Tag: Muslim Religious Divorce Contracts

Comity and an International Divorce in Texas

International divorce cases may require recognition here, or comity, as one couple from Pakistan discovered. After a woman received nothing from her husband’s talaq divorce in Pakistan, she then sought a property division in a Texas divorce from her real estate developer husband. Is the Texas family court required to recognize the Pakistan divorce decree as valid?

Comity International Divorce

A Scam in Pakistan?

The former wife, Azhar, and her former husband, Choudhri, were married in Pakistan. At that time, Azhar lived in Pakistan and her husband lived in Texas. After obtaining her visa, she traveled to Houston where they lived together as husband and wife.

The Wife returned to Pakistan to renew her visa. Reports claim she was tricked into going back to Pakistan so her husband could take advantage of Sharia Law to divorce her. While she was in Pakistan, he initiated a talaq divorce, the results of which meant she got nothing from the marriage.

Texas Hold‘em

The Wife filed for divorce in Texas, and the Husband tried to dismiss the case. Following the hearing, the trial court denied the Husband’s motion to dismiss based on comity, finding:

“enforcement of the certificate of divorce issued in Pakistan would be contrary to Texas public policy and would, if enforced, violate the Wife’s basic right to due process.”

Around the same time, the former wife was also challenging the Pakistan divorce in the Pakistan courts. At first, the Pakistan trial court ruled in the former wife’s favor, declaring their divorce void. But the former husband appealed, and the Pakistani appellate court reversed and dismissed the wife’s case. On appeal to the Supreme Court of Pakistan, the high court affirmed.

Back in Texas, the trial court entered a new order recognizing the Pakistan Supreme Court’s judgment that the divorce was valid. The Texas court dismissed the wife’s divorce action, and dismissed her property division claim with prejudice.

The wife appealed, arguing the trial court should not have granted comity to the Pakistani divorce because she was not personally served, and was only provided notice five days prior to the divorce by publication in a local circular.

In some cases, American courts may defer to the sovereignty of foreign nations according to principles of international comity. But U.S. states are not always required to give full faith and credit to foreign country judgments. For instance, a U.S. court will often decline to recognize a foreign divorce judgment if it was obtained without due process.

On appeal the Texas court found the original order dismissing the Texas divorce was made prior to the Pakistan Supreme Court’s involvement. The second Texas trial order recognizing the Pakistan Supreme Court was deserving of comity, and the Texas appellate court affirmed.

The opinion is available from MK Family Law here.

Enforceability of Islamic Prenuptial Agreement

The Texas Supreme Court recently had to decide whether an Islamic prenuptial agreement is enforceable. Especially interesting is whether the agreement’s, Arbitration by Fiqh Panel Clause, can be enforced in a family law case involving children.

Texas Islamic Agreement

‘All My Exes Live In Texas’

The Wife, Ayad, and her Husband, Latif married in 2008. In connection with their marriage, they signed an “Islamic Pre-Nuptial Agreement”.

In the Islamic Pre-Nuptial Agreement, they said: “Belief that Islam . . . is binding on them in all spheres of life, and that any conflict which may arise between the husband and the wife will be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in its absence by a Fiqh Panel.”

The three-person Figh Panel will be selected and provides that the panel “will not represent the parties in conflict, but rather, serve as impartial arbitrators and judges, guided by Islamic Law and its principles.” The majority decision of the Fiqh Panel will be binding and final.

Although the Wife’s signature appears on the Islamic Pre-Nuptial Agreement, she alleges that she did not become aware of its contents—or even see it—until she and her husband began experiencing marital difficulties in 2020.

The Wife argues she was “defrauded” into signing a prenup that violated her fundamental rights. In January 2021, she filed for divorce and sought to be appointed joint managing conservator of the couple’s six-year-old son.

Wife argued the term “Islamic Law” was too indefinite; the Agreement was void because it violated public policy; Husband’s previous breaches of the Agreement had excused Ayad from performing; and the Agreement was unconscionable.

The trial court held a hearing on Husband’s motion to enforce, and concluded it would order the parties to arbitrate under the Agreement. The court held a second hearing in which it gave each party twenty minutes to address solely whether the Agreement was entered into voluntarily.

