Ask Shaykh YQ – Episode 12 – How do We Reconcile Going to Western Courts for Marriages & Divorce Issues

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Yasir Qadhi

Channel: Yasir Qadhi

Series:

Episode Notes

Shaykh Yasir Qadhi explains on the issue of people going to western courts for marriage and divorce issues and what should be done when it conflicts with Islamic Law. 

In a nutshell, this is a case by case verdict and not a general matter. First, a Shari’ah standpoint should be advised and tried to incorporate into the arbitration. They should go to a qualified Faqih and sort it out.

Episode Transcript

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Somebody asked me how how do we reconcile going to Western courts, especially in marital or divorce issues when it conflicts with Islamic law?

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on

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almost

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any gala region in reinjure, II him?

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This is again, a very, very deep question. And perhaps we'll have a longer session about this, however, realize that this question number one, it is generally theoretical,

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and not practical. Why? Because

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we do not have any legislative power is just talk and the end of the day, the legislative power belongs to the country that you're living in. And number two, generally speaking, people who go to the courts are not interested in Islamic law. So a couple is having an argument or issue or two people are having an issue, they go to the court, they're not interested in what a thought they were called the or a chef has to say they've already decided it. Thirdly, this issue is highly problematic, as well, because the far right loves to jump on this and to claim that us Muslims are not patriotic. And you probably are aware A few years ago, there was an arbitration court here in

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Dallas, and national media jumped on it. Oh, Sharia is being applied in Dallas. There was Fox News, CNN, everybody went berserk. And what was it, it was a family arbitration little court, little room where the mom would arbitrary between husband and wife and the national media went berserk on it. So I have to be very careful because everything I say can and will be used against me in Fox News, you have to be really careful how things are said over here. And we have to realize as Muslims, we really need to educate ourselves Subhanallah we Muslims? We have to educate ourselves. Do you know that our Jewish cousins in this country, they are operating a parallel system of courts for the last

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50 years? And it is institutionalized? It is ratified by the government? It is completely legit. But nobody raises an eyebrow. And this system is called bet Dean literally Beit Dean the house of law. Dean means law, even Arabic Dean can also mean law are known. Beit Dean, the house of law, Beth Dean, and the Orthodox and conservative Jewish groups. They have hundreds of these many courts, including here in Dallas, Beck's Dean, were business partners, husband and wife can go in front of an actual rabbis like Sharia, like judges, Islamic judges, they have rabbis who are trained not in American law, but in what in Jewish law. And they will get their court case in that Jewish bettin

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the bad deal will ratify. And the government will allow this these two parties to arbitrary nobody raises an eyebrow when we want to do it. So panela the whole world objects. Why, frankly, because we didn't do our own homework. And we didn't know what to say. And we didn't do it professionally. So in a nutshell.

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Ideally, this topic needs to be explored more. And that's one of the reasons I'm answering this question to raise public awareness. Why can't we have our own equivalent of bad deeds? Why can't we? Why can't we? I'll tell you why. Because we are not organized. Otherwise, the law allows it. The Constitution allows it. And frankly, the courts embrace it. Why did the courts embrace it? Because it takes the headache off of their back. Instead of a longer list, you can say okay, and by the way, this is only in certain areas, areas where the court allows arbitration, the court will never allow you to do arbitration when it comes to crime when it comes to stealing or rape or murder. No, of

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course, not only one two people are disputing amongst themselves. And they both agree that we want a religious arbitration, not a secular arbitration. They both agree, and there's no third party. So you cannot have bed Dean, even in the Jewish system. When it comes to child custody. You have to go to the secular courts, because that's where the court says, Oh, no, we cannot have faith based but if a husband wife without children, they want to reconcile, right. If two business partners whenever consult the American Constitution, the court system welcomes arbitration. Go ahead, you guys do it, take it off our back. So we should have no problems where the court allows us to also do the same

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thing. But it is a voluntary opt in, both parties have to opt in and they sign that they will opt in. And there was a famous case, I think a decade ago where a Jewish couple they went to the bed Dean, then the wife disagreed. she sued in a civil court and the civil court sided with the bed Dean, and they said look, you signed you signed willingly, that I want to go to the vet Dean now you cannot want it the judgment is something you don't like you cannot then go and say Oh, I'm sorry. I disagree. No. So you agree you have to live up to your word to it.

