1. Representation of Muslim Clients in Divorce Proceedings
More often than not, the initial concern by my Muslim female clients seeking representation in divorce cases is that I too, am Muslim and female. Once gender and religion are out of the way, the next question is usually about my ethnicity. If the client is not so direct about my ethnicity, the follow up question to gender and religion is whether I speak Hindi, Urdu, Arabic or perhaps, Amharic? My language skills are usually an indication of my ethnicity. Why is my ethnicity important? “Because you can understand my problems better,” the client responds. And so, this is usually how the attorney-client relationship starts in my office.
The couples that come into my office are a potpourri of ethnicities: some are foreign-born Muslim/American-born Muslim, foreign-born Muslim/non-Muslim or the couple may both be American-born Muslims. This last group may include converts. With the first and second combination, the common problem that faces the marriage relates to cross-cultural issues, usually with the American-born plaintiff complaining that the foreign-born spouse is verbally abusive and controlling and the foreign born Muslim complaining that the wife is not obedient enough. American-born convert females also complain that the husbands who are born into the religion tend to be less steadfast in their religious practice and over time, this, along with other cultural differences, becomes the reason to terminate the relationship.
By the time some clients in a foreign-born/convert relationship seek representation before civil courts, many have already been granted the sharia divorce. The civil divorce then becomes a matter of formality meant only to tidy up loose ends. The sharia divorce usually addresses all the issues and civil proceedings often proceed uncontested. Sometimes, however, complications arise. For example, the sharia divorce may fail to comply with State-issued guidelines on child support. The issue is then revisited in civil courts. In addition, parties sometimes find that they are unable to enforce sharia orders such as returning the dowry to the husband or providing financial support to the wife during her Iddat period. Legal representation during the sharia divorce proceedings is not commonplace although women may have a male guardian present. Female converts are usually not represented by a guardian during the sharia divorce proceedings where she happens to be the only convert in the family. A common experience among women in sharia divorce proceedings is that men dominate the proceedings and that men benefit the most when it comes to tangible property. Both parties may sign a document during the sharia divorce proceedings that is subsequently merged into a binding separation agreement to be made part of the record of a civil divorce case. When the female party retains counsel to represent her in the civil divorce proceedings, she often finds out for the first time that she may have been entitled to a greater share of marital property if she had sought relief in the civil system instead. For obvious reasons, male parties prefer sharia law over civil courts when it comes to distribution of tangible property. Women may sometimes also give up more in tangible property to mitigate any threats of withholding a sharia divorce.
American convert couples typically do a sharia divorce only to terminate the marriage. In cases where the couple did not take the extra step of registering the nikah with the State, no civil proceedings are filed.
Whether the parties are born Muslim or are converts, custody is always an issue but the degree of litigation varies depending on the make up of the couple. Marriages between foreign-born/American-born couples in divorce proceedings will have little regard for the sharia if it means being in a disadvantaged position when it comes to the issue of children. Couples who contest every issue are likely to file civil proceedings first to secure a more favorable position before seeking a sharia divorce. The sharia is very specific about custody and parties are usually aware of the outcome of the decision before the commencement of proceedings. A party who finds herself in an unfavorable position will seek to institute civil proceedings to secure a more favorable position with respect to custody and restricted or supervised visitation within the United States only. In these cases, the sharia divorce becomes the formality.
Muslim male clients generally do not contest physical custody of young children and most often, will give sole custody to the wife until the children reach the age of puberty in keeping with the majority opinion of Muslim scholars. However, the non-custodial father usually wants to be involved in all the decisions relating to the children. Muslim fathers who do contest physical custody are usually those married to women who never converted to Islam. The main concern at the time of the divorce is that the child will lack an Islamic upbringing if the mother gets sole physical custody. Interestingly, in these situations, the Muslim fathers were never steadfast in their observance of religion during the marriage but the issue of the child's religion becomes a paramount issue at the time of divorce. In one case, a male Muslim defendant offered his entire share of his business that he owned jointly with his non-Muslim wife in exchange for sole custody and upbringing of their young daughter in his country of origin. In another case, involving two foreign-born Muslim couples, the wife refused to give her husband visitation outside the United States. Her trepidation arose from the fact that her husband had become more religious during their marriage and she feared that the children would not be returned after a visit outside the United States where both sets of grandparents lived. In yet another case, a non-Muslim wife vehemently objected to visitation of her ten-year old son with his father in Saudi Arabia where the non-custodial Muslim husband was employed. Her apprehension stemmed from the possibility that her husband may abduct their son and that the Saudi Arabian government would be less inclined to return a child to a non-Muslim mother. Maryland State courts ruled in her favor against established precedent and in absence of any evidence that the father wanted physical custody. The father had remarried a French Canadian national and testified that he would probably follow his wife to Canada when their work visas in Saudi Arabia expired. During the divorce proceedings and despite her fears that the husband would abduct the child, the non-Muslim wife would give written consent to the father to visit with the child in Canada in consideration of a generous monetary gift. In this case the court attached great weight to the fact that Saudi Arabia was not a signatory to an international treaty relating to the return of children to the custodial parent. It is not uncommon for the non-Muslim or American-born Muslim mothers to make allegations of threats of abductions to influence the court on issues of custody and visitation.
