Sharia in Florida Family Law Cases

On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Monday, August 25, 2014.

Divorce cases sometimes involve foreign laws: laws from other U.S. states, other countries and even religions. Can this include Sharia, or does a new Florida law prevent arguing Sharia in court?

Here is an example of how it can come up in a case. A woman from Egypt claims she married her husband according to Islamic law. The man tries to dismiss her divorce, arguing there was no valid marriage.

These are high stakes. If a judge rules they were married, there will be a divorce and she could receive alimony and marital assets. If there was no marriage, then the woman could be left with nothing.

To make the ruling, the judge needs to know what Sharia says about what a legal marriage is. The judge will also need to hear from expert witnesses on Islamic law before making a decision.

But what if Florida judges were could not even consider Sharia law (and other foreign laws) in making the decision. That may very well be the future the Florida legislature would like.

I’ve written about this before. Earlier this spring, the Florida Senate passed Senate Bill SB 386, which was approved by the Governor in May. Specifically, the bill prohibits courts in Florida from:

Basing a decision on a foreign law that does not grant the parties to litigation the same rights guaranteed by the Florida or U.S. Constitutions.

Enforcing a ‘choice of law’ clause in a contract which requires a dispute to be resolved under a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

Enforcing a ‘forum selection’ clause in a contract which requires a dispute to be resolved in a forum in which a party would be denied his or her fundamental rights guaranteed by the State Constitution or the United States Constitution.

There are now 32 states which have considered some limits on the application of foreign law, either through legislation or ballot initiative.

The bill does not identify any law which would deny a person’s fundamental rights. So courts will likely determine the impact of the bill on a case-by-case basis.

Also, Florida’s bill does not mention Sharia. In fact, no religion is mentioned at all, so a challenge to the law requires application of the Lemon test, requiring both a secular government purpose and that the law does not facilitate excessive governmental entanglement with religion.

Senate Bill 386 can be read here.

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