The trial court ruled it had no discretion under the Texas General Arbitration Act but to enforce the Agreement and refer the parties to arbitration per the terms of their Agreement, but would review the award to determine if it violated constitutional rights or public policy, and would hold a hearing to determine whether the award was in the best interest of the child.

The Wife sought review in the Supreme Court of Texas.

Florida and Islamic Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr (Islamic Prenuptial Agreement) before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt. Many religions, especially Islam, have terms couples want to be governed by in the event of divorce.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the constitutionality of prenups, whether they violate Florida law or Florida public policy.

‘Deep in the Heart of Texas’

The Supreme Court of Texas agreed with the Wife that the family court was required to hear and determine her challenges to the Agreement’s validity and enforceability before referring the parties to arbitration.

The Family Code, which provides that a trial court “may” refer suits for dissolution of marriage to either binding or nonbinding arbitration based on the parties’ written agreement is subject to certain limits.

Before arbitration, if a party to a divorce asserts that the agreement to arbitrate is not valid or enforceable,” then the court may order arbitration only if it determines that the agreement is valid and enforceable.

Here, the court incorrectly concluded it “must refer parties to arbitration when it is contracted by the parties,” and that it had “no discretion but to enforce the Agreement.” Since the trial court did not resolve the Wife’s challenges in its order compelling arbitration, and incorrectly concluded it could not, the trial court erred.

The Texas Supreme Court opinion is here.

Interfaith Marriage and Divorce

Increasingly, couples are in interfaith marriages, meaning each person is from a different religion. Along with societal disapproval, are there any other possible problems a couple in an interfaith marriage face that could lead to divorce? A recent Indian case sheds some light.

Interfaith Marriage

Gujarat

India is a country of many religions. In the western state of Gujarat, roughly 88.6 percent of the population is Hindu and about 9.7 percent are Muslim. Recently, a division bench of the Gujarat High Court granted relief to an interfaith couple – but then went on to caution the wife’s parents not to “misbehave” due to their opposition to the interfaith marriage.

The order prohibiting in-law misbehavior concerns the marriage of a 26-year-old Muslim man to a 20-year-old Hindu woman under the Special Marriage Act in Ahmedabad in May 2021. The Special Marriage Act is a law that allows solemnization of marriages irrespective of the religion of the couple.

The Act also requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage.

However, the woman’s parents were opposed to the marriage and, the couple decided that the woman will stay at her parental home until their approval.

According to the court petition, the woman was subjected to physical and mental cruelty by her father over the marriage. Then, in December 2021, the woman left her home willingly and started residing at her matrimonial house.

The court also directed the woman’s parents to share the books and clothes of the woman that are in the parents’ possession as the woman is “desirous of continuing her studies,” while disposing the petition.

Interfaith Marriages

I have written about religion and divorce before. Marrying within the faith is still common in the United States, with nearly seven-in-ten married people (69%) saying that their spouse shares their religion, according to a recent Pew Research Center survey.

A comparison of recent and older marriages shows that having a spouse of the same religion may be less important to many Americans today than it was decades ago.

The Pew Religious Landscape Study found that almost four-in-ten Americans (39%) who have married since 2010 have a spouse who is in a different religious group. By contrast, only 19% of those who wed before 1960 report being in a religious intermarriage.

Some research suggested that marriages between members of the same religious group may be more durable than intermarriages. If this is true, the rise in religious intermarriage over time may not be as pronounced as it appears, since the Religious Landscape Study measures only marriages intact today.

Other surveys looking at divorce rates did not find an overall lower – higher divorce rate among interfaith couples. But did find that certain combinations made it much more likely that the marriage would end in divorce.

The most likely interfaith marriages to end in divorce were Evangelicals married to someone of no faith. This may simply be the case that the further apart the religions, the more likely divorce may be.

Interfaith India

The woman’s father, however, then filed a “false complaint” with the Danilimda police station alleging that his daughter left the house with cash and ornaments.

In response, the police visited the house of the husband and “started harassing the family members of the petitioner (husband) in order to get custody” of his wife. To “avoid unnecessary harassment by the police”, the couple left for Ajmer in Rajasthan.

