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Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody

By Kristine Uhlman

UmHani

Submitted January, 2004

Contents

[Part 1] [Part 2] [Part 3] [Part 4]

7.0 - Recognition of Divorces Obtained in Secular or Foreign Courts

Shari'a courts do not recognize divorces obtained in secular courts of law. In addition, an Islamic divorce obtained outside the home country of the husband may not be recognized by that country's courts. For example, Egyptian divorce law requires that if one of the parties to a divorce is Egyptian, Egyptian law is the only enforceable law and the divorce action must occur in Egypt . "As for the Egyptian law stated, in relation to the enforced law in personal affairs cases, marriage and divorce, the act 131/1948 civil, article 13, paragraph 1, stated that the law of the husband country, at the date of concluding marriage contract is enforced on the sequences of marriage, and the article 14 of the said law, stated that (in the cases stated in the above mentioned articles, if one of the couples is Egyptian, the Egyptian law is the only enforced law.)" [81]

One devout Muslim American woman divorced her Egyptian husband under Shari'a law within the United States and then married another Muslim man. The Egyptian man abducted their three-year-old son to Egypt and accused the woman of infidelity because the initial divorce was not concluded in Egypt . The Egyptian court denied her custody of their son and found that her second marriage proved her infidelity. She received the following legal notification in response to her efforts to gain access to her son:

As for infidelity [that] was committed between the defendant, who professed Islam [the Muslim American mother], and [her new Muslim husband], in the presence of official document, the marriage contract, before being divorced or divorced by the claimant [her Egyptian ex-husband], so she committed infidelity and polygamy. The punishment of the said crime, by virtue of Allah Holly Sharea [sic], is stoning till death or keeping her in house till death.[82]

8.0 - Child Custody Following Divorce

Under Shari'a, a father is the natural guardian (al waley) of his children's persons and property. Shia doctrine also gives the child's paternal grandfather joint guardianship.[83] According to Shari'a, a child's paternal grandfather is his or her natural guardian after the father.[84] Under the laws of countries such as Kuwait , guardianship passes to the next relative on the father's side if the father and paternal grandfather are unable to act as guardian.[85] Depending on local laws, a father may be able to transfer his power of attorney over his child to other family members. In custody abduction cases, a father brought into court may use this as a means of keeping the child in the custody of his relatives and he may claim that he lacks legal authority to return the child to its mother.

A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father's family. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child. While the parent with physical custody cannot be compelled to send the child to the other parent's residence for visits, he or she must bring the child to a place where the other parent can see him or her.[86] Furthermore, in order to have physical custody, a parent must fulfill certain conditions. Firstly, the father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the parent's gender.[87] Since, by definition, Muslim fathers satisfy the specific requirements of a male custodian,[88] the following discussion will address only the requirements placed on a mother.

8.1 - Requirements of a Mother Custodian

To have physical custody, most juristic schools maintain that a mother must not be married to a stranger (a non-relative) or to a relative who is not in a prohibited degree of relation to the child.[89] The Shias, however, prohibit a mother from retaining custody if she marries any other man as long as the child's father is alive and eligible for custody.[90] While only the Shafii and Shia schools require a mother to be Muslim in order to have physical custody over a Muslim child born to a Muslim father, the Hanafi school considers denouncement of Islam (apostasy) a sufficient ground for denying a mother who was previously Muslim her right to custody.[91] Jurists of the other Sunni schools generally only require that the mother raise the child in the Islamic faith. However, the Sunni schools maintain that a mother loses her right to custody if there is reason to believe that she would influence the child's religious beliefs so as to compromise his or her Islamic upbringing. Examples of this would be the mother taking the child to church, teaching the child the articles of another religion, or performing the rites of another religion in front of him or her.[92] Certain other requirements also must be satisfied for a mother to have custody, such as the requirement that the mother not house the child in a home where he or she is disliked.[93]

8.2 - A Mother's Right to Physical Custody

In recognition of an infant's need for female care, all the juristic schools give first preference to a mother's claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian.[94] After divorce during the period of the mother's custody, she is generally entitled to receive custody wages from the father to help her maintain the child.[95] However, the period of female custody ends once the child reaches a certain age of custodial transfer. The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody. The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian. The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries.[96] Under the Hanafi school, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother's custody of her daughter ends. Most maintain that the mother's custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mother's custody to last until the girl reaches the age of womanhood.[97]

