Sharia law ban and Muslim wives

[sandinista! 1,816]

Sharia law ban and Muslim wives

Muslim women in Kansas are hit by the Sharia law ban, as they are unable to claim compensation from their estranged men.

Last Modified: 16 Feb 2013 15:18

On July 1, 2012, the application of foreign or Sharia law was effectively banned in the State of Kansas [AP]

When Kansas State Senator Susan Wagle voted for Senate Bill 79 that would ban Sharia law in Kansas, she said that a vote in favour of the legislation was "a vote to protect women". "In this great country of ours, and in the state of Kansas," Wagle said, "women have equal rights."

Her words echoed the sentiments of many of the 33 Senators in Kansas, in March 2012, who voted in support of the law. The Bill passed and was signed into law by the Governor of Kansas. On July 1, 2012, the application of foreign or Sharia law was effectively banned in the State of Kansas.

A mere month later, in August 2012, a court in Johnson City, Kansas, faced the consequences of the ban whose intent was to "preclude the courts from applying foreign law, legal codes or systems that violate the public policy of our state or federal constitutions". It has been widely viewed as precluding courts from applying Sharia law.

Before the Johnson City District Court came the Soleimanis, both from Iran and now divorcing in Kansas. The wife, Elham Soleimani asked the court to enforce their Islamic marriage contract which stipulated a payment of $677,000 from the husband to the wife in case of divorce.

The facts of the case were a saga of love, betrayal and abuse. Faramarz Soleimani had left Iran decades ago, fleeing from the draconian changes brought on by the Islamic Revolution. With him, was his wife Zohra Bamani.

The two arrived in Kansas and opened a restaurant, obtaining amnesty in their new country so that they would not have to return to a much changed Iran. They stayed for 30 years, until Soleimani, now nearly 60 years old, got on the internet and found love again.

His new flame was Elham Moghadem, 24 years younger, living in Iran. Rapt in passion, Soleimani divorced Zohra Bamani and arrived in Iran to marry again. His second marriage took place on July 19, 2009, two years before the Sharia ban and long before either the new husband or the new wife could predict just how bad things would become between them.

In the first heady months of romance, the newly married Elham and Faramarz Soleimani revelled in wedded bliss. To prove the eternity of his devotion to his new partner, Soleimani had her name tattooed on his chest. To prove she was a loving wife, Elham tried her best to get used to Kansas.

The divorce case of the Soleimanis

Based on the story told by court records, the end came hard and fast and with an avalanche of court proceedings. On June 1, 2011, less than two years after her marriage to Soleimani - the man she had found on the internet and followed across the world - Elham filed for divorce in the courthouse in Johnson City, Kansas.

Surrounding the divorce petition were allegations and pleadings of domestic violence, assault and battery, rape and even a marital tort case for spousal abuse.

By the time she filed for divorce, Elham, the once beloved bride, was alone, destitute, living in a domestic abuse shelter and looking to American courts to help her after her marriage became a harrowing ordeal.

Her account was one of betrayal, of having been wheedled into marriage by a man who boasted about his great wealth and promised her a fairy tale life in luxurious America. What she had found instead, like so many immigrant women arriving with little known and hardly seen husbands, was a domineering and abusive old man who wished to keep her in servitude.

So, betrayed Elham relied and asked for relief from the Johnson City court on the one thing she felt was in her favour: the Islamic marriage contract signed between the parties - which delineated a mahr (dowry) - during their wedding in Iran.

Based on its stipulations, Elham Soleimani, the wife, could demand the payment of 1,354 gold coins (valued at $677,000) from her estranged husband in the event of divorce. With no other recourse and little prospect of help under the rules of marital property division under Kansas law, she asked the court to enforce the agreement and make her husband pay up.

She was about to be disappointed again. On August 28, 2012, nearly two months after Kansas' much touted Sharia ban went into effect, the District Court in Johnson County refused to enforce the agreement between the parties and grant Elham Soleimani the money she believed was due from her husband under the terms of Islamic marriage contract.

