators. One Muslim marriage counselor himself reports that he advises Muslim couples to first go to parents, uncles or aunts before approaching him. (Chang 1990: Sec. E) (It is significant to note that this is often more difficult for immigrants, whose extended family is most likely overseas.) Alternatively, where there are Muslim attorneys or social workers, these professionals often act as informal mediators, drawing client confidence from their expertise in the western legal system combined with an understanding of Muslim concerns and, sometimes, their bilingual language skills. For example, Los Angeles attorney Sermid Al-Sarraf (interview, 2000) reports that, in family dispute cases, he often first describes to clients what will likely happen in full litigation in an American family court (including the accompanying high cost), and then assists the parties to try to reach an amicable settlement that avoids this costly approach. Similarly, Toledo attorney Cherrefe Kadri (interview, 2000) notes that she uses her mediation and Arabic language skills to assist trust-building with clients attempting to resolve disputes out of court. Al-Sarraf (interview, 2000) also notes that he has an arrangement with a local Muslim scholar for reference on Islamic legal issues if any arise. He states that he has seen Islamic law referred to occasionally by the parties during these negotiations (for example, one party asserting things such as “under Islam, you would get nothing”), albeit sometimes inaccurately. Usually, however, his experience is that the reality of the US legal system is what drives the ultimate resolution of these cases.

B. Intellectual Resources

Muslims in the US have a plethora of sources from which to learn about Islamic law, and Islamic family law in particular. A remarkable number of English language books, articles, magazines, scholars, conferences, and now websites on this topic are available in the U.S. They range in accessibility from the most readily available mainstream bookstores and popular Muslim magazines to more obscure academic pieces in scholarly journals and research encyclopedias. The information available in these sources covers not only expositions and translations of classical doctrine, but also reformist and practical guides for the lay Muslim.

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 Egypt, Pakistan, Turkey and Iran. This is a logical inclusion, as most people interested in Islamic law seek also to understand its influence and manifestation in modern Muslim states. It is interesting to note that for Muslims in the United States however, it is the classical jurisprudence that is of the most relevance, as they seek to abide by Islamic law in the absence of state enforcement.

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 in North America,” takes a similar stance (Webb 2000). It includes essays by well-known American Muslim legal scholars such as Azizah al-Hibri and Maysam al-Faruqi. Al-Hibri’s piece, “An Introduction to Muslim Women’s Rights,” includes an overview of marriage relations in Islam (e.g. contractual terms, guardianship, maintenance, divorce procedures) emphasizing the ways that Islamic principles promote women’s liberty in a way contrary to how these principles were applied and interpreted in patriarchal Muslim societies ultimately leading to biases in the law itself. Maysam al-Faruqi’s chapter, “Women’s Self-Identity in the Qur’an and Islamic Law,” focuses on particular Quranic verses often cited on the subject of women’s rights (e.g. male superiority over female, obedience of wives, beating), providing a critical analysis of juristic interpretation of each. Articles and collections like these testify to the emergence of a new contribution to the field of women and Islamic family law: the contribution of a specific US Muslim scholarly literature written by women. As Gisela Webb, editor of “Windows of Faith,” puts it in her introduction, such works are “evidence of the lively, creative, critical, and self-critical discussions currently taking place in the academy and in Muslim communities and professional organizations in the United States, raising issues of religious pluralism, democracy, gender, and modernity as they relate to Islam and Muslim identity” (Webb 2000: xii).

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 United States, one aspect of Islamic family law stands out as something of particular interest: the concept of the Islamic marriage contract. This subject has attracted recent and continuing attention, stemming largely from the fact that the jurisprudential importance of marriage as a contract makes drafting a marriage contract an important tool to particularize individual marital relationships, and has in fact been used as such throughout Islamic history. As Sharifa Alkhateeb puts it in her 1996 article in a Muslim women’s magazine, “The Islamic marriage contract is meant to solidify the [purposes of an Islamic marriage] and specify stipulations important to the woman and man.²¹” Interest in the Islamic marriage contract is growing, prompting a full weekend conference at Harvard Law School²², a panel at the 2001 national conference of the Islamic Society of North America²³, numerous Muslim magazine articles, and website discussions, all of which have contributed to educating the public (both Muslim and non-Muslim) about this now-underutilized shari’a tool (Lieblich 2001: 1)²⁴. These efforts highlight the fact that Muslim marriage contracts can contain a myriad of additional clauses, from a promise of monogamy and a wife’s delegated right of unilateral divorce, to equal participation in household chores and the right to complete one’s education²⁵. Some note that Islamic schools of thought differ over the enforceability of these clauses, though these details are not always fully explained in the Islamic law summaries available for the layperson’s practical use²⁶. Finally, addressing the question of the Muslim marriage contract in the United States, the Karamah organization lists among its projects “drafting a model Islamic marriage contract which meets the objections of those American courts that have found Islamic marriage contracts unenforceable²⁷” – a project whose importance will become apparent in section III of this paper summarizing the treatment of Muslim marriage contracts by US courts.

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 U.S. go beyond the classical Islamic law on the subject, offering non-mainstream interpretations. For example, the Muslim Women’s League position paper “An Islamic Perspective on Divorce,” after explaining the basic elements and types of divorce in classical jurisprudence, goes on to comment “the controversy with divorce lies in the idea that men seem to have absolute power in divorce. The way the scholars in the past have interpreted this is that if the man initiates the divorce, then the reconciliation step for appointing an arbiter from both sides is omitted. This diverges from the Quranic injunction.³⁰” With this argument, the Muslim Women’s League refers to the Quranic verse stating “if you fear a breach between them, then appoint two arbiters, one form his family and the other from hers; if they wish peace, God will cause their reconciliation.”

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 United States, enabling them to adjust for these sorts of discrepancies in classical doctrine. Other works focusing on the concept of guardianship (wilaya) in Islamic family law include: “The Concept of Wilaya in Hanafi Law: Authority versus Consent in al-Fatawa al-‘Alamgiri” by Mona Siddiqui, “Is an Adult Muslim Woman Sui Juris? Some Reflections on the Concept of ‘Consent in Marriage’ without a Wali (with Particular Reference to the Saima Waheed Case” by Shaheen Sardar Ali, and “Opening Pandora’s Box: The Impact of the Saima Waheed case on the Legal Status of Women in Pakistan,” by Martin Lau (Siddiqui 2000: 171; Ali 1996: 156; Lau 1996: 518). The last two articles refer to the widely-reported case of Saima Waheed a university student who married her tutor in Pakistan against her parents’ consent, when her parents sued for dissolution of the marriage, it touched off a flurry of debate over the right of a woman to contract her marriage without her guardian, a position which the Hanafi school of Islamic law stands alone in allowing. Taken together, all these articles investigate the parameters of that right, including Hanafi limitations on the freedom and ways to overcome the prohibition in other schools. Azizah al-Hibri takes up the question of the right of a Muslim woman to contract her own marriage, as well as questions of a wife’s duty to obey her husband and to initiate divorce, in “Islam, Law and Custom: Redefining Muslim Women’s Rights” (Al-Hibiri 1997: 1).