The importance of the early nurturing and physical custody of the mother is emphasized and protected in many Islamic countries. Preserving the bond between mothers and their young children is so important that it may result in the children accompanying their mother to prison. In Saudi Arabia , for instance, it has been observed by the author that nearly half of the population of the Central Riyadh Woman's Prison in 1983 consisted of children under the age of seven years. Another American mother, who was also imprisoned in the Kingdom during a divorce dispute with her Saudi husband in the early 1990s, also reported on the number of young children who accompanied their mothers into prison. One American woman told of a Saudi woman who had been imprisoned because her husband's family accused her of infidelity when she became pregnant several months after her husband's death. The Shari'a court would not separate a breast-feeding infant from its mother. Following the child's birth, the mother made every effort to extend breast-feeding and would not wean the child. After two years, the court found the mother unfit on religious grounds and the child was taken from her.

9.0 - Gender Relations and Restrictions on Women

Islam and the customs of traditional Islamic societies emphasize the need for women to be protected from accidentally falling into disobedience or dishonor. This objective is best accomplished by limiting women's opportunities to sin. Consequently, in countries such as Saudi Arabia , Iran , and Afghanistan women are prohibited from having direct contact with men outside the family circle. The sexes are separated at the work place, in public situations and, traditionally, in the home.[98] Certain societies expect women to cover their hair and bodies, to the extent that the dress code is enforced by self-appointed moral guardians of the community, one's family, and strangers, to the point where the conservative dress code is required if a woman wishes to avoid disgrace and public disdain. The most restrictive dress, required in Saudi Arabia , is the floor-length black abaya. Very conservative Islamic communities and families also require women to veil their faces. Although each society will differ in its interpretation of appropriate female attire, Islamic countries generally expect women, both Muslim and non-Muslim, to dress conservatively.

Some of the more conservative Islamic societies require women to be escorted in public at all times by their husband, or a mahram (a man with whom the woman is prohibited sexual relations). A mahram would include her father, brother, or son when he reaches the age of adulthood. In certain traditional societies, women cannot travel alone. In Saudi Arabia , this restriction extends to the prohibition on women driving cars and traveling within the country without official permission. One example from Dhahran, Saudi Arabia involves two working professionals, both educated in the United States , and both holding advanced graduate degrees. The husband was traveling in a remote part of the Kingdom when his wife received word of her father's hospitalization in Bahrain . Bahrain is a small island nation on the Persian Gulf, approximately fifteen minutes by airplane from Dhahran. Although her brother, an appropriate mahram, was at her father's side and able to travel to the Kingdom to escort her, tedious entry visa requirements called for the brother to be sponsored by her husband, a Saudi citizen. The Saudi husband could not be reached, and their son was too young to escort the mother or to sponsor the uncle. The woman was not allowed to exit the country, and her father died the following day. Even if the husband had provided his wife with written permission in anticipation of a family emergency, she could not have left the country without the physical presence of a mahram.

10.0 - Children and the Parent-Child Relationship

In traditional Islamic societies, motherhood in marriage is expected to be the primary aim of a Muslim woman's life.[99] While the intelligence and capabilities of women are recognized, women cannot rival men in those areas. A woman may work and pursue various aspirations deemed appropriate for the feminine role, but her family must be her priority. Parenthood is also central to the lives of Muslim men in traditional Islamic societies, although men generally have more freedom and opportunities to assume other roles in the world outside the home.

While fathers are responsible for the spiritual guidance and education of their children, a mother's role is to care for her children. Until a child reaches the age of spiritual awareness, his or her mother is the primary care provider. At that time, the child begins to participate in religious activities, such as prayers and fasting, and his or her father assumes his role as spiritual instructor and teacher. The mother continues to nurture the child and sets an example of obedience to God and to her husband.

Islam and traditional Muslim cultures emphasize the need for children to respect their parents. The Quran notes in particular the costs of pregnancy and breast feeding to mothers.[100] It instructs grown children to care for their elderly parents: "Treat them with humility and tenderness and say, 'Lord, be merciful to them; they nursed me when I was an infant."'[101] Failing to give one's parents their due is considered a sin. The only exception is cases where the actions of one or both parents threaten the child's fidelity to God. The child's duty to God is absolute, and supersedes the duty of obedience to parents.

