May 8, 2008

Triumph of Policy


In a lot of looking around to research a continuing legal education class I did recently on the subject of U.S. courts enforcing Muslim law (left over from February's kerfuffle on that same subject) I could not find a single case where a U.S. court rejected a "Muslim arbitration agreement" on the basis that a choice of law clause picking Sharia would result in a fundamental policy of the state being circumvented.

Well, the state of Maryland came close. There was no arbitration agreement, but the state specifically said that the custom of talaq, which prevails in some but not all Muslim sects, did not constitute a valid divorce under Maryland law, and the wife was free to seek a civil divorce. The husband in that case wanted to keep his entire $2 million fortune to himself, so he tried to go the quick and easy route and filed some sort of document at the Pakistani embassy containing his talaq. I'm guessing that under the rules of his sect's version of Sharia (there are many different versions out there, which is one of the things that makes Islam such an atomized religion) that meant he got to keep the entire marital estate and the wife gets nothing.

No dice, said Maryland
. It doesn't matter what the customs are back in your home land, and it doesn't matter what the wife's expectations were when you got married there. It's not enough to say "I divorce thee" three times -- you need to file and the court needs to divide up your assets according to the same rules that apply to all Maryland residents.

The point here is that the state stood up for itself and enforced a basic policy applicable to everyone and said that religious customs must bow to the law. Using that reasoning, even if there had been an arbitration agreement with a choice of Sharia law, the Maryland court would have had to have said, no, talaq just isn't going to fly here.

Hat tip to Skepchick.

1 comment:

Barb said...

I agreed with the state here, also. We have our laws for good reasons. Men can't use up a woman and discard her and boot her to the street to be supported by the gov't. Of course, she wanted out first in this case. Does anyone know why?

It used to matter --according to our Judeo-Christian heritage --if you were an adulterer, you were the guilty party and would not fare as well in a divorce.

I think no-fault divorce is bad law --and unfair to the faithful spouse if the adulterer makes off with half the earnings --but especially if the wronged party was the one making the money.