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 Egypt,” reviews the debate over the project to include a detailed model marriage contract in Egyptian Personal Status Codes, and includes a discussion of the differences of opinion in classical Islamic law regarding the validity of various types of marriage contract stipulations (Shaham 1999: 462). Similarly, Dawoud Sudqi El-Alami’s The Marriage Contract in Islamic Law in the Shari’ah and Personal Status Laws of Egypt and Morocco,” includes several chapters on aspects of the marriage contract (from proposal and acceptance, to consequences of an invalid contractual term) in addition to special attention to its manifestation in Egypt and Morocco El-Alami 1992). Azizah al-Hibri compares Muslim marriage contracts to prenuptial agreements in an interfaith symposium article titled “Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, including Education, Abortion, In Vitro Fertilization, Prenuptial Agreements, Contraception, and Marital Fraud” (Al-Hibri 1993). Mohammed Tabiu addresses the implications of defects in Muslim marriage contracts in “Nature and Effects of Unlawful Marriages in Maliki Law” (Tabiu 1990-1991).

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 Pakistan,” and Abdul Hakim Quick’s “Al-Mu’allaqa: The Muslim Woman Between Divorce and Real Marriage” (El Arousi 1977: 13; Carroll 1996: 91; Quick 1998: 27). El Arousi’s article addresses sharia responses to the situation of a husband’s refusal to consent to a divorce, and includes a summary of classically recognized grounds under which marriage can be judicially dissolved (“faskh”). Quick’s article addresses this subject in the context of Muslims in North America, and reviews the efforts and actions taken by Muslim organizations in the west to achieve a dissolution of a marriage by an Islamic authority. On the opposite side of divorce law, Carroll’s article discusses the various means a woman can initiate divorce (such as consensual divorce with remunuration (khul’ or mubara’a), or judicial dissolution at the wife’s initiation (faskh)), weaving in classical Islamic jurisprudence and modern Pakistani case law in her analysis.

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 US society varies widely, due somewhat to the varying levels of individual knowledge, but also because of ideological differences and simple practicalities. This variety in the practical application of Islamic family law is the subject of the next section.

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II. The Muslim Family in the US – Law in Practice

A. Solemnizing the union

The intersection of U.S. and Islamic law becomes important right at the formation of the family unit – the creation of the marriage itself. Each state of the US requires a civil marriage license for every marriage created within its borders. Details on the specific requirements for these licenses vary from state to state, but they all generally require an official signature of the person performing the wedding, qualified by the state to do so, and those of witnesses to the ceremony. Islamic wedding requirements (being very simple – requiring only an offer and acceptance and witnesses to the event) do not conflict with this, if the person officiating the wedding is registered with the state as having this authority. In the United States, many Muslim leaders and lay individuals have this state authority, thus making the Muslim ceremony over which they preside simultaneously legal under the laws of the state, provided all necessary forms are filed. However, because not all Muslim marriage officiants carry such qualifications, Muslim weddings in the US take a variety of forms. Many conduct one Muslim ceremony with a state-qualified imam, but many others have two events – a Muslim ceremony as well as a civil ceremony through state channels³². Still others have only a Muslim ceremony and never bother with state registration requirements³³, a risky practice under US law because, barring a finding of common law or putative marriage, the parties and their children have no state-enforceable legal rights upon each other, thus impacting inheritance, health insurance, taxes, and even immigration issues.

B. Terms of the Contract

As for what is included in these Muslim marriage contracts, most Muslims in the US seem to consider only one thing really important that would not otherwise be included in a standard civil marriage license: a provision regarding the wife’s bridal gift or dower (mahr/sadaq). The majority of classical Muslim jurists hold dower to be an automatic effect of the marriage contract, to the effect that even if no dower is stipulated, or it is stated that there will be no dower, the wife is entitled to claim a ‘proper dower’, assessed by those of her peers and her individual standing (Esposito 1982: 25; Welchman 2000: 135-136; Ali 1996: 159). Customarily the dower is divided into part payable immediately at the marriage (the ‘prompt dower,’ sometimes only a token amount or symbol) and part deferred to a later date, either specified or more usually payable on the termination of the marriage by death or divorce (Rapoport 2000; Welchman 2000: 144; Moors 1995: 106-113). Written documentation of Muslim marriages thus routinely includes mention of the dower arrangements, and in the US, many mosques and imams include a fill-in-the-blank provision in standard boilerplate marriage contracts (Kadri interview 2000). Case law of Muslim marriage litigation in the US reveals that Muslims do generally include mahr/sadaq provisions in their contracts, though their nature varies greatly depending on the financial status and personal preferences of the parties³⁴. These range from more or less standard financial sums to those that indicate particular interests or aspirations of the Muslim couple. Some examples of actual mahr/sadaq clauses in the U.S. and Canada are: $35,000, a Quran and set of hadith, a new car and $20,000 (Canadian), a promise to teach the wife certain sections of the Quran, $1 prompt and $100,000 deferred, Arabic lessons, a computer and a home gym, a trip around the world including stops in Mecca, Medina and Jerusalem, a leather coat and a pager, a wedding ring as immediate mahr and one year’s rent for deferred mahr, and eight volumes of hadith by the end of the first year of marriage and a prayer carpet by the end of five years of marriage. (Al-Khateeb 1996)³⁵.

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, Los Angeles attorney Sermid Al-Sarraf comments that he has seen, in informal divorce negotiations, a husband’s recognition of the mahr amount, prompting the parties to include in their settlement an offset of this amount with other property (Interview 2000). Other Muslims tend not to consider the dower important at all, and include a clause about it (often only a token dower) in their contracts only because the Muslim officiating the ceremony tells them it is required (Kadri Interview 2000)³⁶.

