One of the benefits of living in southeast Texas is the diversity of the people who live in our community.
A group of people that are often the subject of much discussion but a lack of understanding are our Muslim neighbors. Today’s blog post from the Law Office of Bryan Fagan, PLLC would like to introduce the of divorce in the Islamic faith.
Divorce essentials for practicing Muslims
Divorce is not something that is forbidden in Islam. Under the Quran, a husband is able to leave his wife for up to four months in a trial separation. Once that four-month period has elapsed the husband and wife are to reunite in order to continue their marriage or to obtain a divorce.
If the spouses pursue a divorce, the Quran encourages the parties to attempt to mediate their problems rather than to rush into a situation where there is a contested trial. Both spouses are to appoint an arbitrator to determine how property should be divided and how issues regarding their children should be decided. Both spouses and the community are obviously involved in this process.
How can a marriage be dissolved in Islam?
Outside of death, divorce is the most common method of dissolving a marriage. Spouses can agree to a divorce and obtain one through whatever judicial body has jurisdiction. The other method would be for either the husband or wife to request and obtain a divorce from their spouse. Most commonly a husband will request a divorce rather than the other way around.
A wife can only obtain a divorce from her husband by petitioning a court. Historically and traditionally, the reasons why a woman can obtain a divorce are quite limited. Physical or mental disorders, an inability to consummate the marriage or desertion are among the reasons why a woman may be able to request and obtain a divorce from her husband.
The Quran recognizes the third type of divorce in Islam known as a divorce by mutual agreement. When both spouses feel that they cannot perform the duties that they promised each other upon marriage and that their obedience to Allah would be harmed through the continuation of the marriage then a mutual agreement to reach a divorce is possible.
Particular requirements of a Muslim woman in their post-divorce life
Muslim women must, after a divorce is obtained, practice abstinence and not get remarried for a period of time.
The purpose of this is to allow for the father of a child that the mother may be pregnant with at the time of the divorce to be known. If it becomes known that a Muslim woman is pregnant after the divorce has been finalized then the ex-husband has an opportunity to reconcile with his spouse and invite his ex-wife back into the home.
The impact of Islamic marriage contracts in the United States
The purpose of marriage in the Islamic world is to allow a man and woman to begin to have sexual relations in order to legally have children. Traditionally any Muslim who has reached the age of puberty and agrees to the marriage can enter into a marital relationship.
For a marriage proposal to be valid in the Islamic world there must be a proposal and acceptance of that proposal in the same sitting. Witnesses to the marriage must also be present.
Prior to marriage, the couple must agree upon the language to be contained in a marriage contract. There is a sum of money to be paid from the husband to his wife to ensure that she is financially protected in the event that the marriage ends in divorce or death. When confronted with this part of a marriage contract American family court judges will approach them from the perspective of English common law rather than Islamic law.
For example, if this portion of an Islamic marriage contract is considered to be akin to a prenuptial agreement then you as the wife would receive only what is promised to you in the marriage contract. This would void your ability to collect property based on the community property laws of Texas. Obviously, this can put you in a bad position when it comes to dividing property upon divorce.
If an American judge views the marriage contract as a simple contract, the religious language contained in the marriage contract may cause it to be ruled as void. Then you would not be able to receive anything as prescribed in the marriage contract. If you formed this contract while living in a Muslim nation abroad and never expected to come to the United States (let alone get divorced here) this can cause a lot of problems as well.
We hear in the media reports of Shari’ah law and the potential effects of it on our own legal system. Usually, concerns over its implementation in the United States are overblown and not based in reality, though it should be noted that our systems of law are quite different.
Our courts in the United States largely do not know how to interpret a Muslim legal contract for marriage and know even less of their relevance to Islam. If you have entered into a marriage contract then you know all too well the difficulties associated with living under American secular law and having a marriage contract originating in Shari’ah law.
The purpose of a marriage contract in the Muslim world is to allow men and women to be able to live together as a successful and happy married couple. Upon divorce, the terms of the marriage contract would apply. Once in the United States and subject to our judicial system and its laws concerning marriage and divorce, it is essential for women, especially that judges understand to the best of their ability the importance of the marriage contract and its ability to impact the future finances of a divorced woman.
Prenuptial agreements vs. Islamic marriage contracts
Premarital agreements in Texas typically will divide up the community estate of two soon to be married people. Separate property is designated as such, debts are considered and divided up and property is allocated according to the wishes of the persons entering into the agreement.
This agreement can deviate from the community property laws of Texas. As a result, both spouses are in a position where they are able to negotiate certain aspects of their property to their advantage and disadvantage in order to reach an agreement that is suitable to both parties.
This is in contrast to an Islamic marriage contract. A wife in this type of contract does not ever anticipate or negotiate a contract with the thought that she is waiving any rights to her separate property or future amounts of what we would call spousal support or maintenance. There is no concept of community property or other methods of property division in Islamic law. As a result, the methods utilized in the Islamic world to help protect women upon divorce can be voided by construing an Islamic marriage contract as being a type of prenuptial agreement.
The bottom line, at least from the perspective of Muslims around the world, is that Islam places a great deal of importance in these contracts on the future financial stability of a wife upon the death or divorce of her spouse. Well-meaning judges in America run into the possibility of misinterpreting and voiding these protections by simply applying the law most commonly utilized in our country to a document that knows nothing of our legal traditions.
Questions about how the American legal system can impact an Islamic Marriage? Contact the Law Office of Bryan Fagan, PLLC
If you have any questions about how your marriage contract formed in another country under Islamic principles can impact a divorce in Texas please do not hesitate to contact the Law Office of Bryan Fagan, PLLC.
We represent people of different faith and cultural backgrounds and we take pride in doing so. A consultation with one of our licensed family law attorneys is free of charge and is available six days a week.