Friday, November 26, 2010

So, you are getting married. Congratulations, and get yourself a prenuptial.

While marriage has been talked about very positively in the Quran, divorce has not only been permitted, but its technical and legal aspects have been discussed in more details than marriage itself, and that makes sense: it is a conflict situation, and that deserved more elaboration. 
But divorce has been look down upon in most Muslim communities - though not by Islam as a religion - as an irresponsible act showing a weak character that prefers personal convenience over the hard work needed to establish a healthy family.
That negative attitude towards divorce unnecessarily deprived many Muslims of a legitimate, and frequently needed, social procedure. Divorce rates thus have been exceptionally low (as low as 2-3%) in the Muslim world for centuries, reflecting the social pressure against divorce rather than how happy marriages are.
But that low divorce rate is changing rapidly. American Muslim divorce rates are very close if not actually equal to divorce rates among non-Muslims. That increase by 10-15 fold in the span of one generation has its own problems.
Divorce was discussed and organized in the Quran 1500 years ago not as an evil thing, but rather as an occasional social necessity.  It was thus to be discussed and regulated. But the focus in the Quran was on:
a) preventing hasty and abusive actions the husband,
b) explicitly mandating mediation and counselling before divorce is finalized,
c) establishing the children's financial rights,
d) providing some security to women against instantaneous eviction from the family residence at a time when husbands were exclusively responsible for providing family residence,
e) the Quran also established the right of women to divorce themselves at will using a clear and simple procedure known as khol'a, a definite revolutionary social concept that most Muslims are not even aware of.
The Quran, however has not provided any rules for asset sharing, or guidelines for financial settlement between spouses.  The contemporary rules were that the wife, as much as the husband, was entitled to trade, to buy and sell, and to have full financial control over her own wealth, inheritance and business.  When divorced, each spouse kept their own property and assets. Also, issues like children custody, alimony, etc, were not discussed much and the prevalent common law was followed.  
Over 2-3 centuries after the Prophet's death more 'common law rules' (or 'عرف'  in Arabic), that did not contradict obvious Quranic principles, crept into Islamic law, which by that time became known as shari'a.  These new laws and rules reflected mostly the common law of those times as understood by different scholars, almost exclusively men.  Those also were the times women's rights took a significant step backward, from the earlier and enlightened phase of Islamic thought process at the time of the Prophet and early civic leaders after him.
At this point it is important to highlight that while common law has frequently been adopted by Islamic legal system, it should never be considered integral to the religion of Islam. Islamic religious rules (Quranic and 'mutawater' Prophetic teachings) are immutable, while common law accepted by different societies in different eras should be freely changed if the circumstance under which they were accepted change.
Over the last century, most of the Muslim countries amended their Family Law to include more rights for women that were not traditionally included in early jurisprudence, such as alimony and mother-favoring custody of children, in some cases granting near exclusive rights to the mothers.  In Egypt, for example, mothers have full custody over boys until age 16, and over the daughters until they reach the age of majority or get married.
These modern changes in family law illustrate that those laws are mostly of civic nature, not a religious one.  Despite these facts, many first generation American-Muslims think of those laws as 'Islamic laws'.  And that is where the problems is.
Having been involved at different levels in many divorce cases among friends over the last few years, I have made several observations.  The most alarming of which is that most of the individuals in those cases have no clue what is mentioned in the Quran about divorce.  That is a shameful thing truly as it all can be contained in 3-4 medium size pages. 
In many of those divorce cases, an argument was frequently made that ' … as Muslims, we are obliged to follow Islamic law when it comes to divorce'.  Advocates of that opinion usually refer - unknowingly - to the 'civic' law that ruled over them or over their parents when they lived in the old motherland.  Many of those laws were not mentioned in the Quran, and are not necessarily followed by any other Muslim country, since each country had it own set of unique family laws. Therefore, those old homeland rules are NOT Islamic.
Another common observation was that the apparently 'wise and pious' suggestion to follow Islamic law was usually made by the party that was most likely to lose financially if the 'American law' is applied.  In other words, advocating the so-called Islamic law for divorce was frequently a gimmick to keep as much money as possible in the hands of the wealthier spouse, be it the husband or the wife.
But considering the high cost of the legal system in the US, the demand (or suggestion) to follow Islamic law does seem to have merits, if it were not for ignorance and possibly the ill-intentions that were behind it.  
And to complicate matters more, there is usually some social pressure within the community to follow 'Islamic law' even though most people do not know what that precisely meant.  If one spouse preferred follow American divorce and family laws they were sometimes made to feel as if they were rejecting of Islam.
My advice for whoever asked for my opinion was always the same: "Get a good lawyer, never negotiated without your lawyer being informed of what you are doing, and avoid court if you can, but do not yield under the assumption that it is 'Haram' or 'Islamically unethical' to settle your divorce in court."
As more women and men of our Muslim-American community get divorced, we need better ways  to educate ourselves regarding the rules of divorce in Islam and the many aspects it does not handle.  We also need to know that marriage in Islam is a contract – a real contract, in which ANY condition can be stipulated.  The spectrum of those stipulations can surprise most of us: from granting women right to divorce on demand, to financial and custody stipulations and all the way to stipulating, that the family must have hired help, nannies, cooks, or in which city to live, etc.
I would like marriage within the Muslim community to take full advantage of the flexibility of Islamic marriage contract by discussing some issues that can save the families a lot of trouble in the future, when one out of every two or three marriages ends in divorce.  The most important item should be: which legal system the couple should follow if divorce process is initiated.  And if they choose 'Islamic law' they need to spell out what that means.  And if they have no clear idea what Islamic law of divorce means, then they should explicitly state the American legal system would be the reference, so it does not as a surprise to any spouse if that ends up being the case.
It is difficult for a couple busy planning their wedding party to consider prenuptial. And that is understandable.  But if our community is wise, it should try to minimize or avoid the acrimony that comes with hostile divorces, and avoid the drainage of resources wasted on lawyers that could otherwise go to secure better future for the divorcees and their children.
Our community is still young in this country.  Many individuals are in the middle of an identity transition, from a Syrian-Muslim, Pakistani-Muslim, Bosnian-Muslim or some other 'hyphenated Muslim' to American-Muslim.  Most of us have not put much thought into what these terms mean. 
That is where most of the friction comes from: unclear terms, and an identity-in-transition.
In my opinion, it could be a great service to our community if the marriage certificates issued by Islamic institutions in the US for American Muslim couples getting married is expanded from the simple contract it is now, to a more developed format that offers a collection of simple choices that may save many couples a lot of heartache and money in the future. That 'expanded' marriage contract could function as a 'default' prenuptial agreement that provides the couple with some idea how things could be handled when married life does hits some road bumps.
If you were to have a prenuptial agreement, as an American Muslim, what would you want to see in it?


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