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 US for a different reason: the action is already prohibited by US law. Nevertheless, these couples feel it important to include such terms for religious reasons (i.e. thus preventing even a non-civil but nevertheless Muslim marriage to an additional wife), as a protection in the event they relocate to a jurisdiction that does allow such activity, and also as a mutual expression of the nature of their partnership. Finally, some marriage contracts use stipulations to provide for remedies in the event of a breach of other contractual terms spouse (e.g. a monetary value or a wife’s right to immediate divorce upon occurrence, etc.)⁴⁶

C. Within the Marriage

So far we have predominantly discussed areas where Islamic and US law are different, but not directly conflicting. There are, however, some practices where some might regard the two laws as in direct opposition, and Muslims fall on both sides of the question of which law takes precedence. Polygyny is one of these areas. Because classical interpretations of Islamic law allow men to marry up to four wives, some Muslims believe that the US prohibition of polygamy directly violates their freedom of religion and, believing that Islam supercedes secular law, proceed to become part of a polygynous marriage. Thus, we see for example, in N.Y. v. Benu, a husband giving custody of his children to his wife after he married a second woman, and other reports of Muslim polygynous marriages (Little 1993; Taylor Interview 2000). Aminah Beverly McCloud relates the dilemma faced by many Muslim women whose husbands take a second wife – they feel religiously bound not to object to a practice God has permitted⁴⁷. She notes that even some Muslim leaders engage in this practice, leading to “marriages of years of devotion fall[ing] into chaos.” Generally, the first wife in these marriages is recognized as legal under US law, but any subsequent wives and their children are not. These later wives are “married” to the husband in Muslim ceremonies either in the U.S. by imams willing to do so, or in ceremonies overseas where polygyny is legal. Because of the religious dilemma, however, McCloud states that many of these women file charges not for bigamy but for some sort of fraud. She also states that “all of the potential legal consequences of the practice of polygamy in the American context have not yet appeared, but … are bound to find their way into the courts as more and more women seek alimony and child support.” (Id. at 142.)

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 United States, urging that the Quranic norm is monogamy and pointing to classical juristic arguments constraining the institution of polygyny (Al-Hibri 1993, 66-67). For example, Azizah al-Hibri cites classical Islamic scholars stating that marriage to a second wife causes the first wife harm, it is forbidden, and also notes Islamic schools of thought allowing the couple to include a clause in the marriage contract barring the husband from taking more wives. Similarly, Amina Wadud in her book “Quran and Woman,” in addition to critiquing several traditional justifications for polygyny, undertakes her own textual interpretation of the relevant Quranic verses and sets forth an alternative reading of the permission for the practice, emphasizing its specific limitation to the just treatment of orphans (Wadud 1999). The Muslim Women’s League makes the additional argument that because the subsequent wives are not legally recognized under the laws of the state, then by definition they are not treated equally, a requirement of Islamic law in polygynous marriages⁴⁸. That is, subsequent wives in the United States not only do not have any rights to general spousal benefits (such as insurance benefits and inheritance) but they also necessarily lack any avenue of enforcing their spousal rights if a husband chooses to abuse or divorce them, since the marriage will have no validity in the US courts, not to mention a prosecution for bigamy if the authorities are so inclined⁴⁹. Another argument against American Muslim men marrying more than one wife relies on the simple Islamic jurisprudential principle that one must obey the laws of the land where one chooses to live, as long as they do not prevent one from performing their religious obligations. Since polygyny is at most permitted in Islamic law, rather than being an obligation, it is held that U.S. laws requiring monogamy should be respected.

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 book” whereas US law puts no religious restrictions on spousal partners (Esposito 1982: 20; Doi 1984: 36). Given the melting pot nature of life in the US, many Muslims, both men and women, do indeed marry non-Muslims (Haddad and Lummis 1987: 148)⁵⁰. While those who criticise Muslim women marrying non-Muslim men find a basis in standard fiqh positions, some object also to Muslim men marrying non-Muslims, on the basis that this constitutes an unfair double standard or results in a reduced number of Muslim men whom Muslim women may marry (Haddad and Lummis 1987: 146; Marquand 1996)⁵¹. Others argue that the allowance is limited to those living under Muslim rule and therefore does not apply in places like the United States⁵². Azizah al-Hibri makes a shari’a-based argument against both Muslim men and women marrying outside the faith, arguing that the original reason (‘illa) for the Islamic prohibition of women marrying non-Muslim men has now changed in our context. That is, the reason classical Muslim jurists denied women the option of marrying non-Muslim men was to protect her from the husband’s potential denial of her free exercise of her religion (acknowledging the patriarchal nature of marriage, and the fact that Christianity and Judaism prohibited interfaith marriages at the time). Al-Hibri concludes that this ‘illa still exists, but argues further that additional realities of the American Muslim context (i.e. the likelihood of a Muslim man losing custody of his children and/or being unable to fulfil the Islamic obligation to raise them as Muslims if divorce from his non-Muslim wife occurs) mean that Muslim men also deserve the protective attention thus far granted to Muslim women, and thus, the prohibition of interfaith marriage should be extended to them (Al-Hibri 2000: 68-69). Nevertheless, marriages in which the husband is Muslim and the wife Jewish or Christian are generally supported by most US Muslims. For women marrying non-Muslim men, on the other hand, there is usually a stigma, or worse. Many Muslims follow Islamic fiqh’s rejection of women marrying outside the faith, and most respected imams will not officiate at such ceremonies (Haddad and Lummis 1987: 145)⁵³. Muslim women’s reactions range from disregard of the rule and consequent critical attitudes, to full support and justification of the fiqh position as beneficial to society and family. In between are many who reluctantly accept the rule, and perhaps seek alternative interpretations⁵⁴.

Some inter-religious marriages involving Muslims are intercultural marriages between indigenous US citizens and immigrants. When the immigrant is the husband, mainstream US culture has developed the fear that the husband will ultimately abscond with his children (and perhaps the wife) to his country of origin, depriving the wife of all spousal rights recognized in the U.S. The 1987 book and corresponding film titled Not Without My Daughter⁵⁵arguably largely created and certainly entrenched this fear in the wider US public (Baker) resulting in particular attention in the State Department information on “International Parental Child Abduction,”⁵⁶ via a piece featured on its travel website titled “Islamic Family Law,” posted to “make clear the basic rights and restrictions resulting from marriages sanctioned by Islamic law between Muslim and non-Muslim partners,” noting that “for Americans, the most troubling of these is the inability of wives to leave an Islamic country without permission of their husbands, the wives’ inability to take children from these countries, and the fact that fathers have ultimate custody of the children.⁵⁷” While it appears to be a sincere effort to summarize Islamic family law for those living in the United States, the State Department’s narrow focus on only Muslim-non-Muslim marriages skews the tone of its report and the reality of these issues. Clearly, the problems addressed (inability to leave without permission of husbands, barriers to custody) are faced by all women living under Islamic law, whether Muslim or non-Muslim. The State Department’s limited view perpetuates the “Not Without My Daughter” stereotype that Muslim men are a particular threat to non-Muslim American women. Moreover, stereotypes in the dominant US culture which portray Arabs and Muslims as violent fundamentalists oppressive to women further fuel distrust of intercultural Muslim marriages in the non-Muslim population⁵⁸. As will be seen in the next section, this distrust sometimes extends to Muslims and Islamic law generally, and has a direct impact when Muslim marriages end up in divorce courts⁵⁹.