10.1 - Circumcision of Children

Circumcision of boys is a universal custom in Islamic societies. In many places, circumcision is performed at the age of spiritual awareness, generally around the age of six to seven years. Traditionally, circumcisions are performed during a ceremony accompanied by a celebration. One Jordanian man expressed dismay at his son's circumcision at birth (instead of at a later age) because he recalled the ceremony and celebration at his own circumcision. A British diplomat had been invited by the man's family to the celebration and had brought marshmallows to serve as treats for the children. The novelty of the man's introduction to marshmallows combined with his memory of being the guest of honor at his own circumcision celebration made the event an important aspect of his cultural self-identity. The father mourned the fact that he could not provide the same heritage to his own son, but at the same time realized the benefits of infant circumcision.

Female circumcision is not mandated nor even recommended by Islam. However, it is an old, even pre-Islamic tradition, still practiced in certain parts of Africa in Muslim as well as Christian communities. In a study cited by Elizabeth Warnock Fernea in her book, Children in the Muslim Middle East,[102] it was found that both Christian and Muslim Egyptian women had been circumcised and that female circumcision was considered a family tradition. Most of the circumcised women who participated in the study were illiterate, and many believed they were following a religious tradition beneficial to the public interest. Many of the women interviewed believed that uncircumcised women have a higher, insatiable level of sexual desire, and that circumcision is important in order to please one's husband and to be associated with cleanliness and moral reserve. Mothers expressed their insistence that their daughters be circumcised. Egypt has banned female circumcision since 1959.[103]

10.2 - Extended Family

In many traditional Islamic cultures, adult male children are expected to provide a home for their mother and unmarried sisters once their father has passed away. This expectation, along with the obligation in some societies for a woman to have a mahram, can result in a widowed mother-in-law taking up residence in the home of her son and his wife. The situation sometimes results in a transfer of authority from the wife to the mother-in-law. This household structure is rare in the United States , but many American wives who returned to their husbands' homelands encountered a full-time resident mother-in-law.

Many families in Islamic societies are large and include several generations and extensions within a single household. The community of siblings, cousins and other relatives identify themselves as close members of the family and often seek the companionship of the group. The family is often self-sufficient in managing the affairs of its own members. For instance, many Islamic cultures expect that disputes among members be mediated first within the extended family. The father of a wife will often mediate on her behalf if divorce is anticipated.

American notions of individual identity can clash with traditional Islamic cultures' concepts of community, mutual support, and the submersion of self into the family. One American woman diplomat told the story of her relationship with her husband's Palestinian family that had numerous relatives throughout the Middle East and the United States . While working for the Department of State, she traveled often and usually without her husband when the trips were of short duration. To her dismay, wherever she traveled in the United States , her husband's relatives would greet her and insist on her staying at their home. When she explained that the travel was for business and she was expected to stay at a hotel, the family would arrange for a female relative to stay in her hotel room. On a trip to Los Angeles she finally lost patience and asked why they could not just leave her alone. Her request was met with disappointment: "But you can't be alone, you would be lonely! We want you to feel at home, to have family around you!" She finally realized her only solitude would be in her own home.

11.0 - Custody Abduction to the Islamic Countries

Because of the gender-based custody and divorce laws, and the lack of recognition of foreign secular, non-Islamic family court decisions, there are no legal processes that would require the return of an abducted child to the United States . Further, there is little cultural support for such a return, as the act of abduction from the United States is often perceived as a courageous act of rescue from life in a country with traditions contradicting those of Islam. Although the abducting parent may be motivated by resentment or may be acting in retaliation against his spouse, a parent who abducts a child from the United States often emphasizes the conviction that the act is in the best interest of the child.

Islamic Countries have become a safe-haven for those who commit custody abduction, due in part to the gender-based custody and divorce laws discussed above. It must be noted that the governments of the Islamic Countries do not actively promote custody abduction and prohibition of access to a loving parent is a non-Islamic act and not justified within the Muslim community.

Continue to Part 4 (Footnotes) - [Part 1] [Part 2] [Part 3] [Part 4]

The information relating to the legal requirements of specific foreign countries is obtained from past experience and is not necessarily authoritative. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. The author appreciates the editorial support and review of this article by the Washington office of Baker Botts L.L.P.

About the Article: Prepared for the California State Bar 2004 Winter Section Education Institute / International Law / Family Law Workshop on International Custody Abduction: Non-Hague, Islamic Countries. Reprinted with permission.

Copyright © 2004 Kristine Uhlman.All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.