One of the most significant reasons offered by the court for its refusal to do so was the religious nature of the agreement, the precise sort they felt the Kansas Legislature had wanted to ban.

Enforcing the agreement, the court concluded, would "abdicate the judiciary's role to protect such fundamental rights, a concern that was articulated in Senate Bill No 79". If they enforced the mahr agreement and force Soleimani to pay it, the court felt, they would be violating the ban on Sharia law in Kansas.

Here is where the court in Johnson City, Kansas, went wrong. While it is indeed true that separation of Church and State provisions under the Establishment Clause of the First Amendment of the United States prevents US Courts from interpreting religious texts, the court in Kansas disregarded longstanding precedent that insists that when the stipulations of a contract are clear, its religious origins do not preclude enforcement by a US Court.

One determinative case in this regard was Avitzur v Avitzur (1983), decided in the Second District of New York, where a Jewish woman petitioned the court to force her ex-husband to obtain a religious divorce decree as they had agreed in a contract prior to their marriage.

In Avitzur, the Supreme Court of New York decided that forcing the husband, Boaz Avitzur to obtain a Jewish divorce as per the agreement between the parties was not a violation of the separation of Church and State, and that the court could enforce the agreement despite its religious origins and content.

Foreign law not banned in New York

Unlike Kansas, the State of New York has not banned Sharia or foreign law and so it can safely be concluded that the same case decided in that state would have yielded a markedly different result.

That is indeed exactly what happened in SB v WA - decided in New York in August 2012 - after the decision was issued by the court in Johnson City, Kansas. In that case, a Muslim-American woman married to an Egyptian immigrant, who subsequently divorced in the United Arab Emirates, was able to get a mahr payment of $250,000 enforced by the court.

The court decided in favour of the wife even though the agreement, an Islamic marriage contract, was entered in a foreign country and had just as much of a theological origin as the case in Kansas.

The issue at hand in both cases, fresh after the onslaught of Sharia ban that roared through the US, is not the issue of separation of Church and State - which has a long history of American jurisprudence attached to it - but rather the issue of the status of women, specifically Muslim women under Sharia law and the role of American courts in relation to it.

The case in Kansas reveals that imposing a blanket ban that refuses to allow for the consideration of the specifics of a case or the particularities of the position of an individual Muslim female litigant like Elham Soleimani, does more harm than good.

Where no ban would have resulted in an immigrant woman being able to avail of the resources that would allow her to begin a new life in the US and rehabilitate herself from an abusive relationship, a Sharia ban enabled the opposite, leaving her with nothing and allowing her more established husband to discard her with few consequences.

While all of these facts were argued in the feverish seasons in which the Kansas Legislature along with those in Oklahoma, Tennessee, Louisiana and others debated Sharia bans, the case of the Soleimanis lays in actual terms and actual lives the reduction of their effect and the dubiousness of their purpose.

If protection of women was indeed the issue before the Kansas court, or if the facts of the case were such that the same marriage contract would provide the wife with less than what would be available to her under the marital property division statutes of American law, then it would have made perfect feminist and jurisprudential sense to strike down the agreement under the Equal Protection Clause that provides for just such situations.

This was however, not the case. Under the provisions of stipulated mahr under her Islamic marriage contract, Elham Soleimani was entitled to more than she would have received under American laws of property division that would be governed the length of the marriage and the property acquired during the two years.

But in Kansas, with its Sharia ban in effect, Elham Soleimani lost out, not because she was a woman, but because the basis on which she argued her case for a future and for empowerment was Islamic.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

Follow her on Twitter: @RafiaZakaria

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

[The Nature Boy 4,224]

Sharia law ban and Muslim wives

Muslim women in Kansas are hit by the Sharia law ban, as they are unable to claim compensation from their estranged men.