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 US, such as the late Fazlur Rahman among others, point out that there is nothing in the Quran or hadith “asking Muslims to have arranged marriages” (Iqbal 1987). This is true even in the face of much of classical Muslim jurisprudence requiring guardian involvement in marriage negotiations for minors and even for adult women, reasoning (among other things) that this is necessary for their protection. Some Muslim women activists emphasize the non-Quranic basis for these guardian rules in arguments for reform beyond patriarchal interpretations in Islamic law (Al-Hibri 2000: 60; Fadel 1998)⁶⁰. Similarly, wedding particulars from clothing and food to where the bride and groom sit, all vary from culture to culture, none of which command Islamic official sanction, but are often confused as such (Chang 1990)⁶¹. It is not just non-Muslims who confuse culture with religion. Some Muslims assume cultural practices that have been within their families for generations are actually required by Islamic law. Thus, many debates within US Muslim families, whether they are inter-generational or inter-cultural, often superficially seem to be about religion, but are really based on a mixture of cultural and religious/legal norms. These debates include, for example, arguments over the level of parental involvement in choosing one’s spouse (and participation in wedding formalities themselves), the amount of pre-marital contact future spouses may have, the nature and amount of dower, allocation of household responsibilities (financial and physical), and spousal activities and work outside the home, to name just a few. Many of these issues do appear in juristic discussions (both classical and modern) but usually in the context of what role custom plays in lawmaking, as these issues are not specifically addressed in the Quran and hadith⁶². As the community evolves and migrates, discussions of these topics become complicated as the line between law and culture blur for the average Muslim. Male superiority within the hierarchy of the family is one culturally validated but also often religiously justified ideology (Marquand 1996)⁶³. Many US Muslims believe in a patriarchal final authority over family matters, and look to Quranic verses in support of this belief. Others resist this notion as an antiquated cultural preference, and look instead to Quranic and Islamic concepts of partnership and equality of the sexes (Wadud 1999; al-Hibri 2000; al-Faruqi 2000; Wadud 2000, Barazangi 2000; Muslim Women’s League, “Equality”). Both philosophies, and variations in between, can usually support harmonious and successful families. However, the idea of male superiority sometimes is used to justify physical and mental abuse of other family members, especially women and children, as a Muslim male’s right, presented as somehow endorsed by the shari`a (Kadri Interview 2000; Winton 1993)⁶⁴. In the words of Kamran Memon, an attorney and one of the first in the US Muslim community to write publicly on the subject, “tragically, some Muslim men actually use Islam to ‘justify’ their abusive behavior . . . considering themselves to be Islamically knowledgeable and disregarding the spirit of Islam, they wrongly use the Quranic verse that says men are the protectors and maintainers of women to demand total obedience and order their wives around . . . . These men misinterpret a Quranic verse that talks about how to treat a disobedient wife and use it as a license for abuse” (Memon 1993)⁶⁵. Even worse, as Memon and other Muslims note, is when battered Muslim women accept these religious claims and suffer the abuse, believing it to be some sort of religious duty on their part, and are unfortunately supported in this belief by Muslim community members, even leaders (Kadri Interview 2000)⁶⁶.

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 US law. Sometimes Islamic family law does arise in these civil divorce proceedings, usually in the form of a claim for payment of the mahr/sadaq amount. Family law attorney Abed Awad reports, for example, that he sees a trend of husbands resisting dower payments, sometimes using the shari’a-based argument that wife-initiated divorces entail the wife’s forfeiture of the mahr (Interview 2000). Another Muslim attorney, Sermid Al-Sarraf, describes one case where the spouses turned to Islamic law to assist in determining the custody of their children, each consulting different Muslim legal scholars on the question. In the end, however, other issues, such as competency and capability of support, played a stronger role in the custody decision (Interview 2000). In general, US Muslims facing divorce disputes seem to seek advice and assistance on both their Islamic and secular legal rights; and as the number of Muslim legal professionals and legal organizations in the US grows, more and more experts become available who can assist with both simultaneously⁶⁹.

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 US law, and the parties may be faced with complications in any attempts to subsequently marry in the United States (Little 1993)⁷¹. They would also present obstacles to either spouse attempting to enforce any terms of an Islamic divorce settlement, such as the distribution of property or custody of children, in the event that the other spouse breaches the deal. Some case law, discussed in the next section of this report, reflects efforts by the courts to deal with these extra-judicial divorces⁷².

E. Deliberately Opting out of US Default Rules

Some Muslims are proactively interested in ways to legitimately opt out of United States legal norms that potentially conflict with their Islamic preferences. For example, in community property states some Muslims are concerned that a community property distribution of half a wife’s property to her husband infringes on the Muslim woman’s right to full and exclusive ownership of her property⁷³. Others believe that community property distributions should not be given to Muslim women in addition to their mahr, which they hold to already fulfil the need sought to be resolved by community property statutes.

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 upon divorce⁷⁵, the doctrine remains unknown among most lay Muslims, in the United States and worldwide. Of course, enforceability of this Islamic doctrine in the United States is dependant upon voluntary compliance by ex-spouses, as it is unlikely to be applied by United States courts without some compelling reason to do so.

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III. Islamic Family Law in U.S. Courts

We now turn to the question of how Muslim marriages have fared in the US courts⁷⁶. There is fairly little awareness in the US Muslim community about this subject, and consequently many mistaken presumptions are made. Much confusion surrounds the question of the validity of the marriage contract itself, as many presume that the law of prenuptial agreements will safeguard the enforcement of Muslim marriage contract clauses⁷⁷. As will be seen in this section, Muslims seeking to enforce their marriage contract as a prenuptial agreement have actually had varying success in the courtroom. One essential question that will be addressed is whether David Forte’s prediction that there will be difficulty in “pleading Islamic law in American courts” has been fulfilled. (Forte 1983: 31) In this section, we will review the treatment of Muslim marriage in published US case law, and review the thoughts of Muslim attorneys working in this field.

