Navigating Islamic Divorce In America: Unraveling The Complexities Of Afghan Marriages

Islamic divorces can be tricky, especially when they involve foreign nationals. In the United States, Muslim Americans who divorce often want their marriages dissolved in accordance with Islamic law, which includes obtaining an Islamic divorce certificate from an Imam and having dowries and other provisions of marriage contracts enforced. However, this can be complicated when the marriage took place in a foreign country, as American judges may need to consider the laws of that country as well as American law.

In Afghanistan, divorce is also a complex issue, especially for women. Under the previous government, women could obtain a divorce without their husband's consent, but under the Taliban's strict interpretation of Islamic law, both parties must appear before a judge to request a divorce. As a result, thousands of Afghan women who were granted divorces under the previous government now fear for their status and safety.

Islamic divorce in America: Sharia law vs. secular law

Islamic Divorce in America: Sharia Law vs Secular Law

Islamic men who are foreign nationals but American residents often seek to divorce their spouses under Sharia law, which prevails in their country of origin. This is instead of following the secular law of the state in which they are domiciled.

Sharia Law

Sharia law, or Islamic law, is the divine counsel that Muslims follow to live a righteous life. It is derived from two main sources: the Quran, which is considered the direct word of God, and hadith—thousands of sayings and practices attributed to the Prophet Mohammed.

Sharia law dictates that marriage is a contract between a male and a female for the establishment of a family. It also states that marriage is intended to be permanent and that the relationship between spouses should be based on love.

There are several forms of divorce according to Islamic law, including talaq (repudiation of marriage), khul (mutual divorce), and faskh (dissolution of marriage before a religious court).

Talaq refers to the husband's right to dissolve the marriage by simply announcing to his wife that he repudiates her. The husband does not need to obtain court approval or provide justification for the divorce.

Khul is a contractual type of divorce that is initiated by the wife. It is justified by a verse in the Quran that states that a couple may separate if they fear they cannot conform to the bounds of God.

Secular Law

In the United States, divorce is governed by secular law, which varies by state. In general, divorce in America can be initiated by either the husband or wife and does not require the consent of both parties.

Key Differences

One key difference between Sharia and secular law as it relates to divorce is the role of the wife. Under Sharia law, a wife cannot divorce her husband of her own accord unless he has delegated that right to her. In contrast, secular law in America allows either spouse to initiate a divorce without the consent of the other.

Another difference is the process of obtaining a divorce. Under Sharia law, there are specific steps that need to be taken, including a waiting period (iddat) of three menstrual cycles or three months for non-menstruating women. During this time, the couple has the opportunity to reconcile, and the wife has the right to remain in the family home with the support of her husband.

In America, the process for obtaining a divorce varies depending on the state but generally involves filing a petition with the court and attending hearings. There is no requirement for a waiting period, and the wife does not have the automatic right to remain in the family home during the divorce proceedings.

Additionally, Sharia law dictates that the wife has the right to keep the dowry (mahr) paid to her, while secular law may dictate different financial arrangements depending on the state and individual circumstances.

While both Sharia and secular law allow for divorce, there are significant differences in the process and requirements. Islamic men residing in America who seek to divorce under Sharia law may face legal challenges, as seen in the case of In the Matter of Ramadan, where the New Hampshire Supreme Court refused to recognize a Lebanese divorce obtained by a husband residing in New Hampshire.

The role of the Imam in Islamic divorce

In Islam, divorce is a last resort and is considered extremely ugly and vile. It is allowed only if it is not possible to continue a marriage. The first step a couple should take is to evaluate and try to reconcile. If they find that divorce is the only option, there is no shame in proceeding.

In the case of a divorce initiated by the husband, it is known as talaq. The husband may make a verbal or written pronouncement, and the wife has the right to keep the dowry (mahr) paid to her.

If the wife initiates a divorce, she has two options. In the first case, known as khul'a, the wife may choose to return her dowry to end the marriage, thus forgoing her right to keep it. In the second case, the wife may petition an Imam for divorce with a cause. She must offer proof that her husband did not fulfil his responsibilities, and the Imam will make a determination based on the facts of the case and the law of the land.

