Posts Tagged infidelity
By Attorney David Engler
In my practice, I have had the opportunity to represent about 8 people of the Muslim faith seeking a divorce. Most of these have been women and the rule in almost all marriages … it is the husband that causes the problem but the wife files for divorce. Like usual, I am always left wondering how in the heck did some guy get a beautiful educated woman willing to take care of him, get away. Bad judgement is consistent across all faiths. There have even been a couple of instances where I have been hired specifically to meet with the husband and talk some sense into his head.
Sharia law is given by God to provide guidelines and rules for much of the personal life and conduct of the Muslim. The concept of love and responsibility and respect for each other is found in Sharia. In America we develop an instant bias against anything Muslim given much of our knowledge comes from CNN news clips or political rants by anti-immigration crowd. Our law comes down from our representative bodies and the judges who interpret the law through cases. We rely on the courts and lawyers to help straighten out a messy divorce In Sharia the plaintiffs and defendants usually represent themselves. But the concepts of marriage and divorce in Sharia law mirror our U.S. Courts, so the effects of a Sharia Law marriage can largely be enforced in an American divorce court.
A marriage can be terminated by the husband in the ‘talaq’ process, or by the wife seeking divorce through ‘khul’. Under ‘faskh’, a marriage may be annulled or terminated by the ‘qadi’ judge.
Men have the right of unilateral divorce under classical Sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses. Upon divorce, the husband must pay the wife any delayed component of the dower. The American lawyer should introduce the Sharia marriage contract as evidence that this gift should be enforced during the temporary orders or as part of a property division.
If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Qur’an 2:230] A woman may not remarry for 5 months after a divorce to protect the proper lineage of children. In our courts we ask women of all ages before granting the divorce, “are you now pregnant.”. So often the name of the former husband appears on a birth certificate because the woman became pregnant during the marriage but not by the husband. It is interesting in Sharia law that this issue is dealt with by prohibiting marriage for five months after the divorce.
‘Mahr’ or dowry is a beautiful concept. It is security for the woman even if it is more in a symbolic sense. The bridegroom makes a gift of value that takes the form of a contract. The gift can be jewelry, money, a car or other items of value. Like our common law practice a gift like an engagement ring cannot be taken back because the marriage did not last.
At a Muslim marriage there is a point where the bride leaves to become part of the groom’s family. This can be a very touching moment because the daughter is now literally part of a new family. This does not mean she is subservient to this new family, just that the responsibility for her care belongs to the groom’s family. The modern reality is that Muslim women in America are career-oriented, well-educated and can usually take care of themselves. But once again the American lawyer should become familiar with Sharia law and consider calling an Imam, or cleric, to speak to as an expert as to what was considered as the parties entered the marriage contract.
In our temporary hearing orders or in determining an appropriate spousal support, the law provides that the understanding of the parties is appropriate evidence. It is also important to determine if the wife has sacrificed her income to support the husband’s education or stayed at home to raise children. Likewise it makes sense to introduce the Sharia marriage contract and cultural customs that form the basis of what the parties intended.
The fact that a marriage was arranged has no impact on a division of assets or spousal support award. It might even mean more in support if the court understands that it was the understanding that the woman truly was to be part of this new family and left so much behind. As a father of two young daughters (21 and 23) I definitely believe I could make a better choice of their mates than they could. I and their mother have more life experiences to draw upon and know what mistakes to avoid. So I do not look poorly upon arranged marriages even though my children can only be subjected to my gentle persuasion. If I push too much I will be tuned out. So it is interesting to note that in Muslim divorces it is not the fact of an arranged marriage that is at the root of the divorce. It is the usual suspects of lack of respect, infidelity, money problems and immaturity of thought.
My exposure to Sharia law and my Muslim clients has been one of the most positive in my career. There is little deceit and a great sense of honor that makes it easier to do my job.