While a common complaint among many custodial parents is the nonpayment of child support, Muslim men who are steadfast in their religious beliefs will adhere to sharia law and will meet their obligations as prescribed by the Quran. In one case, a client voluntarily supported his wife for a year after the sharia divorce, well beyond the Iddat period. In another case, a foreign-born Muslim father made timely voluntary child support and mortgage payments to his foreign-born Muslim wife following a negotiated settlement by respected members of the community. In yet another case, a foreign-born Muslim father provided child support and mortgage payments for the house that his pre-teen daughter resided in for many years following the final divorce. In this last case, the Muslim convert mother allowed exercise of visitation by the child outside the United States to Saudi Arabia where the child's father was employed.
Cases involving Muslim couples, whether converts or not, and whether or not children are involved, usually proceed as uncontested matters in the sharia divorce stage and civil proceedings. Cases involving foreign-born Muslim/non-Muslim couples without children are less complicated and each party will cooperate with a view to facilitating the final divorce. However, cases involving foreign-born Muslim/non-Muslim couples with children are the most expensive and time-consuming regardless of the foreign-born parent's adopted United States citizenship and long-term residence in the United States as this combination of couples are often very positional on the issues of custody and visitation.
2. Views of Muslim Americans
Excerpts from a Research Study of Mosque Members in the Washington, D.C. Metropolitan Area
KARAMAH: Muslim Women Lawyers for Human Rights
Amr Abdalla, Ph.D.
George Mason University
This research project was initiated and conducted under the auspices of KARAMAH: Muslim Women Lawyers for Human Rights, a U.S. based non-profit organization, and with funding from the Pluralism Project in Harvard University. The project emerged in response to the expansion of the Muslim community in the United States. This expansion, naturally, was accompanied by increase in the number and types of conflicts that community members face. Recent studies showed for example that the divorce rate among Muslims living in the United States increased to 30% in the recent years. In addition, the sprouting of mosques in most cities and towns was also accompanied by increased conflicts among mosque members regarding how to run the affairs and activities of their mosques.
Within this context, KARAMAH's Dispute Resolution Board decided to conduct research with members of the Muslim community in the Washington, D.C. area. The purpose of the research project was to assess community members' perspectives on the prevalence of certain conflicts in their communities; how they are handled; and how could models of professional Islamic mediation contribute to the effective resolution of such conflicts. Data was gathered from six Imams, and from 28 mosque members in seven different mosques.
This research highlighted several themes regarding conflicts within the Muslim communities of the Washington, D.C. area, and the views of the community members regarding establishing an Islamic model of mediation. An important theme was that the community realizes that part of its “growing pains” is the increase in quantity and quality of conflicts among community members. Family, marital and mosque-related conflicts are most prevalent. Parties to conflicts usually seek the intervention of family and friends in most conflicts, and also seek the help of Imams. Reliance on the state authority to resolve conflicts is regarded with caution and as a last resort. Culture, emotions and generational gaps were all cited as major sources of conflict, or causes for problematic interaction, or as obstacles to reaching resolutions.
The role played by Imams in resolving conflicts included a combination of techniques from counseling, to religious preaching to arbitration. Imams seemed to effectively utilize community members to establish balance between conflict parties, to provide support to women, and to rely on the knowledge of those with experience and credibility to provide advice. Imams in general seemed to be inclined towards determining, or suggesting, solutions to parties based on their knowledge of Islamic Shari'a and principles. Most Imams were open to working with other professionals such mental health professionals, and with state authorities.
As for the proposed Islamic model of mediation, the vast majority of respondents seemed to be very supportive of the idea. They also suggested that it was needed due to the increase in the number and types of conflicts. Respondents obviously preferred to see good practicing Muslims, trusted, credible, well-trained individuals to carry out that task. Cross-training in conflict resolution fields, and knowledge of Islamic Shari'a and principles was the major criteria required of such mediators. Respondents strongly suggested that Muslim mediators work with Imams and establish their credibility, based on their Islam, among community members. Some respondents suggested that those Muslim mediators would function more effectively if they were well known to the community, and not strangers to it.