Last Modified: 16 Feb 2013 15:18

On July 1, 2012, the application of foreign or Sharia law was effectively banned in the State of Kansas [AP]

When Kansas State Senator Susan Wagle voted for Senate Bill 79 that would ban Sharia law in Kansas, she said that a vote in favour of the legislation was "a vote to protect women". "In this great country of ours, and in the state of Kansas," Wagle said, "women have equal rights."

Her words echoed the sentiments of many of the 33 Senators in Kansas, in March 2012, who voted in support of the law. The Bill passed and was signed into law by the Governor of Kansas. On July 1, 2012, the application of foreign or Sharia law was effectively banned in the State of Kansas.

A mere month later, in August 2012, a court in Johnson City, Kansas, faced the consequences of the ban whose intent was to "preclude the courts from applying foreign law, legal codes or systems that violate the public policy of our state or federal constitutions". It has been widely viewed as precluding courts from applying Sharia law.

Before the Johnson City District Court came the Soleimanis, both from Iran and now divorcing in Kansas. The wife, Elham Soleimani asked the court to enforce their Islamic marriage contract which stipulated a payment of $677,000 from the husband to the wife in case of divorce.

The facts of the case were a saga of love, betrayal and abuse. Faramarz Soleimani had left Iran decades ago, fleeing from the draconian changes brought on by the Islamic Revolution. With him, was his wife Zohra Bamani.

The two arrived in Kansas and opened a restaurant, obtaining amnesty in their new country so that they would not have to return to a much changed Iran. They stayed for 30 years, until Soleimani, now nearly 60 years old, got on the internet and found love again.

His new flame was Elham Moghadem, 24 years younger, living in Iran. Rapt in passion, Soleimani divorced Zohra Bamani and arrived in Iran to marry again. His second marriage took place on July 19, 2009, two years before the Sharia ban and long before either the new husband or the new wife could predict just how bad things would become between them.

In the first heady months of romance, the newly married Elham and Faramarz Soleimani revelled in wedded bliss. To prove the eternity of his devotion to his new partner, Soleimani had her name tattooed on his chest. To prove she was a loving wife, Elham tried her best to get used to Kansas.

The divorce case of the Soleimanis

Based on the story told by court records, the end came hard and fast and with an avalanche of court proceedings. On June 1, 2011, less than two years after her marriage to Soleimani - the man she had found on the internet and followed across the world - Elham filed for divorce in the courthouse in Johnson City, Kansas.

Surrounding the divorce petition were allegations and pleadings of domestic violence, assault and battery, rape and even a marital tort case for spousal abuse.

By the time she filed for divorce, Elham, the once beloved bride, was alone, destitute, living in a domestic abuse shelter and looking to American courts to help her after her marriage became a harrowing ordeal.

Her account was one of betrayal, of having been wheedled into marriage by a man who boasted about his great wealth and promised her a fairy tale life in luxurious America. What she had found instead, like so many immigrant women arriving with little known and hardly seen husbands, was a domineering and abusive old man who wished to keep her in servitude.

So, betrayed Elham relied and asked for relief from the Johnson City court on the one thing she felt was in her favour: the Islamic marriage contract signed between the parties - which delineated a mahr (dowry) - during their wedding in Iran.

Based on its stipulations, Elham Soleimani, the wife, could demand the payment of 1,354 gold coins (valued at $677,000) from her estranged husband in the event of divorce. With no other recourse and little prospect of help under the rules of marital property division under Kansas law, she asked the court to enforce the agreement and make her husband pay up.

She was about to be disappointed again. On August 28, 2012, nearly two months after Kansas' much touted Sharia ban went into effect, the District Court in Johnson County refused to enforce the agreement between the parties and grant Elham Soleimani the money she believed was due from her husband under the terms of Islamic marriage contract.

One of the most significant reasons offered by the court for its refusal to do so was the religious nature of the agreement, the precise sort they felt the Kansas Legislature had wanted to ban.