The police soon brought the couple back to Danilimda police station and “illegally and arbitrarily” took the woman in custody. Following production before a magistrate court, was housed at Nari Vikas Gruh in Paldi.

The magistrate court subsequently handed over custody of the woman to her parents. Soon, represented by advocate Rafik Lokhandwala, the petitioner-husband moved the Gujarat HC with a habeas corpus petition.

The Indian Express article is here.

Enforcing an Islamic Mahr Prenuptial Agreement

The extent of a court enforcing a religious prenuptial agreement, like the Islamic Mahr agreement, is big news. A family judge in Florida recently ruled that an Islamic Mahr agreement was not only enforceable, but waived equitable distribution and temporary support. How did an appellate court view the ruling?

Mahr Prenuptial Agreement

The Mahr from Thar

For many religious couples, in lieu of a secular prenuptial agreement, they sign a religious contract. Catholics have prenuptial agreements and Jews have a ketubah. In this recent Florida divorce, the parties signed an Islamic premarital agreement called a “Mahr” or “Mehr” agreement.

Although the agreement was entered in Bangladesh, neither party claimed it should be interpreted under Bangladeshi or Sharia law.

A Mahr is a contract to pay money – frequently expressed in gold coins – promised by a groom to his bride in the event of death or divorce. The amount is agreed to before the marriage and negotiated between the parents of the couple.

This Mahr agreement was two pages long, and had the explicit promise by Former Husband to pay Former Wife a total of 15 Bangladeshi lac Taka upon marriage. Five lac Taka were to be paid up front on marriage, and ten more in the event of a divorce.

At the time of the trial, 10 lac Taka was worth about $12,000. The Bangladeshi Taka has not been appreciating against the dollar lately.

At trial, the Former Wife argued that the ten lac Taka Mahr agreement was only the minimum amount she could ask the Former Husband for. In the Former Wife’s view, the Mehr did not waive her right to equitable distribution and temporary alimony.

The Former Husband, on the other hand, argued that the ten lac Taka under the Mahr agreement was the maximum she could get. The purpose of the Mahr was to guarantee an agreed sum to her. By agreeing to a guaranteed payment in advance, she waived her rights to ask for anything else.

The family law judge found that the Former Wife had built up some equity in the jointly titled, marital home, but then awarded it to the Former Husband. Then the court ordered Former Wife to vacate the house.

Relying on the Mahr agreement, the judge also denied Former Wife temporary alimony, limiting her to the ten lac Taka lump sum.

The Former Wife appealed.

Florida Prenuptial Agreements

I’ve written about religious prenuptial agreements, such as the Mahr, before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.

Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt.

But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.

Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Florida the Sunshine Religious State?

Many people don’t realize that religious agreements can be enforceable in Florida. However, there is a limitation, only a religious agreement’s secular terms are enforceable as a contractual obligation. That is true even if the secular terms were agreed to in a religious ceremony.

Here, the parties disputed how the terms of the Mahr agreement should be interpreted. Former Husband argued the Mahr agreement was meant to protect a spouse in the event of a divorce, so the Mahr should be read as the entirety of Former Wife’s recovery.

Former Wife argued the lack of waiver language in the Mahr agreement –stating that the couple intended to waive equitable distribution and alimony – meant she was entitled to ask a Florida court for relief in addition to the Mahr.

The appellate court reversed, holding that parties to a prenuptial agreement — religious or secular — are allowed to contract away their traditional marital rights, but they must do so in a way that comports with Florida law.

To contract away marital rights, a prenuptial agreement’s plain language must unambiguously express a desire to waive equitable distribution. Additionally, any agreement that waives or limits the right to temporary support and attorney’s fees violates Florida public policy.

Because the Mahr did not expressly bar Former Wife from seeking a property division and alimony, it couldn’t overcome Florida’s strong public policy in favor of equitable distribution and temporary alimony.

The opinion is here.

 

Recognizing International Divorce Decrees

Turkey’s Court of Cassation is not recognizing the international divorce decrees of other countries if they are against public policy. Turkey’s high court recently threw out a lower court verdict that a man’s divorce from his wife in Saudi Arabia is valid in Turkey. The “triple talaq”, or “unilateral” divorce contradicted with “Turkish public order as it ignored the woman’s will.”

