Is there a right way to break up a family?
Some Thoughts on Divorce
I recently had the opportunity to speak at the Islamic Institute of Orange County (Masid Omar Farooq) on the subject of divorce. Maria Khani, of the women’s committee and of Access California Services, spoke extensively about in the needed to avoid divorce whenever possible and some of the pain that comes with divorce when it does occur. Divorce is mentioned extensively in the Quran and Hadith.
The Quran actually specifies a form of “alternative dispute resolution.”
If you fear a breach between them, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, God will cause their reconciliation, for God has full knowledge, and is acquainted with all things. (4:35)
Divorce though is halal (permissible), but not a nice thing; it’s part of life.
The Role of Lawyers in Divorce
The vast majority of the time, at least in my estimation, spending enormous sums of money to go through a divorce is usually irrational. I do not believe there are many people who are happy that they spent what they did to get one. Often the purpose of doing this is to force the other side to spend lots of money on legal fees as well. It’s a war of attrition.
Opting Out
One of the purposes behind our practice, though we do not actually do divorce, is to allow people the opportunity to live their lives based on their own values. This is what is essentially known as “opting out.” If there is a system that has consequences in individual or family is unhappy with, in my practice the reason for the unhappiness typically has to do with religion, they can contract out of nearly all the results they do not like.
The Purpose is Harmony
Before seeking out any type of an endeavor, it would be instructive think about why it is we are doing that thing. Obviously, misery-making is a poor premise to start with. if it’s obvious that the marriage cannot continue, and the goal should be maintaining harmony in the family and making life as easy as possible for all the various people who reside in the couple’s “village,” meaning families, friends, business associates, employees, employers and the like.
Public humiliation
The public nature of a divorce proceeding often makes it worse for everyone concerned. People are frequently prone to exaggerate or even make things up. When family members commit to go after each other, they do so aggressively and without any thought of the consequences.
One thing that seems to affect of the Muslim community quite frequently is that one party may see it fit to accuse the other of extremism, criminal activity or even rail against Muslims as a general matter, even if they themselves have been practicing Muslims.
Contracts in Marriage
While this concept may not be for everyone, for many, it is useful to either come up with a “prenuptial agreement or a “post-nuptial agreement.” The difference between the two is simple. One is done before marriage and the other after. At the very least, every single such agreement should include language providing for alternative dispute resolution, to the extent allowable by law. As will be explained below, many provisions may not be enforceable or, if they are enforceable, a court always has jurisdiction over them.
For people coming into a marriage with a substantial separate assets, or if they have inheritance coming, they should come up with some sort of an arrangement to maintain the maximum amount of peace even at times of conflict.
Community Property
There is a lot of confusion as to what community property is. Most people in California do have the notion that everything in marriage is “50/50,” however that’s not exactly the case. What you bring into the marriage before you come into it and what comes in through inheritance is “separate property.” Any property can be “transmuted” into community property or separate property. It is important that we know who owns what to avoid as many conflicts as possible to avoid disputes between family members. This is particularly the case in second (or more) marriage situations. Furthermore, under US Tax law, holding property as community property may be more beneficial from an income tax perspective. This should be considered but is beyond the scope of this post.
For those of you outside a community property state, it is possible to own property as community property, however a couple should seek legal advice before taking this step. If you are in a community property state such as California, do not assume your property is owned that way for all purposes. It likely is not.
Relationship Between Ownership and Inheritance
The Islamic rules of inheritance governs who gets what after death. It also includes a system of rules that are go with this, some of which contradicts California law. However, this system of inheritance does not govern who owns what before it is Inherited. As a result, it is generally accepted that there is no contradiction between community property and the Islamic rules of inheritance. One critical caveat however is that a person must not intended to injure any heirs entitled to receive inheritance in the Quran.
Contract Provisions May Not be Enforced
This really should not be a surprise, but many types of provisions that you might include in a contract relating to marriage would not be enforceable in any court in any jurisdiction in this country. Certain types of provisions may go against public policy. For example, a provision that “allows” polygamy cannot possibly be enforced. Other provisions may include vague references to “Sharia” or provisions such as who is the breadwinner, who does the laundry etc. Frequently these cannot be enforced.
Under California law, many provisions in ISNA’s prenuptial agreement would not be enforceable. To the credit of the author however, disputes would be resolved through arbitration under the uniform arbitration act. Generally speaking, one of the advantages of arbitration is that an arbitrator is able to deal with more issues than a judge can. It is not the province of a court in the United States to make a judgment on what Sharia is or is not. The Islamic Shura Council has been developing an alternative dispute resolution program for some time.
In re Marriage of Shaban
This case is made a somewhat more interesting given that it is a local (for the author) Orange County divorce concerning a Muslim couple. The court’s decision can be found here.
This is a couple that was married in Egypt. The marriage certificate specified that it was to be governed by the Sharia. Therefore, the husband took the position that virtually all of property was his. The court appropriately ruled that it does not know what Sharia is (while being somewhat more sophisticated sounding in saying that) and if they actually called an expert to testify, that expert would simply write a contract for them. There are other issues, however, the mere fact that a Muslim couple’s divorce ends up in a published opinion and an appellate court is a good enough reason to try to resolve things privately.
Support and Custody
It is important to know that the government takes an interest in who becomes a “ward of the state” and who raises children. This means arbitration cannot definitively resolve who raises children as well as spousal support. Any “Islamic arbitration” would have to consider California law and still recognize that any decision made can be subject to review by a judge.
Ways to Resolve Disputes
As would be the case in any organization, most of what is referred to as “alternative dispute resolution” relies on the following:
1. Negotiation. This would be the hardest one possibly for a couple breaking up. Though it may well be the most common. Couples can simply resolve all the issues themselves, including custody, property distribution support, and move on with their lives. One remarkable thing most people don’t realize is that negotiation likely resolves disputes more than 90% of the time when disputes are actually litigated by lawyers after clients spend many thousands of dollars paying these lawyers. Often, there are quicker paths to the same result.
2. Mediation. Family law courts will often require mediation of some sort. A mediator will typically try to bring the parties closer and produce solutions when there is an impasse.
3. Arbitration. This is private judging. However, courts do utilize arbitration and when they do, it’s a little different. Think of it as a contract where parties agree to abide by whatever decision the arbitrator makes. The decision is usually enforceable in court.
Conclusion -Avoid Court
Family is obviously a bad place to be when there is no harmony. Every action a person must take should be to increase harmony, even if the marriage cannot survive. This should include avoiding court to the extent possible.