Talaq (conflict)

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Conflict of laws
Preliminary matters
Characterisation  · Incidental question
Renvoi  · Choice of law
Conflict of laws in the U.S.
Public policy  · Hague Conference
Definitional elements
State  · Jurisdiction  · Procedure
Forum non conveniens  · Lex causae
Lex fori  · Forum shopping
Lis alibi pendens
Connecting factors
Domicile  · Lex domicilii
Habitual residence
Nationality  · Lex patriae
Lex loci arbitri  · Lex situs
Lex loci contractus
Lex loci delicti commissi  · Lex loci actus
Lex loci solutionis  · Proper law
Lex loci celebrationis
Choice of law clause  · Dépeçage
Forum selection clause
Substantive legal areas
Status  · Capacity  · Contract  · Tort
Marriage  · Nullity  · Divorce
Get divorce  · Talaq divorce
Property  · Succession
Trusts
Enforcement
Enforcement of foreign judgments
Mareva injunctions  · Anti-suit injunctions

In Sunni Islamic Law, there are two forms of divorce known as the talaq and its less well-regulated Sunni version of triple talaq. This page deals with the relationship between religious and secular systems for terminating the marriage in the Conflict of Laws.

Contents

[edit] The process of talaq

The husband may initiate the divorce process by pronouncing the talaq, the formula of repudiation, three times. The first two times the talaq is pronounced, it may be withdrawn. But the third time it is pronounced, the divorce is irrevocable. There are a range of systems specifying the requisite formalities to complete an irrevocable divorce, i.e., whether some period of time must elapse between each pronouncement of talaq, whether there must be mediation, or the need for witnesses. For example, in Pakistan, section 7 Muslim Family Laws Ordinance 1961 requires the following steps:

  1. that the husband pronounces the required statement of divorce in front of witnesses; and
  2. gives written notice of that pronouncement to the Chairman of the local Union Council; and
  3. gives written notice to the wife;
  4. there is a waiting period of ninety days, or of a longer period of time if the wife is pregnant;
  5. an Arbitration Council must be constituted within thirty days of the date the written notice is given; and
  6. the Arbitration Council must take all steps necessary to try to bring about a reconciliation.

While Islamic law does not encourage or recommend polygamy, in the states where it is permitted, there is no waiting period before the husband can remarry. The wife must usually wait three months after the third talaq has been spoken before remarrying (this period is known as iddah). While the husband may divorce his wife extra-judicially when he considers the marriage has broken down, the wife may, according to some schools of Islamic law, approach a Sharia Court and petition it for a grant of divorce though this is to be avoided as far as possible, as guided by the saying of the Prophet, "among all the things that God has made legal, divorce is most hateful". This hadith encapsulates the complex attitude towards divorce; on the one hand, it is permissible to end a marriage rather than force the parties to endure the hardships of an intolerable life-long union. But divorce is a final resort, and to be avoided if at all possible. The Shariah permits either party to terminate the nikah or 'aqd (marriage contract). The dissolution at the wife's initiative, and with agreement of the husband, is known as khula (this is in contrast to rabbinical law, where only the husband can grant the get divorce). There is also provision in the Shariah for the wife to seek the judicial intervention of a qadi (Islamic judge) to obtain talaq for a range of reasons. There may also be an agreement in the marriage contract to confer the wife with the right to divorce should she want to, but a qadi must be informed if this is exercised. In countries like Malaysia, prenuptial agreements allow the wife to gain a divorce from the Sharia Court easily if the husband is at fault.

However, problems arise in those Western countries where no Sharia Court has been established. Indeed, most Western countries restrict the recognition of extra-judicial divorces obtained by those resident in the host state. Hence, merely because their lex domicilii (the law of their domicile) may permit divorce by talaq, spouses resident in, say, France cannot use that method in substitution for the local secular judicial system to terminate their marriage. But there is a clear public policy need to consider whether, in an increasingly multi-racial and multi-ethnic society, transnational Islamic divorces can or should be recognised. For these purposes, a distinction is usually drawn between the Nikah form of talaq which is the normative form of procedural talaq, and the classical bare form of talaq which is used in India and in Pakistani Kashmir.

[edit] Problems within a state

Some Sunni Islamic communities experience marriage and civil divorce difficulties while resident in secular and non-Islamic states. One of the most common divorce difficulties is that a spouse can be held in a limping marriage when the other spouse refuses co-operation in the religious form of divorce. A civil divorce obtained through local courts entitles the parties to remarry, but the capacity to remarry can also be a religious question. Where one party has the power to grant or withhold a religious divorce, this power can be used as a bargaining tool to pressure the other party to agree more or less favourable terms for residence and contact with children, and for maintenance and property settlements. Hence, in Sunni Islam a woman cannot remarry until her husband grants the talaq. Such provisions produce a conflict between the human rights of the woman to be free to marry and the freedom of people to practise their religion (see Article 18 of the United Nations Universal Declaration of Human Rights which is repeated almost word for word in Article 9(1) European Convention on Human Rights, International Covenant on Civil and Political Rights and the United Nations Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief[1]). They may also breach sex discrimination laws in some states, but the acceptance and implementation of the provisions within the local religious community are very real and should not be ignored. The difficulty is that most countries operate under constitutions based on a separation between church and state which forbid governments from interfering in the practice of religion within their territory unless the behaviour of one or more parties is in breach of the local civil or criminal law.

