Sharia Law on Divorce
By Beverly Bird
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When immigrants arrive in the United States, they bring the traditions of their faith with them. Sharia and its laws guide devout Muslims. Based on the teachings of the Quran and Mohammed, this Islamic code defines acceptable behavior in almost every aspect of a Muslim’s life, and it extends to ways in which a couple may end their marriage.
Divorce by Islamic Court
In many Muslim nations, the courts are set up to accommodate Sharia law through a process called “tafriq.” Depending on the country, the court may act in addition to a traditional Sharia divorce or in lieu of it. A couple can register with the court, notifying it that they would like to terminate their marriage. They’re then required to meet with a counselor over the course of a three-month period called “iddat.” The counselor will attempt to reconcile the couple before allowing them to move forward with divorce proceedings. If counseling fails, the couple’s divorce moves on to a judge, who will decide whether to permit them to end their marriage. (References 1, 2 and 5)
Before approaching an Islamic court for a legal divorce, a couple may already have divorced by the traditional terms of “talaq.” This involves a husband notifying his wife three times that he is divorcing her. After he does so the third time, the divorce is final. A wife might also have the right to divorce her husband this way if she included the provision in her marriage contract. Some countries, such as Kuwait, allow talaq by electronic means, such as a text message or email. After making the pronouncement, the couple can proceed to court for tafriq if they choose, or they may simply be content with a talaq divorce. If they go to court and the husband denies that he’s committed talaq, the marriage continues. If he admits it, the legal divorce proceeds.
“Khula” is a mutual divorce under Sharia law. It involves a woman paying her husband to gain his permission to allow her out of the marriage. Payment can be monetary or through some service provided to him. Her family might return his dowry to him, the goods or payment they received in exchange for their daughter as his wife. If he accepts, the divorce can move on to court for the tafriq process.
Some Muslim nations require a wife to submit to a period of iddat after a divorce, and the three-month counseling period of a tafriq divorce accommodates this. The three months coincide with three menstrual periods to prove that she is not pregnant. Traditionally, she is not to leave her home during these months, so she cannot conceive by another man during this time. If her husband decides he does not want a divorce after all, he can resume marital relations with her during iddat, with or without her agreement. If he does so, the divorce is off. If he doesn't, they are divorced.
Application in U.S.Courts
Other than the provisions of khula for a mutual divorce, Sharia law does not ordinarily address issues of property division or child custody. In the United States, however, couples must address these issues to receive a legal divorce. According to both CBS News and “Sharia Law and American State Courts,” American courts are increasingly considering the fundamentals of Sharia law when making divorce decisions for Muslim couples, even when those tenets fly in the face of the Constitution and individual state laws.
- The Law Office of Jeremy D. Morley: Divorce in the United Arab Emirates
- ExpertLaw: Overview of Shari’a and Prevalent Customs in Islamic Societies — Divorce and Child Custody
- Council on Foreign Relations: Islam — Governing Under Sharia
- Sharia Law and American State Courts: An Assessment of State Appellate Law Cases (PDF)
- CBS News: Fears of Sharia Law in America Grow Among Conservatives
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.