This site tracks developments in international family law from Richard Crouch and John Crouch of Crouch & Crouch in Arlington, Virginia. Our international practice has grown naturally from our location in our native Arlington, where our clients include many military, diplomatic and immigrant families, international organization employees, IT professionals, etc. This blog's purpose is to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. These postings do not provide a comprehensive description of the law. In fact, they will surely contain statements that were true at the time but have become less valid as the law continues to develop.
American civil and family courts have dealt with foreign law routinely and undramatically for centuries, including Sharia. People have always had lawsuits about actions and situations that happen in other countries or across several borders, and so the law has long-established rules for taking foreign laws into account. Including laws that are Sharia-based or even Sharia itself, as applied in some countries. There's even a US Supreme Court case about how to apply such principles to an incident in Antarctica.*[see below]
"The true story of Sharia in American courts is not one of a plot for imminent takeover but rather another part of the tale of globalization. Marriages, divorces, corporations and commercial transactions are global, meaning that US courts must regularly interpret and apply foreign law. Islamic law has been considered by American courts in everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, and the awarding of damages in commercial disputes and negligence matters."
But Abed is absolutely right that these proposals would mostly screw up the ways the courts do justice for international families and international business. Not just when it comes to Islamic law, but all foreign law.
The Federal Tort Claims Act, which lets one sue the United States, as an exception to its otherwise total sovereign immunity, says “Use the local law of the community.” ‘Tis right we’re bound by Rome’s law when in Rome: conditions differ from those we knew at home.
. . .
STEVENS, J., DISSENTING: . . .
Anyhow, if Antarctica has no law, we apply the laws of California. For the Act says on the high seas, or in space, the law to be applied is from the place the plaintiff lives. . . .
To lawful men, there is no lawless place. Migrants bear the laws of their own race. Indeed, Americans in Antarctica are under U.S. tax and criminal law. So even where there is no sovereignty, you wouldn’t have the right to murder me. The international community embraces all creation, even sovereignless places, and even in unseen chasms that never thaw, its spirit says there abides a rule of law.
"A Saudi judge sided with a pregnant woman’s uncles and divorced the wife from her husband on the grounds she is of superior origin. Maha Al Tamimi, in her 8th month pregnancy ... said her uncles filed a law suit to divorce her from her husband, a soldier stationed in South Saudi Arabia near the border with Yemen, on the grounds she married him without her father’s approval.
"But Tamimi said she had her elder brother’s consent for marriage and that her father has a second wife and is not living with them. ... Tamimi said she had taken her father to court long time ago because he had rejected all her suitors and mistreated her.
Everything in this Wall Street Journal article, posted on LinkedIn by the consummate family lawyer, Betty Sandler (Vanity Plate: "SCOURGE"), matches what my father Richard Crouch and I have observed in our combined 60+ years of practicing international family law. Over half our cases are international in some substantial way.
Expat scholar Yvonne McNulty, an associate faculty member at SIM University in Singapore, found in her study, “Till Stress Do Us Part: The Causes and Consequences of Expatriate Divorce,” to be published in June in the Journal of Global Mobility, that expat life brings its own form of marriage stressors. Dr. McNulty studied 38 expat divorces in 27 countries and found a range of issues: trailing spouses who may find themselves with a loss of identity after a move; a lack of a longtime community that might bolster a struggling couple; and long work hours mixed in with extensive travel that pulls couples apart."... When couples do break up the results are far more serious, she says, with international battles over child custody, confusion over which country has jurisdiction over the divorce, and huge relocation costs for companies that have sent entire families overseas.
One element that can intensify problems, she says, is the expat community itself, which can “become almost like a toxic influence on a marriage.”
“It’s like a groupthink attitude. If one or two individuals are engaging in extramarital affairs the men tend to say, that gives me permission to do it.” Some common expat destinations, particularly Asia and the Middle East, are “notorious for changing a marriage,” Dr. McNulty says.
Another problem is social isolation. Most expat couples are far removed from any kind of setting – family, friends, communities – that might have bolstered a struggling marriage. Dr. McNulty says that in her research, “one of the strongest things that came out was the lack of role models or mentors” for troubled marriages. Many of the women she surveyed said to her, “If we had been home, my parents, his parents, his brother would have pulled him up by the scruff of his neck and said, ‘What are you doing?’”
In addition, the expat community is not always willing to get involved. “When you’ve got marital problems, the other expat wives think you have a disease, and they shun you,” Dr. McNulty says.
The 7-to-6 decision implemented Korea's 1965 divorce law, which allows divorce on grounds of irreconcilable differences, irretrievable breakdown of a marriage, or others reasons that undermine a union, according to the Korea Times article. The law, as interpreted by the courts, does not allow a husband to file for a divorce on those grounds when the real reason for the breakdown is actually his adultery and desertion. He left his wife, with whom he had three children, in 2000 and began living with another woman, having one child with her.
The court was concerned that current law provides no way for the wife and children to get any support if a divorce is granted.
In most cases in South Korea, as in most divorces before U.S. states allowed unilateral divorce, the parties make a mutual agreement which gives both of them a livable financial arrangement and allows the divorce to happen regardless of fault.
"More than 77 percent of the couples here divorce after assuming some portion of blame, which is in effect no different from no-fault divorce recognized in other countries," the court's majority said.
The case has caused great controversy in Korea. Those wishing to allow unilateral no-fault divorce cite a "right to freedom of choice and to the pursuit of happiness" and say marriage is a private, personal relationship. Supporters of current divorce law cite the financial distress divorce imposes on women and children. They say changing the law would erode personal responsibility and mutual trust in society. They also say that under the country's civil law system, marriage is a legal contract requiring effort, good faith and contribution from both parties, just like other contracts.
There is nothing in Western countries' laws that discriminates against Muslim marriages, but many immigrant wives -- 90%, says a new study -- are legally unmarried because there was no civil license or celebration, or because they are second, third or fourth wives. And that non-recognition is very convenient for the husbands, because as legal strangers the wives have no occupancy, property or maintenance rights under most Western countries' laws. Often, the women know nothing about this until it is too late. But does this mean that there should be less, or more, recognition of, and legal accomodation to, these marriages and Shari'a generally?
The ABA Journal says, "The measure bars courts, arbitrators, administrative agencies and other adjudicators from applying or enforcing foreign law 'if doing so would violate any state law or any right guaranteed by the Constitution of this state or of the United States.' ... [and] 'No Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.' That language could mean choice-of-law contractual provisions are invalid in Alabama courts ..."
However, there are other situations where foreign law could otherwise apply, such as in a suit about a tort committed in a foreign country. And part of the impetus for such legislation is the prospect of foreign countries' notions of human rights being used to interpret the U.S. Constitution to reverse state laws or court judgments.
There are other unintended consequences that could flow from these efforts, discussed in my earlier article, "State legislation would bar foreign & religious law from American courts". Unlike most of the legislation discussed there, this latest Alabama amendment does not affect religious law, at least not expressly. Of course, especially in family law, some foreign law is religious law.