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.

On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Tuesday, January 14, 2014.

If you are in a divorce, and have religious divorce issues or foreign laws you must follow, can a Florida court uphold them? Last year the Florida Senate tried to restrict courts from applying foreign law to disputes relating to divorce. The ‘Anti-Shari’ah” bill died in the Senate by 1 vote. So can we now start divorcing under Sharia law? How about Jewish or Catholic rules?

As the Volokh Conspiracy recently posted, a New York court last week had to consider Saudi and Sharia law, and it turned out the world didn’t end:

In Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014) the Defendants tried to quash a subpoena because compliance would expose them to civil and criminal penalties under Saudi Arabian law.

The plaintiffs countered that Saudi law and Shari’ah law actually obligated a Saudi debtor to fully disclose its assets to its creditors. So the disclosure was consistent with Saudi and Shari’ah law.

The New York court agreed with the plaintiff.

There are times when Sharia, and other religious or foreign laws, come up in a divorce. Sometimes contracts will stipulate a ‘choice of law’. For example, a prenuptial agreement may designate “New York” as the jurisdiction whose law governs disputes arising between the couple.

Other times, a foreign law or religious custom is highly probative, and relevant to a case, so a court will want to conduct a review of any foreign statutes, case law, or secondary sources, and will have to rely heavily on expert testimony. Consider the Standard Charter case above.

This can be good thing, and a restriction on using foreign, and especially Shari’ah law, in courts seems counterproductive. Our legal system has been around a while, and does a good job of dealing with foreign and religious issues.

Florida Statute Chapter 61 is not being replaced by the Bible, Torah or Quran anytime soon. But as the New York court shows, sometimes foreign laws and customs can shed light on a Florida court’s ability to resolve questions of fact and law.