Enforcing the agreement, the court concluded, would "abdicate the judiciary's role to protect such fundamental rights, a concern that was articulated in Senate Bill No 79". If they enforced the mahr agreement and force Soleimani to pay it, the court felt, they would be violating the ban on Sharia law in Kansas.

Here is where the court in Johnson City, Kansas, went wrong. While it is indeed true that separation of Church and State provisions under the Establishment Clause of the First Amendment of the United States prevents US Courts from interpreting religious texts, the court in Kansas disregarded longstanding precedent that insists that when the stipulations of a contract are clear, its religious origins do not preclude enforcement by a US Court.

One determinative case in this regard was Avitzur v Avitzur (1983), decided in the Second District of New York, where a Jewish woman petitioned the court to force her ex-husband to obtain a religious divorce decree as they had agreed in a contract prior to their marriage.

In Avitzur, the Supreme Court of New York decided that forcing the husband, Boaz Avitzur to obtain a Jewish divorce as per the agreement between the parties was not a violation of the separation of Church and State, and that the court could enforce the agreement despite its religious origins and content.

Foreign law not banned in New York

Unlike Kansas, the State of New York has not banned Sharia or foreign law and so it can safely be concluded that the same case decided in that state would have yielded a markedly different result.

That is indeed exactly what happened in SB v WA - decided in New York in August 2012 - after the decision was issued by the court in Johnson City, Kansas. In that case, a Muslim-American woman married to an Egyptian immigrant, who subsequently divorced in the United Arab Emirates, was able to get a mahr payment of $250,000 enforced by the court.

The court decided in favour of the wife even though the agreement, an Islamic marriage contract, was entered in a foreign country and had just as much of a theological origin as the case in Kansas.

The issue at hand in both cases, fresh after the onslaught of Sharia ban that roared through the US, is not the issue of separation of Church and State - which has a long history of American jurisprudence attached to it - but rather the issue of the status of women, specifically Muslim women under Sharia law and the role of American courts in relation to it.

The case in Kansas reveals that imposing a blanket ban that refuses to allow for the consideration of the specifics of a case or the particularities of the position of an individual Muslim female litigant like Elham Soleimani, does more harm than good.

Where no ban would have resulted in an immigrant woman being able to avail of the resources that would allow her to begin a new life in the US and rehabilitate herself from an abusive relationship, a Sharia ban enabled the opposite, leaving her with nothing and allowing her more established husband to discard her with few consequences.

While all of these facts were argued in the feverish seasons in which the Kansas Legislature along with those in Oklahoma, Tennessee, Louisiana and others debated Sharia bans, the case of the Soleimanis lays in actual terms and actual lives the reduction of their effect and the dubiousness of their purpose.

If protection of women was indeed the issue before the Kansas court, or if the facts of the case were such that the same marriage contract would provide the wife with less than what would be available to her under the marital property division statutes of American law, then it would have made perfect feminist and jurisprudential sense to strike down the agreement under the Equal Protection Clause that provides for just such situations.

This was however, not the case. Under the provisions of stipulated mahr under her Islamic marriage contract, Elham Soleimani was entitled to more than she would have received under American laws of property division that would be governed the length of the marriage and the property acquired during the two years.

But in Kansas, with its Sharia ban in effect, Elham Soleimani lost out, not because she was a woman, but because the basis on which she argued her case for a future and for empowerment was Islamic.

Rafia Zakaria is on the board of directors of Amnesty International. She is a lawyer and a Political Science PhD candidate at Indiana University.

Follow her on Twitter: @RafiaZakaria

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

Good for Kansas .. So we are supposed to alter the law to suit Islam. The law is the law.

[sandinista! 1,816]

Well there's one person we know the article was too complicated for.

[OnMyWayID 1,489]

Imagine if he was worth a few billion dollars and trying to get away with paying 1,354 gold coins... Then deciding to base a divorce settlement on the stated document would be a dumb idea.