A. Validity of Muslim Marriages

The question begins at the beginning – whether a Muslim marriage will be recognized as valid under domestic US law in the first place. As mentioned earlier⁷⁸, this is only a real concern where the couple did not also follow secular state rules in registering their marriage. But even where there is only a Muslim marriage ceremony, the courts have not rejected such marriages outright, but rather undertake their own inquiry into whether the marriage was valid under the laws of the place in which it was conducted. For example, Farah v. Farah was a 1993 Virginia case involving the proxy marriage in England of two Pakistanis (with a subsequent wedding reception in Pakistan) who subsequently moved to the United States. Because the proxy marriage did not follow English requirements for a valid marriage, the Virginia court held that it could not recognize it as a valid marriage, stating that the fact that the proxy wedding complied with general Islamic family law rules (which would be relevant in Pakistan) was irrelevant. Conversely, in more recent case, Shike v. Shike, a couple married in a Muslim “nikah” (marriage) ceremony in Pakistan and subsequently documented it in Texas by having a Texas imam sign a standard Texas marriage license. Though the couple initially believed their nikah to be only an engagement⁷⁹, the court’s inquiry revealed that the parties’ public representations were that of a married couple and therefore the court found the marriage, valid under Texas law, even though performed outside of Texas. Finally, in Aghili v. Saadatnejadi, the Tennessee Court of Appeals held that an Islamic marriage ceremony, followed by later compliance with state marriage license law, qualified as a legal marriage, reversing the trial court’s summary judgement that the Muslim marriage “blessing” did not qualify as a solemnization ceremony.

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 under California law. In the end, with no evidence of public solemnization, no license, and no public representations of the couple as a married unit, the court answered the question in the negative. In reading Vryonis, it is interesting to note two elements considered by the court as persuasive against the existence of a real marriage: the facts that (1) the wife kept her own name and (2) maintained a separate bank account. Commenting on this case, Azizah al-Hibri points out that, among Muslims, these facts would carry no persuasive weight against the existence of a marriage because the changing of the wife’s family name on marriage is not required by fiqh, and indeed has not been a characteristic of most Muslim communities. And second, Muslim women often keep separate bank accounts to protect their right under Islamic law to exclusive control over their personal property (Muslim Women’s League and Karamah 1995)⁸⁰.

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 USA. For example, where a Muslim parent forces a minor to marry against his or her will, the courts have brought criminal charges against the parent (“Minors’ 1996)⁸¹. In such cases, parental cultural defenses are unsuccessful and held simply to violate public policy and the constitutional rights of the minor.

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 United States have differed in their treatment of Muslim dower provisions. On the one hand, some courts have found them unenforceable. For example, in Dajani v. Dajani, the California Court of Appeals interpreted the mahr of a Muslim marriage contracted in Jordan to be a prenuptial provision “facilitating divorce” because the 5,000 Jordanian dinars became payable to the wife only upon dissolution of the marriage. Considering this to be potential “profiteering by divorce” by the wife and against public policy, the court held the provision unenforceable and Mrs. Dajani lost her mahr. Azizah al-Hibri takes issue with the conclusions drawn by the Dajani court, holding this to be a basic misunderstanding of Islamic law and the institution of deferred dower, particularly since deferred dower is also due upon the death of the husband (Al-Hibri 1995: 16-17)⁸³. It might also be pointed out that under Islamic law, if a woman initiates divorce extrajudicially through khul’, then she likely will forfeit her mahr⁸⁴. Thus, a mahr clause in this situation acts as a deterrent to (not a facilitator of) no-fault divorce by the wife – a result quite opposite from the “profiteering” assumptions made by the California Court of Appeals. The whole life of the Dajani case, from trial to appeal, illustrates mistakes that can be made when US judges attempt to adjudicate matters of Islamic law. At trial, for example, Muslim experts testified to the Dajani judge regarding the forfeiture of the dower upon divorce initiated by the wife, and based on this testimony, the trial court concluded that the wife must forfeit her mahr because she initiated the divorce, an oversimplified understanding of Islamic law on the matter. (Unfortunately, the court did not undertake an analysis of faskh dissolution in Islamic law where an inquiry into harm is made, distinguishing it from extra-judicial khul’.) But when it got to the Court of Appeals, the inquiry into Islamic law was even more superficial: it went straight to rejecting all mahr provisions generally as “facilitating divorce.”

On the other hand, some state courts have been more understanding of the concept of mahr/sadaq in a Muslim marriage. In New York, for example, courts have relied on their experience with the very similar Jewish institution of ketuba. For example, in Habibi-Fahnrich v. Fahnrich 1995, the New York Supreme Court, though a bit confused in its usage of terms⁸⁵, specifically stated):

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 New York court had difficulty giving effect to the sadaq provision in the Muslim marriage contract simply because the terms were too vague under basic contract principles. The clause “[t]he sadaq being a ring advanced and half of husband’s possessions postponed” left too many financial calculation questions unanswered (e.g. half of which possessions calculated at what point in the marriage? Postponed until when?) Thus, it was a violation of the Statute of Frauds, not public policy, which doomed this mahr provision. In fact, these same criticisms would likely be raised under an Islamic investigation of the terms of the contract (Rapoport 2000: 5-21). In both jurisdictions, Muslims would be wise to pay more attention to writing clear terms in their marriage contracts⁸⁶.

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 California Court of Appeals rejected a husband’s attempt to enforce the mahr (the equivalent of $30) listed in his Egyptian Muslim marriage contract, instead awarding the wife $1.5 million in community property. The marriage contract included a clause stating that the “marriage [was] concluded in accordance with his Almighty God’s Holy Book and the Rules of his Prophet,” and the husband asserted that this meant that the dissolution should be governed by “Islamic law.” The court flatly rejected this attempt to incorporate Islamic law by reference, stating that “Islamic law” was such a broad, abstract concept that brought too much uncertainty into the terms of the contract. Pointing out the many manifestations (schools of thought, state legislation) of Islamic law, the court concluded: “An agreement whose only substantive term . . . is that the marriage has been made in accordance with “Islamic law” is hopelessly uncertain as to its terms and conditions.⁸⁷” Thus, the Statute of Frauds, requiring clear contract terms, prevented its enforcement. Interestingly, the court did not even get to the question of whether the mahr clause was against public policy (as they had in Dajani, and as the trial court had done in this case). Said the court: “It is enough to remark that the need for parol evidence to supply the material terms of the alleged agreement renders it impossible to discuss any public policy issues. After all, how can one say that an agreement offends public policy when it is not possible even to state its terms?”