In any Islamic divorce procedure, there is a three-month waiting period called iddah before the divorce is finalised. During this time, the couple can calm down and evaluate their relationship, and perhaps reconcile. The waiting period also allows the wife to determine whether she is expecting a child. If she is, the waiting period continues until after she has delivered the child.

Islamic law stipulates that the financial support of any children rests solely with the father. The Imam plays a crucial role in guiding the couple through the relevant Islamic teachings to ensure that the rights of both parties and any children are preserved.

Islamic marriage contracts and dowries

Islamic marriage is considered a social agreement and a legal contract. The contract, known as nikah, outlines the rights and responsibilities of the husband and wife. It is considered integral to a religiously valid Islamic marriage.

Mahr

Mahr is a compulsory part of an Islamic marriage contract. It is a gift of money, possessions or property from the husband to the wife, which becomes her exclusive property. It is an admission of her independence, as she becomes the owner of the money or property immediately, even if she had nothing before. It is also intended as a token of the husband's willing acceptance of the responsibility of bearing all the necessary expenses of his wife.

The mahr can consist of cash, jewellery, property or any other valuable asset. Either full payment or an agreed-upon payment schedule is required at the time of contract signature. The mahr may also be deferred until the termination of the marriage through death or divorce; in such an instance, the unpaid mahr becomes a debt against the husband's estate.

Mahr is not to be confused with dowry, which is a practice that has never been sanctioned by Islam but is common among Muslims of Indian, Pakistani and Bangladeshi origin. Dowry is a payment to the groom from the bride's family and is not an Islamic custom.

Contract Conditions

Negotiating and signing the contract is a requirement of marriage under Islamic law, and certain conditions must be upheld in order for it to be binding and recognised.

Consent: Both the groom and the bride must consent to the marriage, both verbally and in writing. A first-time bride is usually represented in the contract negotiations by her Wali—a male guardian who looks out for her best interests. The bride must also express her willingness to enter into marriage.

Witnesses: Two adult witnesses are required to verify the marriage contract.

Prenuptial contract conditions: Either the bride or the groom may submit contract conditions which, if agreed upon, become legally binding conditions of marriage. Often such conditions include agreements about the country where the couple will reside, the wife's right to continue her education or career life, or visitation arrangements with in-laws. Any condition that is allowable in Islamic law can be made part of the marriage contract, provided both parties agree.

Child custody in Islamic divorce

Islamic law, or Sharia law, dictates that the father is the child's natural and legal guardian. However, in the event of a divorce, custody of minor children is typically granted to the mother. This is because it is assumed that the mother will be more compassionate and aware of the child's needs.

Custody is granted to the mother until the child reaches the "age of discretion and independence", which is usually around seven or eight years old. At this point, the period of custody ends, and the child is free to make their own choices.

In some cases, custody may be granted to the father or another female relative if the mother remarries, is deemed an unfit parent, or is unable to care for the child. If the mother does remarry, custody is often passed to the next female caregiver in the child's life, such as a grandmother or aunt.

In the United States, custody laws vary by state, and the law does not distinguish or give preference to a parent based on their sex.

Islamic divorce in Afghanistan under Taliban rule

Under the Taliban's rule in Afghanistan, women who were divorced without their husband's consent under the previous government now fear for their safety. This is because the Taliban's strict interpretation of Islamic law does not recognise these "one-sided" divorces, and women who have remarried could be considered adulterers.

Previously, women could secure a divorce by testifying that their husband was abusive, even without him being present in court. Now, under the Taliban, both parties must appear before a judge, and women need witnesses to testify that the divorce is justified. This is difficult because domestic abuse often occurs behind closed doors with no witnesses present.

In Afghanistan, a man can divorce his wife without her agreement, but if a woman seeks a divorce, she must have her husband's approval. A woman can appeal for divorce if her husband is absent for a long time, cannot provide financially or physically for the family, is impotent, or abuses her to the point where her life is at risk. However, to get their husband's agreement, women are often forced to give up custody of their children.

The Taliban's interpretation of Islamic law, or Sharia law, has resulted in a crackdown on women's rights and severely restricted their access to education, employment, and freedom of movement. Women's aid groups and local aid groups that provided shelter and counselling for women in abusive relationships have been banned or forced to close under the Taliban.

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