Coffee Grounds for Divorce

A Marmara Marriage

The Supreme Court of Appeals of Turkey, which was founded in 1868, is the last instance for reviewing verdicts given by courts of criminal and civil justice. The Supreme Court recently announced that it is rejecting a verdict related to a 2016 divorce case approved by a Family Court in Jeddah, Saudi Arabia. The sides were a Turkish citizen of Afghan origin and his wife, an Afghan citizen.

When the man, unidentified in court documents made public, filed a lawsuit for recognition of the divorce, a local court approved it. However, the wife took the case to a higher court, seeking to annul the divorce. The higher court of appeals rejected her appeal but the Court of Cassation, the ultimate authority in such cases, sided with the woman.

The court reasoned that although divorce cases settled abroad can be recognized in Turkey, the court should examine whether the divorce verdicts comply with “basic values of Turkish law, Turkish morals, basic rights and freedoms and shared values of developed communities and level of civilization.”

The top court said women and men have equal rights under the Turkish constitution. “The recognized verdict of (the Saudi) court is based on a document on talaq (unilateral divorce) and the wife is deemed divorced after a period of three months when she is not reunited with her husband. As a matter of fact, there is no divorce verdict in this case.

Such a verdict is based on a one-sided declaration of the husband and his claim of failure to reunion within three months ignores the woman’s free will and hence, openly contradicts with Turkish public order,” the court said.

Florida Religion and Divorce

I’ve written about the triple talaq and other aspects of religious divorces before. How does religion impact Florida divorce? First, there can be issues relating to parental responsibility Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility. Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes incubated over time in various cases.

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration.

In Florida, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family.

There is also international divorce jurisdiction angle when a divorce is based on religion. Florida, under the UCCJEA provides a general legal framework for recognition and enforcement of foreign custody and visitation decrees originating from foreign jurisdictions.

A foreign country is treated as a “state” for purposes of applying the UCCJEA. The UCCJEA, like the Hague Convention, can also be used to seek the return of a child from Florida to a foreign country.

But there are limits, as Turkey’s high court recently found. For example, when the foreign law itself fails to recognize a fundamental public policy tenet, such as considering the best interests of the child, the courts of Florida may decline to recognize the judgment. However, whether the foreign court has properly applied its law is a question for the foreign jurisdiction.

Triple Talaq

Saudi Arabia adheres to an interpretation of Islamic law though there is no written law. Triple Talaq allows Muslim men to leave their wives instantaneously by saying “talaq,” meaning divorce three times. In Saudi Arabia Men are granted the right to talaq and, until recently, the courts were not required to immediately inform women that their husbands unilaterally divorced them.

Unilateral divorce is exclusive to men while women are entitled to khul or khal, a type of divorce where the husband should agree to pay back the dowry of the wife seeking divorce.

Men also remain the woman’s “guardian” throughout divorce proceedings in the country where most things women seek to do require the company of a male guardian, from travel to marriage.

Turkey’s Daily Sabah article is here.

When Divorce Court Rules on Your Religion

When a divorce court rules on your religion of choice, Constitutional issues are reborn. This happens frequently when couples agree to raise their children in a certain religion. In a recent appellate case, after the parents chose Christianity as their religion of choice, an Arizona family judge had to decide whether Mormons were Christian.

Divorce Religion

A Monumental Judgment

A Mother and Father married in November 1999 and had two children. In December 2017, the Mother petitioned for divorce and filed with the divorce decree a parenting plan signed by both parents. The Parenting Plan stated:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care. Both parents agree that the minor children may be instructed in the Christian faith.

About a year after the divorce, the Father joined The Church of Jesus Christ of Latter-day Saints, and the children occasionally joined him at meetings. After the Mother learned the children were accompanying their Father to a Mormon Church, she moved to enforce the Parenting Plan, claiming the Mormon Church is not Christian under the Parenting Plan.

The family judge held two hearings on the enforcement petition. During the second hearing, the Mother called a youth ministry leader from her church to testify that Father’s Church is not Christian.

After taking the matter under advisement, the judge decided that the Parenting Plan directs that “the Children shall only be instructed in the Christian faith” and that Father’s Church was not “Christian” within the meaning of the Parenting Plan.