The major concerns that respondents had regarding an Islamic system of mediation was maintaining privacy and confidentiality. Other concerns included bad reputation or poor training. Respondents expressed a strong desire to see models of conflict resolution that are inclusive of everyone, give voice to all parties, and aim at restoring harmony among community members, and avoid division and splintering of communities.
Based on the results of this research, the following recommendations are suggested for establishing models of Islamic mediation:
There is definitely a great need in the community for the establishment of Islamic mediation models and systems.
Due to the strong involvement of family and friends in the process of conflict resolution, wide, grass-root training on conflict resolution skills is needed for community members in general. This should not be confused with the design and implementation of an Islamic model of mediation for those who want to become professional Muslim mediators.
The training of Muslim mediators must combine knowledge from fields related to conflict resolution, and from Islamic Shari'a.
The Islamic model of mediation could hardly be based on the classic principles of the professional North American model of mediation, especially as it relates to family and inter-personal conflicts. This is because an Islamic model will often rely on community involvement in the process and resolution stages, and will encourage solutions based on religious principles and morals, not necessarily individually-based interests.
In order to avoid the confusion over what the term “mediation” means, it may be more effective to use the term “Islamic conflict resolution.” This is because an Islamic model will include more techniques than just “mediation” as understood in an American context.
The content of training of Muslim conflict resolution professionals must be based on a careful assessment of conflict resolution principles as established in the field of conflict analysis and resolution, and in Islam. Those educated and trained in both areas must conduct this task.
Muslim experts on the American legal system must be consulted on various aspects of the training and certification of Muslim conflict resolution professionals. They also must provide training on certain prevalent aspects of the legal system that conflict resolution professionals must be aware of.
Imams must be consulted on the proposed model of Islamic conflict resolution training, both for community members at large, and for Muslim conflict resolution professionals.
The implementation of an Islamic model of conflict resolution at mosques must occur in coordination with Imams, who must be an integral part of that model in terms of referrals, consultations, and involvement in the resolution process.
The selection of candidates to be Muslim conflict resolution professionals must be based on a well-developed criterion that include elements of reputable Islamic character, education in Islamic Shari'a, and education or training in conflict resolution-related fields.
Develop research processes to examine some of the technique used by Imams for resolving conflicts such as engaging family members, or credible community members, and to incorporate them into the Islamic professional conflict resolution models.
In training community members, and Muslim conflict resolution professionals, pay special attention to cultural and generational issues, and negative effects of emotional expressions, on conflicts taking place between members of the Muslim community.
The Islamic conflict resolution models must incorporate processes that allow for inclusion of all parties involved, and giving voice to all. They must also aim at restoring community harmony as a goal, and preventing community division and splintering.
Special attention must be paid to ensuring privacy of parties and confidentiality of the conflict resolution processes, especially when such processes take place in mosques.
Towards Developing Islamic Models of Dispute Resolution
Excerpts from “Abdalla, A. (2000). Principles of Islamic Interpersonal Conflict Intervention: a Search Within Islam and Western Literature. Journal of Law and Religion,15. 101-134.
In developing models for dispute resolution within the Islamic setting, it is important to recognize two methodological parameters. First, the discussion of dispute resolution within the Islamic setting removes the focus of the research from the realm of jurisprudence to the realm of inter-disciplinary research, from legality to morality, from the letter of law to its spirit, and from application of law to the pursuit of justice. The focus of such research no longer remains to be legal interpretations and precedents, which have been labored over and documented by legal scholars over the centuries and are known in the Islamic heritage as Fiqh. Fiqh becomes only a part of a larger research which encompasses culture, history, sociology, and psychology. For example, the Qur'an provides several rules related to divorce situations and conditions. Usually these Qur'anic verses include four elements: 1) a description of a divorce situation; 2) a rule related to a certain aspect of the divorce (i.e., financial arrangements as a result of the divorce, custody or nursing children); 3) a description of the civility and mannerism which parties should maintain during the process of divorce; and, 4) a reminder to the parties that they are accountable to their Creator for their actions. Fiqh usually focuses on the first two elements: the situation and the rule; together they make the Islamic law. Dispute resolution, on the other hand, attempts to maximize the benefit to the parties of applying not only the first two elements, but also the third and forth elements which relate to morality, justice and accountability. Dispute resolution, thus, attempts to operate within the larger Islamic world view, not just within its traditional legal system.
