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Sharia [i.e. Islamic law] is not a book of statutes or judicial
precedent imposed by a government, and it’s not a set of
regulations adjudicated in court. Rather, it is a body of
[Qurʾān]-based guidance that points Muslims toward living
an Islamic life. It doesn’t come from the state, and it doesn’t
even come in one book or a single collection of rules. Sharia
is divine and philosophical.
“”-Asifa Quraishi-Landes, Senior Scholar at SHARIAsource, “Five Myths
about Sharia,” Washington Post, June 24, 2016.
We use real cases to show how U.S. Courts consider Islamic law. Like
any other legal framework, Islamic law defines and dignifies the private rites and
contracts that people of faith and ordinary citizens otherwise hold dear, including
matters of marriage and commerce. What do American judges do
when adjudicating a case in which at least one seeks to navigate these private
practices and their protections through Islamic law, in jurisdictions of U.S. law?
Case 3: Husein v. Husein and Husein, WL 842023
FACTS:
Appellant: Alice Appellee: Bob’s son and Eve*
Alice and Bob are married in Ramallah, West Bank, in 1970, “as documented by a marriage contract
issued by the Palestinian National Authority.” They move to the U.S. in 1970. Alice and Bob have
three children together.
Between 1982 to 1985, Bob and Eve have four children. Bob also fathers two children with another
woman.
In August of 1992, Bob travels to Israel for three weeks to divorce Alice. The Sharīʿa Court in
Ramallah issues a divorce certificate on August 17, 1992. The certificate shows that Alice is not
present when the divorce is enacted.
*Names have been changed.
FACTS #2:
Appellant: Alice Appellee: Bob’s son and Eve*
Alice hears rumors that Bob has divorced her; Bob denies this. Moreover, Alice has not
witnessed Bob declaring divorce in the way the Qurʾān prescribes.
Bob and Eve wed in a mosque in 1995 and obtain a marriage license from Stark County Probate
Court. Bob signs an affidavit in October of 1996 stating that he married Alice in 1970 and divorced
her in 1992 before marrying Eve in February of 1995. Alice and Bob continue to file joint tax
returns under the status of “married” for 1993–1995.
*Names have been changed.
FACTS #3:
Appellant: Alice Appellee: Bob’s son and Eve*
Bob is fatally shot in April of 2000.
But…who is his surviving spouse? Was Bob ever legally divorced from
Alice in the opinion of the American courts?
*Names have been changed.
FACTS #4:
Appellant: Alice Appellee: Bob’s son and Eve*
After Bob’s death, Alice flies to Israel/Palestine and requests the Silwad Municipality Court to issue
official documentation stating that Bob had remarried her in September of 1992.
Bob’s son (mother not stated in the case) files for a hearing with the Stark County Common Pleas
Court, Probate Division in Ohio to determine the heirs of Bob’s convenience stores and livestock
business.
Stark County declares the 1992 divorce between Bob and Alice (the one she claims to not have
known about) valid, and therefore Eve is the surviving spouse of Bob.
Alice appeals this ruling, and the case goes to the Ohio Appellate Court.
*Names have been changed.
Overview:
Stark County Common Pleas
Court’s Finding:
1) The divorce between Alice and Bob was
legitimate.
2) Eve is the surviving spouse.
Ohio Appellate Court’s Finding:
1) The issue is the validity of the divorce.
2) Ohio law does not give credence to foreign
divorces if the parties involved never
established residency in the foreign country.
3) If there is no evidence of what a foreign court
requires for proof of residency, Ohio
assumes the requirements there are the
same as in Ohio—six months of residency
leading up to divorce filing.
4) Alice and Bob did not live in Ramallah in the
immediate six months leading up to the
divorce.
5) The divorce was not valid.
6) ∴ Alice is the surviving spouse.
Because Ramallah was not an established place of residence for Alice and
Bob, the divorce was invalid.
Alice is the surviving spouse.
“[I]n the absence of proof of the residency requirements to obtain a divorce
in Ramallah, we must presume the law is the same as that of Ohio. Ohio
requires that the plaintiff in action for divorce shall have been a resident of
the state for at least six months immediately before filing the complaint. It is
clear from appellant’s passport that he was not in Ramallah for six months
prior to obtaining the divorce. As found by the court, the decedent was in
Israel from August 9 through August 27, 1992. The assignment of error is
sustained.”
Located at Harvard Law School, SHARIAsource is a team of
advisors, scholars, and editors dedicated to providing content and context
on Islamic law in a collective mission to organize the world’s information on Islamic
law in a way that is accessible and useful.