The family court judge decided the Father could not take the children to the Father’s Church’s services, that he had violated the Parenting Plan, and awarded the Mother attorney’s fees.

The Father appealed.

Florida Divorce and Religion

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Road to a Constitutional Victory

On appeal, the first thing the appellate court found was that the trial judge’s ruling was based on the wrong interpretation of the Parenting Plan. The religious-education section of the Parenting Plan unambiguously stated that:

“[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.”

This language, it was held, permitted the Father to take the children to any “place of worship,” be it “Christian” or “non-Christian.” Nothing in the clause explicitly limits or narrows this authority. The family judge was found to have erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

But, the appellate court also held that even if the clause expressly constrained the Father’s right the court would have vacated the holding because the court violated the First Amendment of the Constitution when it ruled that a Mormon Church is not Christian.

The appellate court ruled that the divorce judge had to abstain from handling Mother’s claim once it became clear the dispute concerned an ecclesiastical matter.

The Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, “preclude civil courts from inquiring into ecclesiastical matters.”

Here, the family court dove right into an ecclesiastical matter by addressing whether the Mormon Church is part of the Christian faith. That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Although the judge was interpreting the Parenting Plan, the court did not resolve it through neutral principles of law but instead engaged in the exact type of inquiry into church doctrine or belief that the First Amendment prohibits.

For example, at an evidentiary hearing, the trial judge allowed in testimony from a minister to claim that Mormon Church was not part of the Christian faith, and admitted a chart comparing the tenets of the Mormon Church with Christian beliefs. The court’s order specifically found “that Mormonism does not fall within the confines of the Christian faith.”

In reversing, the appellate court ruled that courts are not the appropriate forum to assess whether someone who self-identifies as “Christian” qualifies to use that term. If the trial court’s order could stand, the “harm of such a governmental intrusion into religious affairs would be irreparable.”

A parenting plan’s religious-education provision can be enforced without violating First Amendment principles if the dispute does not require a court to wade into matters of religious debate or dogma.

The Arizona opinion is here.

Religious Education, Child Custody & Stephens’ Squibs

Choosing between a secular and religious education is a common problem in child custody cases. When two Canadian parents couldn’t decide between a religious or secular school for their son, an Ontario family court judge decided the issue with the force of Niagra Falls.

Custody Educaton

Oh Canada

In one recent case, the father and the mother, who were married then separated, disagreed on the school that their three-year-old child would attend.

The father wanted the child to go to the Thornhill Nursery School and Kindergarten, a secular school, while the mother preferred for the child to go to the Associated Hebrew Schools, a private Jewish school. Both parents were Jewish and were raising their child in the Jewish faith.

The father argued that their son had previously attended the secular school and would benefit from the stability of returning there, that the cost of this school was significantly lower and that the child could have a separate Jewish education on Sundays.

Conversely, the mother argues that she has always remained steadfast in her belief that it is best for Joshua to attend AHS, a private Jewish school.  She alleged that their son is Jewish as are both parents and both sets of grandparents.

Their son was being raised in the Jewish faith. that requiring the child to have a separate Jewish education on Sundays would limit his time with his family and friends, and would result in additional costs.

Florida Education and Child Custody

I’ve written about custody and education issues before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

A CN Tower-ing Decision

The Ontario Superior Court of Justice decided that it was in the child’s best interests for his parents to enroll him at the Associated Hebrew Schools.

The Court based its decision on the best interest of the child. The best interest is not merely a label, but required the Ontario family court to consider the child’s needs and circumstances, including, the emotional ties between the child and each family, people involved in the child’s care and upbringing; and the child’s preferences among others.

The family law judge found that both parents agreed that the child should be in school despite the risk of Covid-19 and should be raised as a member of the Jewish faith.

Both schools were adequate educational facilities which have adequately addressed Covid-19 risks.  In terms of geographical proximity neither requires extensive travel and the child will experience change whichever school he attends.

The civil family judge in Canada reasoned the religious school was in the child’s best interest because it offers an academic education, religious instruction and Hebrew during the week.

This was preferable to the father’s request he be enrolled in a supplemental Jewish Program in addition to his secular school. The supplemental Jewish Program would occur on Sundays and parenting time is precious and weekend times are crucial.