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 in the United States. Since the court appeared particularly frustrated with the lack of any other substantive terms in the contract besides this one and the mahr provision, it may be that by individualizing and embellishing their marriage contracts with many substantive stipulations, Muslim couples may be able to avoid a result like the one in Shaban, but there is no guarantee. In addition, California is not the only state in the union, and (as will be seen in more detail later), other states have found their way to enforcing Muslim marriage contracts despite such references.

The other interesting thing about the California court’s treatment of Shaban is its absolute lack of interest in investigating the permutations of Islamic law if it were to govern the agreement. They are justifiably concerned about the complexity and pluralism of “Islamic law” and their reluctance to engage it is understandable⁸⁸. Nevertheless, one is left with the impression that the Court took for granted the husband’s version of Islamic law – i.e. that the wife would be limited to $30 mahr under Islamic law, and that the obviously fairer thing to award the wife of a now-wealthy American doctor after twenty-seven years of marriage is her community property entitlement of $1.5 million. But if the court had decided to take a deeper investigation of Islamic law in such a situation, they might have found that the stipulated mahr is not always the end of the story for a Muslim court – she might have been given an adjusted “mahr mithl” if the stipulated mahr was out of proportion to women of her peer group, and she might even have been awarded muta maintenance (equivalent to alimony) in an amount close to the community property award (Rapoport 2000). Further, Islamic legal precedent establishing that women have no obligation to do housework or even nursing children (and thus should be compensated for it if she chooses to do so⁸⁹) point to an awareness of the problem that community property laws sought to remedy (Al-Hibri 2000; Walter 1999; Welchman 2000: 136). It is a mistake to assume that awards under Islamic law are necessarily going to be worse for the wife than under US law. In fact, most spouses attempting to enforce a marriage contract in a US court are wives (not husbands), attempting to enforce rather high mahr amounts⁹⁰. And there have been some cases where a Muslim dower was honoured by a US court. In Aziz v. Aziz 1985, the New York Supreme Court found a Muslim marriage contract, with its mahr provision of $5, 000 deferred and $32 prompt, to be judicially enforceable despite its being part of a religious ceremony because it conformed to the requirements of New York general contract law. This is true even though the contract apparently stated that it united the parties as husband and wife “under Islamic law.” The concerns of “Islamic law” by incorporation so central to the California Shaban court apparently did not bother the New York Supreme Court. In the words of the court, “the document at issue conforms to the requirements of [state contract law] and its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.” Later, the Florida Court of Appeals in Akileh v. Elchahal, 1996 when first confronted with the question of enforceability of a Muslim marriage contract cited Aziz v. Aziz favorably and upheld a Muslim dower provision because it found that Florida contract law applied to the secular terms of the Muslim contract. The Florida court found that, even though the husband and wife later disagreed over the meaning of the sadaq (the husband claimed that his understanding was that women always forfeited the mahr if they initiated the divorce), there was a clear agreement at the outset of the marriage that sadaq was to be paid if the parties divorced, and the court honored that agreement. The court even went so far as to say that the wife performed under the contract by entering into the marriage, and this constituted sufficient consideration on the part of the wife. The lesson for American Muslims from these cases is that, even though a Muslim marriage contract serves a religious function, if its terms are clear, an American court might find a way to enforce those terms serving a “secular” purpose, such as the financial mahr/sadaq awards due upon dissolution.

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 US courts in the cases described above⁹¹. These include: (1) it serves the purpose of financial security for the wife in the event of a divorce⁹², (2) it may serve as a deterrent to the husband declaring a unilateral talaq divorce⁹³, (3) it constitutes a form of compensation to a woman unjustly divorced by the husband’s unilateral talaq (4) it is the husband’s consideration for entering the marriage, under basic contract law principles, or, lastly, (5) it is simply a gift from the husband to the wife⁹⁴. Each of these functions of mahr might prompt a different analysis by a secular court attempting to understand it in secular terms, and there is consequently the potential for inconsistencies between courts and frustration by Muslim litigants who may interpret the purpose of their mahr differently than that focused on by the court. For example, if the mahr is merely a gift, then why does Islamic law treat it as a debt owed by the husband if he chooses not to pay it? (Esposito 1982: 25; Rapoport 2000: 10). If it is compensation for unjustified unilateral divorce by the husband, then what if the divorce at issue was initiated by the wife instead? If it serves as financial support for the wife after divorce, then does the initiator of the divorce (i.e. whether it is khul’ or talaq) really matter, and can secular alimony and child support payments be substituted instead? Rapoport’s review of the evolution of the deferred mahr suggests that that institution did act as a substitute for alimony, but this does not speak to the rationale of the prompt mahr (Rapoport 2000). Further complicating all these analyses are the myriad variations on what mahr amount is payable up-front and what amount is deferred -- i.e. if it is substituted for alimony, then should Muslim women start asking for a large amount up front instead of a large deferred amount, to protect themselves against the possibility that a court will award them neither alimony nor their deferred mahr. And then there is the question of how to treat dowers that are not specified in monetary terms at all. All of these questions remain unanswered, and perhaps there is no uniform answer that applies to the situation of every woman (i.e. while one might need financial security, another might need deterrence against her husband’s unilateral divorce). Nevertheless, as these cases demand more and more judicial attention, they will also draw the eye of Muslim legal experts in the US to focus on basic Islamic jurisprudence on the subject, its appropriate interpretation in the context of modern-day USA, and then addressing how to present these conclusions to the judiciary.

