Should judges consider, apply Shariah in domestic Muslim divorces?

When state law and religious law don’t see eye to eye, there are often complications. Such is the complex situation many Muslim Americans face when seeking a divorce from a marriage performed under Shariah, or Islamic law. Marriages recognized by Shariah are common in some parts of the world, including West Africa, but it’s not always clear whether those marriages are legally binding in another country.

So when a judge is presented a divorce case for a couple whose marriage was performed under Shariah, that judge must first determine whether the circumstances surrounding the marriage have any legal weight. And that’s often a murky subject requiring consultation with Islamic law experts.

But the decision carries enormous implications. If a Shariah marriage is deemed legally binding, the woman in the relationship will be granted alimony and property division rights just like any other marriage. But if not, the woman will receive no alimony and be entitled to no property, essentially leaving the marriage with nothing-in-hand. Fortunately, child custody is a separate issue, but a lack of tangible assets could put the woman at a disadvantage.

Some experts are calling for Shariah to be banned from use when determining the legality of marriages, saying that foreign laws should not determine how domestic laws are enforced. But this could create complications that deprive Muslims in Georgia and across the country from marrying and divorcing according to their religious beliefs. Such a ban could essentially violate those couples’ constitutional rights to freedom of religion.

Yet six states have already implemented laws preventing judges from considering Shariah law when making their judgments, and 20 more are considering those laws. With about one-third of all Muslim marriages ending in divorce in the United States, many couples and families could be affected if their observed religious law is kept out of divorce court.

Source: Washington Post, “Shariah or not, Muslim divorces can get tricky,” Omar Sacirbey, Oct. 1, 2012

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