Thursday, September 29, 2011
Professor Gabriel Sawma
Professor Gabriel Sawma
After the collapse of the Ottoman Empire, following World War One, Jordan was created as an Emirate of the Transjordan under the British Mandate, which was instituted by the League of Nations. By 1946, the mandate over Jordan came to an end, and Jordan was declared the Hashemite Kingdom of Jordan in April 1949 with a constitution that gave the king legislative and executive powers.
Until 1918, the legal system of Jordan was part of the Ottoman Empire; it was formed of Sharia courts, which applied various Islamic schools of jurisprudence, whose interpretation of the law was greatly influenced by local traditions. This made it possible for the religious judges to allow tribal traditions (‘urf) to be applied in cases involving personal status. Like the rest of the states who were ruled by the Empire, the 1917 Ottoman Family Code was also applied in Jordan and later became the basis of modern Jordanian personal status law. It follows the Hanafi school of thought in Sunni Islam.
Jordan’s personal status law for Muslims is based on Islamic sharia, which is summarized as the unchanging body of laws representing the Quran and prophetic hadiths (sayings and deeds attributed to the Prophet of Islam). Thus, Islamic sharia is recognized as part of the Jordanian law, whose application is extended to personal status law covering marriage, divorce, child custody, inheritance, and waqf (religious institutions owned by the Muslim community).
The Judiciary in Jordan
In 1952, a new constitution was adopted in Jordan; it declares that Islam is the state religion; Jordan’s legal system was reconstructed, and the court system divided between civilian judiciary (mahakin nizamiyyah), religious courts (mahakim diniyyah), and special courts established for specific reasons (mahakim khaassah). The religious courts are subdivided into Christian and Muslim courts in the areas of marriage, divorce, child custody, inheritance, and waqf.
Royal Decree 41, 1951 divides religious courts into two bodies: first degree (mahakim al-Bidayah), then one or more second degree courts (mahakim al-Issti’naf). The function of Islamic courts is stated in the following terms:
“Sharia courts are responsible for adjudicating personal status among Muslims and to look into disputes involving the establishment and internal administration of waqfs in the benefit of Muslims…and problems emanating from a marriage contract registered at the sharia court or any of its licensed authority, and that in accordance to what is most widely accepted from the Hanafi Jurisprudence (madhhab of Abu Hanifah) with the exceptions of any of its special laws.”
The Law of Personal Status for Muslims, No. 61 of 1976 codified the provisions of Islamic jurisprudence as it pertains to family relations, from engagement through marriage dissolution. Thus, personal status law of Jordan deals in disputes involving Islamic marriage contracts, divorce, child custody, guardianship (wali), inheritance, payment of blood price, mahr (amount of money or its equivalent the husband promise to give his bride if she agrees to marry him), spousal support (nafaqah), and any dispute that results from the marriage contract.
Jordanian law sets minimum marriage age of sixteen for men and fifteen for women. Under-age marriages are, nevertheless, validated under certain conditions. The consent of the guardian is required for a female under the age of eighteen, but not for a divorced wife or widow over eighteen. Although the Jordanian law requires the consent of the bride’s guardian to her first marriage, the judge (qadi) can override the guardian’s refusal if it has no justification according to the law. Marriages and divorce are required by law to be recorded in special registrars with the proper authority under penalty.
Polygamy is allowed in Jordan in compliance with Islamic sharia; under this rule, a man may marry up to four wives at the same time, provided that he secures separate dwelling to each wife. There is no requirement that an existing wife be notified of a subsequent polygamous marriage by her husband. The law requires the husband to pay a higher fee for registering a polygamous marriage than that of a monogamous union.
As for custody of children, the Hanafi School of jurisprudence mandates that in case of divorce or death of the husband, children belong to the husband and his family. In such a situation, the mother’s custody of her son ends when he reaches the age of seven and her daughter when she reaches the age of nine. The religious court may extend that period for more years.
Islamic Divorce Law in Jordan
Divorce is known in Arabic as talaq. As elsewhere in the countries who apply Islamic family law, marriage comes to an end when a divorce is uttered three times by the husband at his own will. He may announce the divorce in any place of his choosing, with or without a reason, and no judicial supervision is required. The presence of his wife is not necessary for a divorce to take effect. The words used by the husband to divorce his wife should be expressed clearly to indicate a divorce. He can say, for example: “you are divorced, you are divorced, you are divorced”, or “I divorce you, I divorce you, I divorce you”, or “my wife is divorced, my wife is divorced, my wife is divorced”. When uttering these words, the divorce becomes final, and the marriage will end immediately. Such a divorce is irrevocable; the husband cannot remarry his wife until she is married legally to a second man and then divorced from the second husband.
The divorce can be pronounced orally, by phone, via text message or by any means of communication in the presence of two male witnesses, or one male and two female witnesses. The witnesses are required to be Muslims. Under Islamic sharia, the testimony of one male is equivalent to two female witnesses.
As to women who seek divorce, the rules are different. A woman may seek judicial divorce under Islamic sharia if her husband delegated his wife to do so (tafweed el-talaq). This kind of divorce must be provided in the marriage contract; it implies that the husband gives his wife the authority to divorce herself under certain specified conditions. The wife may also seek Khul’ divorce, whereby she relinquishes her right to the mahr or to any financial compensation; a divorce may be obtained by mutual consent of both parties. It should be noted that any kind of divorce initiated by women has to be done through the judiciary.
Under the rules of Islamic sharia, the wife may seek judicial divorce if the husband disappeared for a long period of time, or if he neglects his wife by not providing her with maintenance, or if he has been sentenced to jail for a long period of time, or if he was impotent at the time of marriage and continued to be so after the marriage, or if the husband has been insane for a period of time or is suffering from leprosy or a virulent disease.
While the husband can end his divorce within a few minutes by uttering a divorce without the intervention of the court, the wife, on the other hand, has to go to the religious court to obtain a divorce (faskh). Judicial divorce initiated by the wife may take years to obtain.
Recognition of Islamic Jordanian Divorce by U.S. Court
Recognition of an ex parte divorce decree obtained in Jordan is not governed by the Full Faith and Credit Clause, but rather by the doctrine of “comity”, which may be broadly defined as the respect which the U.S. family courts render to the legal proceedings and judgments of other sovereign foreign nations. By ex parte it is meant that the other spouse neither participated in the divorce proceeding, did not make an appearance in the proceeding, nor was personally subject to the jurisdiction of the divorcing court. Divorces obtained in this manner are generally not recognized by U.S. courts but may be immune from attack by virtue of the estoppel doctrine. The reason usually given for no recognition is that jurisdiction for divorce is dependent upon the domicile of at least one of the spouses in the divorcing state, and the divorce will not be recognized without jurisdiction over the subject matter. The law to be applied in such cases is the law of the state of the domicile of the couples at the time the foreign divorce was obtained.
While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background; admitted to the Lebanese Bar Association of Beirut in 1970; Associate Member of the N.Y. State Bar Association; Associate Member of the American Bar Association. Professor: Middle East Constitutional Law; Professor of Islamic law. Expert consultant on recognition and enforcement of foreign divorce judgments in the USA, http://www.islamicdivorceinusa.com
Editor in Chief of International Law Blog: http://www.gabrielsawma.blogspot.com
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