Will Virginia ban divorce courts from considering foreign law?

On behalf of Jarrell, Hicks & Waldman, PC posted in Divorce on Tuesday, October 9, 2012.

Divorces involving Muslim couples are beginning to raise complex issues in a number of courts throughout the United States, and it is likely that these issues will pervade the Virginia courts, as well. Often, a Muslim couple wants a judge to consider Islamic law in order to resolve their divorce case. Many disagree with such requests and want to prohibit divorce courts from considering foreign law. As this debate is examined, judges -- including those in Virginia -- typically apply the principles of American law and try to equitably resolve divorces.

Divorces between Muslim couples are at the center of attention in U.S. family law debates. Such divorces pose unique problems. For instance, couples usually want a judge to consider Shariah, or Islamic law, when determining whether there is a valid marriage and making orders for a division of assets. Such considerations are key aspects of Muslim divorces because the religion defines marriage differently and requires dowries. If a judge fails to consider Islamic law, the judge may unfairly decree that a couple is or is not married and fail to provide a spouse with adequate alimony, or any type of alimony at all.

Although Islamic law appears to be an inherent component of any Muslim couple's divorce, many states, as well as the platform of the Republican party, seek to prohibit divorce courts from considering foreign law. In fact, six states already have passed such restrictive laws and 20 others have tried or are in the process of implementing such laws. At this time, Virginia does not have such legislation in place.

In the midst of this legislative frenzy, divorce courts must still move forward and resolve divorce cases involving Muslim couples. Many judges, including those in Virginia, apply traditional notions of equity to resolve the matters. Doing so is consistent with Virginia law. The Virginia Code makes it clear that divorce proceedings shall be heard as equitable claims.

Balancing religion and the law is always tricky. Couples in Virginia who are seeking a divorce and have made religion a significant aspect of their relationship, should be wary of the complex issues that may arise and appreciate that U.S. courts may not be able to recognize foreign law in all cases.

Source: The Washington Post, "Shariah or not, Muslim divorces can get tricky," Omar Sacirbey, Oct. 1, 2012

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