By Attorney David Engler
They looked like a perfect couple. She had the athletic good looks of a former college soccer star. He was an up-and-coming programmer at a start-up that had plenty of cash. A new home and a sweet 5-year-old daughter. She was a stay at home Mom and was busy with her hobby/business as a champion Gordon Setter breeder.
But after 7 years of marriages, there were sharp edges. They both partied a bit too much on the weekends and there started to be a reason to get high at the end of each day. Anyway he worked hard and she was a good Mom and it wasn’t hurting anyone else.
Alcohol had a way of causing his one eye to go lazy and his tongue to become acid laced. She knew where the buttons were at and felt justified in giving them a push.
Her younger sister had grown up at their house. Partying was a family trait and the sister wasn’t spared. The wife left for four weeks to see if the bickering would stop. By this time there wasn’t anything foul that had not been said. Good health insurance provided for counseling and it started to work. Part of the plan between them was that the Wife would sneak into her own home so as not to disturb or confuse their daughter and late at night the couple started to rebuild a relationship and find intimacy. The second week into this rebuild the Husband said over the cell that he was going to bed early. She had old suspicions. She went over to the house anyways and turned the doorknob. He thought it was the daughter, put on his robe and went to the door. The look on his face told everything. “where is she?”, she screamed. He denied knowing anything. She looked around the room and under the bed. She tried to open the walk in closet but it wouldn’t open. “Come out Alisha…I know it’s you”. The Wife screamed this for what seemed to be minutes. Alisha was the young co-worker her husband had been on trips with. Finally a voice comes from behind the door, Debbie it’s me I’m so sorry”. Was that her sister’s voice?! She was only 20. It was her voice! “Deb I’m so sorry”.
She turned on her heels and brought a fist from below her right hip directly to the husband’s mouth. While down she added a kick to the family jewels as cheap as they were. She missed with the kick and left a bruise in the thigh.
The next day he filed a police report and asked for a civil protection order right after calling his lawyer. He swore in the affidavit that he was frightened of her and had pictures of his bloody lip to prove it. The form, passed out freely at the domestic relations court, doesn’t ask if you deserved a punch to your pie-hole. And for good measure he threw in the claim that the little girl was nearby when Mom went off her rocker and started hitting him. It was an ex parte order meaning only one side was present. The Court gave him sole occupancy of the house and ordered that the Mother could only see the daughter under supervision. She had to stay at least 500 feet away from the Husband.
She got a lawyer. It was a small town and he advised her to just let this go for now and consent to the Protection Order. It was her biggest mistake. A judge never got to hear that there was a very unique reason for the punch. By the book, it is assault. But some lawyers advise their client’s to shamelessly get a Protection Order. It makes the other side fight uphill especially if throwing a criminal charge on top of it. I view it like negotiating with a terrorist…don’t. Judges, Magistrates and juries are like the rest us. They can see a railroad job and have the ability to say that no protection order is necessary, unless the husband plans on bedding the sister in the future.
It was a disaster after that. The husband had plenty of money to pay lawyers to delay and invite the court to become part of the parenting team. After a few months of not seeing her child, drugs helped numb the pain. It made her mind wander from trying to figure out how she became the guilty one. He also used drugs, but managed to get the court to order a drug test that she failed. No one ever suggested the daughter was anything but loved and well cared for, but mention drugs and she could not possibly be a good mother. So she had to continue to take drug screens to prove she was clean. He did not have to provide a drop of urine. Wear a suit and you can go far.
For two and one-half years it went on this way. She could only see her daughter under the watchful eye of a Hope House worker. In a matter of weeks she went from homeroom mom to the type of mom you see on a prison visit.
She is back with her daughter now almost half-time. It cost her over thirty thousand dollars to get to a place of almost normal. I am not sure there is a moral of this story. As a lawyer , I would tell my client never consent to anything that keeps you away from your children. As a human being I’m not sure I could say “don’t punch your husband in the mouth if you find him in your bed with your little sister”.
(As always my clients consent to my blogs because it might help someone else and the names are changed to protect the innocent)