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So this is a voluntary opt in system. And we should also do this. As far as I know, it does not happen anywhere in America. And the Muslim community, even though it's happening in every large city in the Jewish community, and honestly, this is one of those areas where we Muslims, we need to learn from the Jewish people and sit with them and see what have they done. And there are many Jewish rabbis that are willing to help us out in this regard. Because they realize the more the merrier. They realize their safety in numbers, they realize the more people do this, the better it is for them. So many things, we end them we have so many things in common. And that's why in some European

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countries, Jewish and Muslim communities have come together kosher and halal circumcision, they've come together because the laws affect the both of us. So politics have their role, and we have disagreements. But when it comes to living as minorities, we have so much work that we can do together. And that's something that's a topic that needs to be discussed. In any case, this is all theoretical, realistically, what is to be done? My response is it this is a case by case verdict, we cannot make a generic statement. If a Muslim couple goes to the secular courts, and I'm talking specifically about either a business partnership, or marriage relationship, they go to the secular

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court, and they're not interested in what the city has to say, then what can I do about them? What can I do leave it to their affairs, if they are interested? First, they should come to the Sharia compliant, and then see what can be done. See if we can do some type of arbitration within an Islamic realm with the ratification of the secular court. And that should be done we can, we can Institute many bet deeds, you don't need a formal body, you can just have a legally binding arbitration, any lawyer, any lawyer can give you a document that says these two people are fighting. And they've agreed to go to this arbitration and that arbitration are legally binding, as long as

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these conditions are met. So I encourage all of you Muslims that have any dispute, to think about going to a qualified, you know, fully qualified Mufti who knows the basics of American law, and also the mechanism of a lawyer and get it done. Now, suppose it wasn't done. And this is where the problem arises. And with this, we conclude suppose it wasn't done. And then especially marital issues, because by the way, business partnerships, generally speaking, secular course and Islamic law will be pretty similar business partnerships, generally speaking, you know, whatever the agreement is, is going to be by the agreement, whatever the contract was. So overall, there will be

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much more overlap. But Family Law, marriage and divorce, clearly, we have separate systems. So what can be done? This is a tricky one case by case basis, I'll speak generically, if the husband goes to the divorce court.

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It's pretty clear that after that has taken place, because the philosopher has the right of the husband. So the husband initiates the law in the secular system, it is an Islamic, but the bigger question comes, what if the wife goes to the divorce court and the husband is not wanting to do that? This is once again, I'm speaking generically do not apply anything I say to any specific case. First and foremost, every case is separate and unique, go to a qualified for paper, mostly. Secondly, speaking in generics, if the wife, quote unquote sues for divorce in a secular system, for reasons that go back to her own personal issues, not abuse, not he's not taking care of me, it's

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like I just don't remain married, like her own issues. And the husband eventually signs on to that divorce proceedings. Insha Allah, generally speaking, we can say this is a type of Hola. This is the type of Hola, which is an Islamic mechanism of divorce that comes from the woman. So she is suing for divorce for personal reasons. She's not saying he's beating me up, she is not saying he's not meant to. She's simply saying, I don't like the guy. I don't want to remain married to him. That's her personal choice in Islamic Sharia. This is called Hola. And that has its rulings and whatnot. So if the husband signs on, this is a type of no problem more complicated, and therefore I'm not going

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to give a generic verdict. What if she says he's beating me? What if she says, he's not taking care of me? What if she says he's abandoned me, and then she goes to the Islamic court, and then successfully gets divorce. And the husband, which unfortunately, is not uncommon, is simply a bad person. And he's simply not shows showing up to the divorce. And he simply allows the court to do whatever is this by law or not. And the response to this, the fifth Council has said, in such cases, the lady should come to the local scholar and present her case. And if he sees that there is validity, he may grant the Islamic divorce on top of the secular one. Right. So he will look at the

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most classic example abandoned husband, there's the most classic example, right? The husband is just a nasty person. He leaves the way so I'm not going to divorce you, whatever. You know how it goes in our culture. I'm not going to divorce you you go

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See what you can do? What can't you do Myskina she doesn't have anything, she goes to the secular, she sues for divorce, she's successful, but islamically the nigga hasn't been broken. So what fifth Council has said, This lady should come to a reputable clerical membership, he should examine, verify that this man has indeed abandoned her. This man is indeed not taking care of her. And then on top of that, he will then say yes, this man has not fulfilled his duties, he should try to contact us as the Islamic case here his side of the story. If the man verifies that you know what, he's just being an evil person he made the shift may then add on and say yes, that Allah has taken

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place and then essentially ratify the secular divorce. Now, what if it cannot be ratified, that's where the gray area comes. And I cannot give a generic fatwa case by case basis. But the bottom line, we need to work within the system and by the way, the Maliki school and it is the most advanced school when it comes to fill up minorities because the Maliki school flourished in underlords. After the collapse of the NASA dynasty for 200 years, the Muslims were a minority. So Maliki filter developed many laws about what should Muslims do in minority situations, and they were the ones who said when there is no Islamic system when there is no Islamic law, then every community

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will appoint its own scholar to act as the call de enforced by the more community, the community will then there is no judgment from Islamic State now. So what does one do? The Muslim community will say, this is our committee what the committee says will go so that we should do the same in this community as well in every community where we have a group of Roma two three, generally two, three is good because one person might be mistaken to three you do that and they will then decide these family matters and base it based upon that. And Allah Subhana Allah knows best.

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In a feed dounia Salah

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Leah

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Leah, a teenager