The judge also determined that the cost of religious school was not significantly more than the secular for junior kindergarten.  While religious school tuition is $14,185, and secular school is $8,530, the added cost of the weekend supplemental Jewish Program raised the cost goes to $9,530.  And, religious tuition is eligible for a charitable tax receipt making the after-tax cost of tuition considerably lower.

Even when the parents are more closely aligned in their religious beliefs, sharp conflict can still arise over the form that the child’s religious education is to take, regarding religion and co-parenting arrangements.

The Ontario family court decision is available here.

Speaking on Stephens’ Squibs

I always enjoy talking with Eddie Stephens. Not surprisingly, I had a great time on Stephens’ Squibs, his monthly family law continuing legal education seminar where we discussed our recent constitutional victory in the appellate court – one of the rare times a divorce and family law case can turn on a constitutional question.

Episode 4, will be available on demand beginning November 15, 2020.

Learn more here.

 

The Divorce Pandemic hits Saudi Arabia

The divorce pandemic hits Saudi Arabia after first starting in China, South Korea, and the United States – which have reported increases in divorce filings following the easing of some quarantine restrictions.

Saudi Divorce

Dry Statistics

According to Al-Amri, the number of divorce cases handled by courts across the Kingdom of Saudi Arabia reached 53,675 in 2017 or 149 cases each day.

But new reports show that divorce rates in Saudi Arabia have increased by 30% during the lockdown period enforced by the coronavirus or COVID-19 pandemic, reported the Dubai-based English language newspaper Gulf News quoting Saudi Justice Ministry.

The paper said the rate of divorce has increased compared to the same period last year.

However, during the lockdown period, 13,000 people also tied nuptial knots an increase of 5% compared to the same period in the previous year.

The ministry also informed that as many as 7,482 requests of divorce and Khula – a procedure in Islam which allows a woman to divorce her husband – were lodged.

According to the newspaper, some Saudi working women including doctors, citied secret marriages of their spouses as reasons for seeking a divorce.

Apparently, the preventive measures taken to stem the spread of the coronavirus including imposing lockdown – contributed to helping women to uncover the secret marriage of their husbands.

The high rate of divorce has become a destabilizing factor in Saudi society and it obstructs the Kingdom’s march to greater progress. Social consultant and researcher Salman Bin Mohammed Al-Amri has expressed his deep concern over the repercussions of the high incidence of divorce in society.

The office of the Grand Mufti approved 6,163 divorces during the same year, which is an increase of 846 cases compared to 2016.

“We should know that there are hundreds of divorces not recorded by the courts, so the actual figure could be much higher than what is officially reported”

The total number of divorces could be 40 to 45 percent of the total number of marriages, which was put at 159,386, in the same year. “This shows that we have to take drastic measures to bring down this huge number of divorce cases in the country,” Al-Amri told Okaz/Saudi Gazette.

Florida Divorce

I’ve written about the divorce statistics before. Forced together due to a shelter-in-place order may be the reason for your divorce, but legally you don’t need one. That’s because Florida is a no-fault divorce state.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or annoying behavior in a government enforced quarantine.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Shifting Sands

Measures must be taken to control divorces to reduce its social impact as it causes untold problems to the children of divorced couple. Men and women who have separated after years of living together also face psychological, economic and social problems.

“We have to conduct a detailed study on the increasing number of divorce cases in Saudi society to find a viable solution.”

Injustice, lack of honesty and trust, and confusion are the hallmarks of divorce cases across the Kingdom. It destabilizes families, the foundation of society.

Saudi and Gulf societies have changed considerably in recent years as a result of foreign influences and other factors, largely affecting social, cultural and economic norms.

“Our families have been influenced by the new urban culture and modern information technology. Education and employment of women and the Kingdom’s openness to foreign cultures were other factors that increased the divorce rate.”

Many parents have failed to prepare their sons to get married by training them to take responsibility. Some men fail to fulfill their Shariah duties toward their wives while those having more than one wife fail to treat all of them fairly and equally.

There are many other reasons including bad temper, infidelity, drug and liquor habits, miserly attitude and high dowry, in addition to psychological, health and social reasons.