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 United States and encourage those pursuing these cases (Al-Sarraf Interview 2001). New Jersey attorney Abed Awad has litigated several of family law cases involving mahr clauses and insists (contrary to much of Muslim popular opinion⁹⁵ ) that a Muslim marriage contract is not a prenuptial agreement. In a brief to the court in one of these cases, Awad argues that mahr is not consideration for the contract, but rather an effect of a Muslim marriage contract – an automatic consequence whenever a Muslim couple marries. This is borne out by classical jurisprudence on the subject and the fact that Muslim jurists would assign an equitable mahr to those wives whose contracts did not specify one (Welchman 2000: 136, 140; Rapoport 2000: 14) ⁹⁶ . Thus, enforcement of Muslim marriage contracts should be by simple contract law principles, and not by the more particularized rules of prenuptial agreements that vary from state to state but generally carry heightened scrutiny and additional rules. Indeed, in most states, a premarital agreement may not “promote dissolution” so that a promise of substantial payments upon divorce may be interpreted to invalidate that clause, as in Dajani, or even the entire agreement⁹⁷. Moreover, many Muslims are unaware that the a prenuptial agreement is meant to override all other standard laws regarding dissolution of marriage, such as inheritance, community property, alimony, and so on (Award Interview 2001). In Islamic law, however, these are separate questions -- a Muslim wife is entitled to both her mahr and her standard inheritance portion – and Awad points to this as another proof that the Muslim marriage contract should not be seen as a prenuptial agreement. Indeed, in the cases reviewed above, spouses asserting the enforceability of a Muslim marriage contract as a prenuptial agreement did not always succeed. In both California cases dealing with mahr claims as prenuptial agreements, Dajani and Shaban, the Court ultimately refused to honor the contract. In New York and Florida, the parties fared a bit better: in Aziz (NY)⁹⁸ and Akileh (FL) the Muslim dower provisions were held up, though the language of the Florida court indicates that they perceived the sadaq to be the husband’s consideration for entering into the contract, an analysis with which Awad would strongly disagree.

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 United States, the courts will presumably see more of litigation of mahr clauses. It remains to be seen whether there will be consistent treatment of these cases by state family law courts, and whether that treatment will be to review these cases as prenuptial agreements, seek to reject them as contracts with uncertain terms due to their religious references, or analyse them under straight contract law.

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 New York court held: “Agreements between divorcing spouses with respect to the religious upbringing of their children will be upheld by the courts only when incorporated into separation agreements, court orders, or signed stipulations. . . . In the absence of a written agreement, the custodial parent . . . may determine the religious training of the child.” And in Arain v. Arain, the New York Supreme Court rejected for lack of supporting evidence a custody-change request based on a claim that the wife had violated her agreement to “raise the child pursuant to the Muslim faith”. Muslims will note that this is in contrast to standard Islamic law rules on custody, which would hold that a non-Muslim’s wife failure to raise the children as Muslims would cause her custody of the child to lapse at least once age of discrimination is reached. This US judicial policy is based on several reasons, including the unconstitutional judicial promotion of a particular religion, and avoidance of judicial interference in an ongoing marriage. (Zummo v. Zummo) As a result, Muslim marriage contracts including a religion-of-the-child clause are unlikely to be enforced because these contracts are usually likened to prenuptial agreements in order to be enforced. However, upon divorce, if such an agreement is possible (either through divorce mediation, or informally between themselves), the parties may be able to accomplish this goal, if the agreement is included in their documented separation agreement. In any case, religious upbringing of the children is a complicated and risky business, and (as discussed earlier) is one of the reasons some Muslims today warn against marriage to non-Muslims (Al-Hibri 2000).

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 United States, the court will look to the law of the foreign state. For example, in a case as old as 1912, Kapigian v. Minassian, the Supreme Court of Massachusetts held as valid the Turkish law of the time which automatically nullified the marriage of a non-Muslim woman to a non-Muslim man upon the wife’s conversion to Islam, and therefore upheld the divorce of a Turkish Muslim woman convert whose husband was then living (and remarried) in the United States.

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 divorces under New York law, and held the divorce invalid. Said the court, lex domicili still applied: “where the divorce is obtained within the jurisdiction of the state of New York, then it must be secured in accordance with the laws of that state.” And even where the domicile is a Muslim country, the US courts have demanded a judicial proceeding. Thus, in Seth v. Seth, the Texas Court of Appeals refused to recognize a talaq divorce conducted in Kuwait as valid because there was “no factual showing of any official state body in either India [where they were married] or Kuwait . . . had actually executed or confirmed the divorce and marriage.”

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 US court strikes down a mahr provision (whether as too religious or against public policy), many Muslim women believe this is a step backward, not forward, for women. Many assert that some of these cases do a serious injustice to Muslim women and to the aspects of Islamic law that protect their interest (Al-Hibri 1995). Other woman-affirming aspects of Islamic law as yet unaddressed by US courts include the recognition that a woman’s household work is financially compensable, that her property is exclusively her own, and the ability to personally tailor a marriage contract. These are all illustrations of Islamic jurisprudential progressiveness, some of which have only recently been paralleled in the west. Comparing different legal systems, therefore, must be undertaken with care, and it is dangerous to assume that a comity-based recognition of an alternative norm is always a concession to the lesser law. Sometimes it may be a step forward.

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, although Henderson (1997/1998, 423) notes a certain recent increase, with only three cases involving state court interpretation of custody decrees from Muslim countries being reported between 1945 and 1995, while a further three were reported in the year1995-1996 alone. These cases reveal differing treatment state-to-state of Islamic law’s custody rules, sometimes showing deference to Muslim courts and sometimes not, but always within the context of the US standard of the “best interests of the child.” For example, in Malak v. Malak, the California Court of Appeals evaluated two custody decisions from Muslim countries – one from Abu Dhabi and one from Lebanon. The Abu Dhabi decision, awarding custody to the father because of its rule automatically granting custody to fathers when the child reaches a given age, was held inconsistent with best interest standards and was rejected. The Lebanese Muslim court decree, on the other hand, was found to comply with American court’s expectations of notice and also legitimately considered “educational, social, psychologic[al], material, and moral factors, for the purpose of insuring the best interest of the two children and their present future and in the long run.¹⁰¹”

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 Maryland court concluded that in Pakistan custody determination of the best interest of the child was appropriately determined according to the morals and customs of Pakistani society. Said the court,

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; Henderson (1997-1998, 423) for example devotes an entire article to warning judges to be “circumspect of foreign custody decrees based on Islamic law” because it is “mechanical, formulaic and should not be followed.” One final note on American judicial treatment of Muslim marriage litigation as a whole: the fact that many of the cases reviewed in this section involve marriages either contracted or ended in a foreign country may at first seem not directly relevant to a study of Islamic family law in the United States. However, the complex international demographic of the Muslim population in the US means that many do not live in the same place over their entire lifetime – they may, for example, emigrate to the US early in life, move overseas later in life, or live a dual citizenship in more than one country. Or, perhaps, because they have overseas relatives, an individual Muslim may live in the United States full-time, but have their Muslim wedding ceremony overseas with extended family. Cases where the marriage is executed or dissolved overseas could all end up being litigated in the US courts. As the population of second generation and native US Muslims grows and their marriages end up in the courts for litigation, we may see more cases where the full law-related gamut of marital life occurs here in the U.S. In these cases, comity to other nations will not be at issue, and we will see cases where US judges are faced with the question of how to treat Islamic family law in the context of members of one of their domestic religious minorities.