Hence, most Western states make any response to proceedings relevant to the marriage by the secular courts conditional on the relevant party taking the steps necessary to complete a religious divorce on fair terms so that:

  • either the court will impose excessively generous orders for maintenance and property settlement, or
  • deny access to a civil decree or to ancillary relief,
  • until the religious formalities have been completed.

It is noted that an indefinite delay or refusal to grant a decree absolute might compound the unfairness because the affected spouse might be denied the freedom to remarry under both the secular and the religious rules. Nevertheless, the Canadian courts have the power to dismiss any application, and to strike out any pleadings and affidavits filed by a spouse who has failed to remove religious barriers to the remarriage of the other spouse. In the so-called Second New York Gett Law, there is a narrower approach, preventing a person who has not removed the religious barriers from obtaining a divorce or decree or annulment. In Australia, the Family Court in Gwiazda v Gwiazda No. M10631 of 1992 used its general injunctive power to order a reluctant wife who refused to accept a get, to appear before the Beth Din in Melbourne. Emery J. observed that:

If I correctly understand the intention of the Act, then it is the clear duty of a judge of this court to ensure that appropriate orders are made fully effective, not only in theory but in fact. In this case the husband as a matter of law can marry any woman who is free to marry, subject only to the prohibitions in the Marriage Act, but as a matter of fact and practicability he cannot do so.

So-called "Gwiazda Orders" are now used when necessary to produce a fair result in cases involving all forms of religious marriage. The Australian Law Commission has proposed [2] that the decree nisi should not become absolute and, in any other proceedings except those relating to a child, the court should have the power to adjourn the proceedings. In English law, the present rules derive from the Divorce (Religious Marriages) Act 2002 (with the procedural the Family Proceedings (Amendment) Rules 2003), which applies if a decree nisi has been granted but not made absolute and the parties:

(a) were married in accordance with:
(i) the usages of the Jews, or
(ii) any other prescribed religious usages; and
(b) must co-operate if the marriage is to be dissolved in accordance with those usages.

On the application of either party, if the court is satisfied that in all the circumstances of the case it is just and reasonable to do so, it may order that the decree nisi is not made absolute until a declaration made by both parties that they have taken such steps as are required to dissolve the marriage in accordance with those usages is produced to the court. But no matter which country, if neither party to a religious marriage comes to the civil courts for relief, none of these options apply, and the law has no role to determine whether the party should facilitate the religious divorce.

[edit] Recognition and enforcement of the talaq between states

If the talaq is executed in a state where it is effective to terminate the marriage, this potentially affects the status and capacity of the spouses so that they are then free to remarry. Within the Conflict system, the enforcement of foreign judgments is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules. The general expectation as to choice of law depends on the characterisation of the issue. As a form of divorce, the rule might be that the lex loci actus (the law of the place where the transaction took place) should be applied and recognised universally so that the parties would avoid a limping marriage (i.e., that whether they are considered married will change depending on which states they visit or reside in). However, this may be against public policy because one of the parties is seeking to evade some mandatory provisions of law or it is not in the best interests of any children (see parens patriae). If the characterisation is status/capacity, this will be determined under the lex domicilii (the law of the domicile) in a common law state, and under the lex patriae (the law of the nationality) or habitual residence in a civil law state. Alternatively, the court seized of the matter might apply the lex fori (the municipal law of the forum state).

The best answer is always to produce an in rem solution, i.e., wherever possible, the result must be accepted in the majority of states around the world. Thus, if the talaq is effective under the lex loci actus and recognised under the laws relevant to determine status and capacity, it will be recognised so long as the best interests of the children are protected in any orders or agreements made by the parties. For example, in English law, Part II of the Family Law Act 1986 draws the distinction between a divorce obtained by "judicial or other proceedings" and the divorce obtained "otherwise than by means of proceedings". The Nikah form is recognised in UK if:

  • it is effective by the lex loci actus (the law of the place where it was obtained), and
  • at the relevant date, either party was:
habitually resident in,
domiciled either in accordance with the local law or English law, or
a national of that foreign country.

But a "bare" talaq will only be recognised in UK if:

  • it is effective by the law of the country where it was obtained and
  • at the relevant date, each party was domiciled in that country (or if only one was domiciled in that country, then the other was domiciled in another country where the bare talaq was recognised).

And no recognition will be allowed if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement. The intention is to prevent one spouse from evading the local judicial system by travelling to a country that does permit the talaq.

[edit] References

  • Freeland, R, "The Use and Abuse of Islamic Law", Volume 73, The Australian Law Journal, 130
  • Hasan, A, "Marriage in Islamic Law - A Brief Introduction", (March, 1999) Family Law, 164
  • Hinchcliffe, D, "Divorce in the Muslim World", (May, 2000), International Family Law, 63
  • South African Law Commission, Islamic Marriages and Related Matters, Project 59. July, 2003. [3]