Al-Amri said women are the most affected in case of divorce due to society’s negative attitude toward them. A divorcee loses economic support and financial security provided by her husband and this brings down her living standard, in addition to making her a burden on the family.

“As a result of this situation, such women will be forced to seek financial help from the Ministry of Labor and Social Affairs and charitable organizations. This will lead to depression and push them to commit suicide,” he explained.

Most divorced Arab women are unlikely to get married for a second time because of the tough attitude of society toward them.

The situation of divorced men is not very different as they too face a lot of difficulties and mental pressure. They may be forced to pay to child support. Many divorced men are afraid of marrying another woman due to the failure of the first marriage.

Children are the worst hit by divorce as they will lose the sense of security and will not be able to concentrate on their studies. The father will try to take custody of his children and keep them away from their mother. “This will create a horrible family atmosphere for children,” said Al-Amri.

Instead of becoming leaders of progress and prosperity, separated men and women would become depressed individuals unable to make any contributions to the country’s growth. It will increase financial burden on the state, charities and civil societies as the divorcees and their children will require financial support.

The Al Arabiya article is here.

 

Mixing Religion and Divorce

Afreen Rehman, a woman living in India, was recovering from an accident when her husband sent her family a letter with the word “talaq” written three times. Their marriage was over under an Islamic practice which India just banned. Rehman’s case proves mixing religion and divorce has its detractors . . . and its fans.

religion and divorce

Your Fast, Low-Cost Divorce

Rehman’s husband relied on an Islamic law that allows a husband to annul a marriage by uttering the word talaq—Arabic for “divorce”—three times. The practice is commonly known as “triple talaq,” or instant divorce.

India’s Parliament passed a bill to criminalize the triple talaq. A man who imposes an instant divorce on his wife faces up to three years in prison. Not surprisingly, women’s-rights activists, Islamic groups, and different political parties are divided on the issue.

Many Muslim women’s groups have demanded the change, saying that the tradition of instant divorce is detrimental to them. But conservative Islamic organizations say the government has no business getting involved in a religious practice. Others acknowledge the change is needed, but say that it comes at a time when Hindu nationalism is the dominant political movement in India.

Instant divorce is not mentioned in the Koran, which says that a couple chooses separation once they have made all possible efforts to resolve their differences. The custom is attributed to the hadith – the record of the traditions and sayings of Prophet Muhammad – which is held in high regard by Muslims.

After the bill’s passage, Indian Prime Minister Narendra Modi tweeted: “Parliament abolishes Triple Talaq and corrects a historic wrong done to Muslim women.”

Florida Mixing Religion and Divorce

I’ve written about the intersection of religion and divorce before. Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility.

Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes incubated over time in various cases.

For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration.

In Florida, a determination of the best interests of the child is made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family.

Clear as Tikka Masala

Rehmen’s case is not unique. There have been reported cases of Muslim men, such as Rehman’s husband, carrying out instant divorce through letters, text messages, emails, and WhatsApp messages — without providing alimony or financial support.

The government maintains that Muslim women are vulnerable both socially and financially because of an absence of reforms in the Muslim community. There is no official data on the prevalence of instant divorce in India.

But the passage of the Indian law also raises questions about whether the government should involve itself in what is essentially Muslim personal law. At issue is mixing religion and divorce. To account for a diverse population of different faiths, India’s constitution allows every religious group to formulate personal laws.

A Hindu would be allowed to follow Hindu rules for marriage; same for Christians, and a Muslim’s divorce comes under the purview of Muslim personal law.

The number of separated and abandoned women in India, at 2.3mm, is twice the number of divorced women. If the government were serious about women’s rights, some argue, it would introduce reforms across communities, rather than focusing on one religious practice pertaining to Muslims.

Opposition parties, as well as human-rights advocates, have condemned the practice of instant divorce, but say the ban feeds into the perceived marginalization of Muslims who feel threatened by recent attacks by Hindu vigilantes.

Some believe the legislation is a step toward replacing personal laws with a uniform civil code that would encompass all Indian citizens, irrespective of faith and also claim:

The bill takes away a chance at any reconciliation. Any man jailed because of the wife’s complaint will never opt for reconciliation. The bill leaves women penniless, children practically orphaned. If the man [is] imprisoned, how will he provide maintenance to his wife? The bill amounts to a state coercion.