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IV. Future Trends and Predictions

In order to fully appreciate the current developments in the broader picture of Muslim family law in the US, it is imperative to investigate the roots of current theories utilized by Muslim thinkers in North America. Over the past sixty years or so, Muslims in the US – whether indigenous, immigrants, or simply based in the US for a variety of reasons - have developed a vibrant and dynamic discourse on issues of Islam and modernity. This intellectual tradition focuses on both the development of theoretical approaches to relevant problems and practical methods for resolution of those challenges.

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 state legislation.¹⁰³” 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 US have explored a rich variety of issues that face the local Muslim community. One scholar who focuses on applying classical usuli scholarship to questions of modern Islamic law in the US is Taha Jabir al-Alwani, who reviews historical perspectives on the evolution of juristic disagreement in Islam and offers a methodology of modern inclusive scholarship (Al-Alwani 1985).

Bridging the worlds of Islamic and US law, there are a number of Muslim law professors in the United States. Though few, these professors have left their mark in community building and Islamic legal education, as well as excellence in their chosen secular legal fields. For example, Cherif Bassiouni, Professor of Law at DePaul University College of Law for over thirty years, is an expert in international criminal law and human rights. His numerous publications in several languages include pieces on general criminal law and human rights as well as Islamic law on these issues (for example Bassiouni 1987, 1982 1983) and he has been at the forefront of international and national debates on issues of human rights and Islam (including a nomination for the Nobel Peace Prize in 1999), urging that human rights are not alien to Islam, and in fact are founded on Islamic principles. Similarly, Abdullahi An-Naim, Professor at Emory University School of Law, is a significant contributor to the discussion on Islam and human rights. An-Naim (1992, 1990) has highlighted the critical issues and areas that must be addressed by modern Muslim societies in order to form institutions that respect basic human rights and liberties.

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 University of California at Los Angeles has, among other things, examined the historical and cultural record of Muslim communities who lived in non-Muslim states and drawn upon these lessons to particularize his interpretation of Islamic law to the US Muslim environment (El Fadl 1994). Abou El Fadl remains grounded in the classical traditions to the extent that he continues to inform his own work with discussions from classical Islamic scholarship (El Fadl 2001).

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 United Kingdom. The establishment of Muslim Law Shariah Councils (MLSC) whose aim it is to, “keep the identity of our community, to keep its laws, to keep it whole, while at the same time not breaking the laws of the state, having our own private language, while speaking the common language” (Shah-Kazemi 2001: 10) Muslims in the United States have begun to discuss the possibility of establishing such tribunals¹⁰⁴. One of the differences from the American and United Kingdom experiences is that Muslims in the United States have, at least at the theoretical level, been interested in a model of marriage dispute resolution that is more egalitarian in its approach. The English MLSCs, on the other hand, seem predicated on the role of the qadi as mediator or judge in the process of Muslim marriage dissolution.(Shah-Kazemi 2001). An example of the American approach can be seen in the work of Amr Abdalla, who calls for an Islamic model of intervention in conflict based on three principles: (1) restoring Islam to its message of justice, freedom and equality, (2) engaging the community in the intervention and resolution process, and (3) adjusting the intervention techniques according to the conflict situation (Abdalla, 2000)¹⁰⁵. Abdalla’s model was recently featured at a Harvard Law School “Mediation and Minority Cultures” conference, is currently part of the curriculum for Muslims studying to be imams at the School of Islamic and Social Sciences in Fairfax, Virginia¹⁰⁶, and has also drawn interest from Muslim communities in other cities in the US (“Mediation and Minority” 2000). Although Abdalla’s model includes a structure called an “Islamic Arbitration Council” which is parallel to the English MLSC model, he includes elements that engage those who are not just Islamic scholars and the community at-large. For instance, he names a new method of addressing disputes, such as the “shura jury” which is comprised of a volunteer group of Muslims who are asked by the mediator to research issues relevant to the dispute and share them with the third party interventionist (“Mediation and Minority” 2000). As the idea of establishing U.S. Muslim tribunals evolves, it will be important to examine whether they will mimic the role of a Muslim qadi who is the expert, or rather will be infused with the involvement of various other Muslim professionals and community members. The choice between these two approaches will have a significant influence on the ultimate nature of decisions emerging from these tribunals.

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 Pomona, California, a complicated mahr question was ultimately resolved by referral of the parties to two Muslim imams (mutually agreed to by the parties) on the mahr question, which was then returned to the family judge who allocated the dissolution amount accordingly (Erickson Interview 2001). This very innovative approach honored the parties’ allegiance to Islamic law while still maintaining state jurisdiction over the case.

Muslims in the US have a helpful precedent for these efforts in the experience of the Jewish community, which has already established an alternative dispute resolution faith-based system. The Jewish community’s beit din institutions play the role of arbitrators or mediators in marriage dissolution processes Greenberg-Kobrin 1999: 364). Further, many states have adopted laws that include clergy as potential mediators or counselors for family disputes; some now make it mandatory for couples and families to consult with some type of mediator whenever any issue dissolution or custody arises (Lyster 1996). Muslims may find that in addition to their imams, they can use the services of Muslim lawyers or social workers. Panels similar to beit din within the Jewish community might function as faith-based tribunals for various family law issues. Muslims may explore the option of naming possible mediators or arbitrators in their marriage contracts or pre-nuptial agreements. One of the challenges that they face is the binding nature of arbitration. If they choose to subject themselves to the judgment of a faith-based arbitrator in a marriage dissolution process, there are particular concerns regarding their waiver of the right to choose a secular forum. The contract that one signs must conform to all of the standard hallmarks of contract law¹⁰⁷. The idea of restoring Islamic values through creating an Islamic mediation model is echoed in other Muslim activist work asserting a restoration of Islam to its basic values of justice, freedom and equality. Many US Muslims see the message of reform as central to any action taken by a Muslim. They find the impetus to form social change movements inherent in the fact that they are Muslim, and hope to find a space that exists between the realm of an Islamic belief system and their US cultural milieu¹⁰⁸.

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 opi