The second methodological parameter emphasizes the social justice and social change functions of dispute resolution in relation to Islamic theory and Islamic culture. It is necessary to distinguish between Islamic theory consisting of the main sources of Islam, Qur'an and Sunnah, and the Islamic culture which has developed over centuries of integrating the Islamic theory with cultural and traditional practices in different parts of the world. This distinction is vital because Islamic culture does not necessarily follow its sources in the Islamic theory. The mixing of Islamic theory with elements of existing cultures has often led to depriving Islam of its egalitarian, democratic drive. Abuses of power by Islamic rulers, and abuses against women and minorities at times, were triggered by inherent tribal and traditional norms, which overshadowed the pure Islamic message, or forced extreme interpretations of the sources in order to justify these practices. If the dispute resolution as a social movement is considered to be an agent for social change, it will be the responsibility of Islamic dispute resolution professionals to restore the Islamic principles of equality, justice and freedom through their practice. Therefore, it will be necessary to adhere only to Islamic sources, using interpretations which are consistent with the spirit of Islam. For example, in interpreting several of the Qur'anic verses and Hadith related to women, it is fundamentally important to recognize the Qur'anic emphasis on the equality of gender in terms of creation, action and accountability.2 This foundation sets the stage for a proper understanding of several matters which have been, for centuries, patriarchally misinterpreted. For example, several Islamic scholars tended to emphasize certain segments of Qur'anic verses while almost ignoring others, resulting in subjugating women and reinforcing male domination. Interpretations which loosely licensed polygamy, and which excluded women from public life, are abundant in Fiqh books. It is not sufficient, nor is it acceptable, to generate dispute resolution models in the Islamic setting which will only maintain the status quo described above, or impose western models without careful review of their advantages and their limitations. The challenge for Islamic dispute resolution professionals is to restore justice and equality by liberating Islam from the doctrine and cultural elements which subjugated its followers to political and social oppression.
. Jim Laue and Gerald Cormick. The Ethics of Intervention in Community Disputes. In The Ethics of Social Intervention. Bermant, G. et al (eds). Halsted Press. 1978. D.C., p.219
. Amina Wadud-Muhsin, Qur'an and Women. Penerbit Fajar Bakti Sdn. Bhd. 1992. Malaysia, p.34-36.
Value Parameters refer to violations that exceed Islamic boundaries (i.e. drinking alcohol and gambling). Proper interventions: Setting Islamic Value Parameters, Assisted Interpretation, and Professional Help.
Juristic Matters refer to issues of Islamic law. Proper interventions: Arbitration Council, Shura Jury, and Assisted Interpretation.
Cultural Issues refer to the mix up of cultural practices with religion. Proper intervention: Negotiation of Issues and community involvement.
Needs and Interests refer to parties' aspirations in a conflict situation. Proper intervention: Negotiation of Issues and community involvement.
Principles of Islamic Conflict Intervention
1. Restoring to Islam its messages of justice, freedom and equality.
2. Engaging the community in the intervention and resolution processes.
3. Adjusting the intervention techniques according to the conflict situation, and its stages.
Islamic Conflict Intervention Techniques
Setting Islamic Value Parameters: Mediator declares a certain behavior to be in total violation of Islamic values (i.e., alcohol and drug use, gambling, adultery).
Assisted Interpretation: Mediator provides interpretations of Quran and Sunnah to help parties recognize the proper Islamic implementation of disputed values.
Value Disengagement: Mediator assists parties in clarifying the mix up of Islamic values with values or norms derived from other value systems, especially traditional.
Shura Jury: A process of self-education and community involvement in which parties, assisted by the mediator, conduct research in Islamic sources of specific conflict issues. At the same time, a group of their peers (Shura Jury), selected from a volunteer group of Muslims in the community, are asked by the mediator to conduct a similar research. Upon completing their research, the parties present their findings to the Shura Jury. In case of disagreement, a majority vote is taken. The Shura Jury decision is not binding to parties or to other cases.
Islamic Arbitration Council: A process that can be used when an issue of great legal concern needs to be addressed. The council will consist of Muslim scholars and other professionals who are knowledgeable about the particular issue that is presented. This forum can also be resorted to when mediation has been utilized, but was not sufficient to address some of the issues introduced by the parties.
Negotiation of Issues: Mediator conducts private or open sessions to assist parties discuss their interests, needs, emotions and goals as they relate to a certain aspect of the conflict, and help them generate resolution options.
New Process Models: Models that are geared towards developing and institutionalizing processes that are based on Islamic values of justice, equality and freedom. For example, the inclusion of traditionally excluded parties such as children and the socio-economically disadvantaged.
Community Involvement: Mediator engages members of the community, known and respected by the parties, to provide emotional support and conflict escalation reduction during the mediation process.
Professional Help: Mediator suggests a type of professional help (i.e., therapy, drug rehabilitation, marriage counseling) that could assist parties.