The Atlantic article is here.

 

This is your Religious Prenup

A Detroit-area man must pay his former wife $50,000 under the terms of their Islamic prenup. Not only are prenuptial agreements on the rise among all engaged couples, they are also becoming very popular for religious couples. But is a religious prenup enforceable in the U.S.?

muslim prenup

Mehr Agreements

A Michigan man argued that a family court judge exceeded her authority by trying to resolve a religious issue in a divorce. In 2012, the husband approached Mohammed Ali and asked permission to marry Mr. Ali’s daughter.

They negotiated the terms of the arranged marriage. Mr. Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment the parties referred to as Mehr, a traditional component of Islamic marriages.

He agreed to the payment proposed by Mr. Ali. The Wife considered the offer of marriage, on the financial terms negotiated by her father, for approximately one year and ultimately decided to accept the marriage proposal and the parties married in 2013.

Florida Prenups

I’ve written about prenuptial agreements and even about a religious prenup. Prenuptial agreements are about more than just resolving uncertainty in a marriage.

Any couple who brings any personal or business assets to the union can benefit from one. They are also important to have in place before a couple starts investing in businesses, properties and other investments.

A prenuptial agreement (or “prenup” for short) is a contract between people intending to marry. A prenup determines spousal rights when the marriage ends by death or divorce. This can be especially important in second marriages.

If you divorce without a prenup, your property rights are determined under state law, and a spouse may have a claim to alimony while the suit for divorce is pending and after entry of a judgment.

Without a prenup, if your spouse dies, you will have statutory rights under state law to a share of your deceased spouse’s estate and may also have a right to lump sum death benefits, or a survivor annuity under a retirement plan.

That’s where prenups come in. Prospective spouses may limit or expand these rights by an agreement. Prenups are also used to protect the interests of children from a prior marriage, and to avoid a contested divorce. Prenups can be very worthwhile provided they’re done right.”

The most basic of prenups should list an inventory of premarital assets that would stay with the original owner in case of a divorce. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Religious Prenup

Back in the Michigan case, it was uncontested that the Husband and Wife had only a verbal agreement for payment of $51,000, in consideration of marriage, until the day of their marriage ceremony.

During that ceremony, the parties signed a document that placed the contract to marry in writing. The one-page document signed by the parties was titled “Marriage Certificate” which is the basis for the religious prenup dispute.

The document stated that the Groom solemnly proposes to marry the bride and take her as my wife and agree to pay Mehr of $51,000 Later. Furthermore, the document stated that the Bride solemnly accepted the proposal.

During the course of the marriage, the Husband made several payments, totaling $3,900, toward the $51,000 mehr. In 2016, the Wife filed an action for separate maintenance and the Husband filed a counterclaim for divorce.

During the divorce trial, plaintiff asked the trial court to enforce the contract to marry and award her $47,100, the unpaid amount of the mehr.

The trial court concluded that the parties executed a valid, simple contract and entered a judgment in plaintiff’s favor in the amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied the request for spousal support, and divided the parties’ marital assets.

Does Shariah Law Apply?

The Husband actually argued that the contract states on its face that it was made under Shariah law and that it was not made under any state law. But did the Mehr merely provide for a religious obligation or was it an enforceable contractual obligation under Michigan law?

The trial court clearly stated that it was not applying Shariah law, but was applying Michigan law to the parties’ contract:

“We are not interpreting or applying the contract between the parties under Shariah law, but are applying Michigan law to the review of the parties’ contract and the judgment of divorce entered by the trial court.”

In this case, neither the trial court nor this Court is required to resolve ecclesiastical questions. The trial court did not claim any power to grant the parties a divorce under Islamic law, but only the power to grant the parties a civil divorce under Michigan law.

The trial court did not decide the parties’ respective religious obligations under the tenets of their faith tradition, but only decided the parties’ respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant’s argument is without merit.

U.S. courts don’t enforce religious laws, be they Christian, Jewish or Muslim. U.S. courts enforce American law. As long as a religious agreement can be enforced without resolving theological questions it may be enforceable.

The U.S. News article is here.