Posted by Eugene Volokh:
Maryland's Highest Court Refuses to Recognize Pakistani (Islamic Law) Divorce:
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210196695
The case, decided yesterday, is [1]Aleem v. Aleem. The court reasoned
that, while foreign divorces are generally recognized unless they
violate the state's public policy, the sex-discriminatory nature of
Islamic divorce law does violate Maryland public policy, at least
where the parties are Maryland residents.
"If the Pakistani marriage contract is silent, [footnote: The
places in the �contract� where a division of property would
normally appear were simply left blank in the case at bar.]
Pakistani law does not recognize marital property. If a pre-marital
or post-marital agreement in Maryland is silent with respect to
marital property, those rights are recognized by Maryland law....
In other words, the �default� under Pakistani law is that Wife has
no rights to property titled in Husband�s name, while the �default�
under Maryland law is that the wife has marital property rights in
property titled in the husband�s name. We hold that this conflict
is so substantial that applying Pakistani law in the instant matter
would be contrary to Maryland public policy."
The talaq divorce of countries applying Islamic law, unless
substantially modified, is contrary to the public policy of this
state and we decline to give talaq, as it is presented in this
case, any comity. The Pakistani statutes providing that property
owned by the parties to a marriage, follows title upon the
dissolution of the marriage unless there are agreements otherwise,
conflicts with the laws of this State where, in the absence of
valid agreements otherwise or in the absence of waiver, marital
property is subject to fair and equitable division. Thus the
Pakistani statutes are wholly in conflict with the public policy of
this State as expressed in our statutes and we shall afford no
comity to those Pakistani statutes.
Additionally, a procedure that permits a man (and him only unless
he agrees otherwise) to evade a divorce action begun in this State
by rushing to the embassy of a country recognizing talaq and,
without prior notice to the wife, perform "I divorce thee ..."
three times [which is what happened in this case -EV] and thus
summarily terminate the marriage and deprive his wife of marital
property, confers insufficient due process to his wife.
Accordingly, for this additional reason the courts of Maryland
shall not recognize the talaq divorce performed here.
Earlier, the court also reasoned that "the enforceability of a foreign
talaq divorce provision, such as that presented here, in the courts of
Maryland, where only the male, i.e., husband, has an independent right
to utilize talaq and the wife may utilize it only with the husband�s
permission, is contrary to Maryland�s constitutional provisions
[barring sex discrimination] and thus is contrary to the 'public
policy' of Maryland." Just as Maryland courts [2]refuse to enforce
English libel law judgments, because those are arrived at without
regard to American free speech principles, so the court refused to
enforce the Pakistani divorce.
Note that this does not preclude the enforcement of prenuptial
contracts that expressly limit marital property rights -- the court
expressly speaks of the default Maryland rule applicable "[i]f a
pre-marital or post-marital agreement in Maryland is silent with
respect to marital property." (There might be some minimum rights that
a spouse might have under Maryland law notwithstanding any express
prenuptial agreements, but the court clearly contemplates that a good
deal of one's marital property rights can indeed be waived through
such an agreement.) It also doesn't speak to what happens if the
prenuptial contract doesn't give a specific limitation, but rather
states, "in the event of a divorce, we agree that the property shall
be divided by applying Pakistani law" or "... by applying Islamic law"
or "... under a decision of an arbitral tribunal convened through
[name of group]." Here the contract was entirely silent, so the court
had no occasion to decide the matter.
My view is that the court decision is quite right on these facts,
given the absence of any express agreement about marital property
division. I'm inclined to say that if the parties had agreed to an
uneven property division, or to a property division pursuant to
sex-discriminatory rules, that agreement should be enforceable (again,
subject to whatever minimum support requirement state law generally
imposes, and setting aside child support issues, which are a matter of
duty to the child and thus can't be waived by contract with the
spouse). The wife was only 18 when she married the husband, but she
was an adult, and should thus be held responsible for her contractual
decisions, even if they are made under social or family pressure. But
of course I'm aware that others may disagree, and may take a more
paternalistic view with regard to contractual enforcement; and in any
event in this case, there was no express contract to the first
instance.
Many thanks to [3]Prof. Howard Friedman (Religion Clause) for the
pointer. Prof. Friedman also links to this [4]Baltimore Sun article,
which has more on the case, including commentary from Islamic law
scholars.
References
1. http://mdcourts.gov/opinions/coa/2008/108a07.pdf
2. http://volokh.com/posts/1201728076.shtml
3.
http://religionclause.blogspot.com/2008/05/maryland-high-court-refuses-to-grant.html
4.
http://www.baltimoresun.com/news/local/bal-md.divorce07may07,0,4609441.story
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