Nothing is stopping her from extracting money from the guy, she just can't use the religious document to dictate the amount. The amount will be based on the circumstances of the marriage and the ex-spouses ability to pay.

Edited February 21, 2013 by OnMyWayID

[^_^ 5,021]

If the religious contract isn't enforceable because it's based on Sharia law, then why can't the marriage just be annulled?

[sandinista! 1,816]

The onus is on women to ask for whatever amount they want-  whatever she wants and he agrees to. If he won't pay/sign it, she can just marry someone else who will give her what she wants. When writing the contract, nothing bars her from asking for x percentage of all future millions or billions made by their husband if that happens. The author also clearly states that "if the facts of the case were such that the same marriage contract would provide the wife with less than what would be available to her under the marital property division statutes of American law, then it would have made perfect feminist and jurisprudential sense to strike down the agreement under the Equal Protection Clause that provides for just such situations." That didn't happen here.

While it is true that she can pursue other means to extract compensation for her pain and suffering, per the author this hasn't gotten her very far. She's destitute. The rules of Kansas marital property division leave her with far, far less than she was contractually guaranteed. Essentially, this ban that was concocted in the state of Kansas for the purported purpose of championing women's rights has completely hobbled her efforts to receive the financial compensation her and her former husband signed a contract for. 

That's not cool. 

In other states, this is not an issue. Mahr agreed to in Islamic contracts, along with other types of religious contracts, have been upheld in other states. The author laid out the details about precedent for contracts of religious origin being upheld by US courts, that was established 30 years ago in the case of a Jewish couple. 

[quote name=' timestamp='1361423089' post='5993710]

If the religious contract isn't enforceable because it's based on Sharia law, then why can't the marriage just be annulled?

Does an annulment put the money she's contractually owed in her hands? Because that's the issue.

[ready4ONE 5,400]

How much did his first wife get after a much longer term marriage and building a business in Kansas together? I will guess significantly more under Kansas law.

A two year marriage is extremely short so the 2nd wife would receive far less. Perhaps she should pursue her case in Iran for breach of contract?

[sandinista! 1,816]

Unless both parties signed a contract stipulating that duration of the marriage doesn't matter. Especially when the marriage was cut so short due to abuse. There's a great precedent-treat your wife like ###### in Kansas, walk away paying chump change because she didn't stick it out with you longer.

Platitudes about pursuing anything in an Iranian court that has no jurisdiction over her abuser due to the fact that he lives in the US are SO helpful though.

[sara..... 371]

Unless that state has a law against it they should have treated it as a prenuptial agreement

just my opinion

sara

[^_^ 5,021]

The rules of Kansas marital property division leave her with far, far less than she was contractually guaranteed.

677K is an absurd amount of money for a woman who was only married to him for two years.

I don't much care for these bans on Sharia law (they have unintended consequences, clearly) but there is absolutely no way she should be allowed to get away with murder here. 677K? GTFO!

[ready4ONE 5,400]

I would say Sarah hit it on the head and this gal argued her case wrong before the court. She or her attorney argued that she should get the money based on Sharia law and the court felt that it couldn't under the Kansas law. Arguing that the contract was a prenuptial agreementmight have been successful but the fact is the story gives no indication that the man in question even possessed the kind of money that the gold digger was seeking.

Most courts do a thorough wallet biopsy on the man and the article does appear to avoid stating what this woman actually received.

[Caryh 5,206]

I so often see where other countries do not do things the way we do them in the USA, and yes with laws to, and we are told to respect and accept it, its their country. So where is the same respect and acceptance to American law? This woman knew she was coming to America, this woman knew a different country would have different laws.

I'm sorry, but I can't see anything wrong with what the court did. States that do ignore our own laws to accept the laws of other countries in other countries are just wrong in my view. More states should be passing a law like Kansas has to keep out consideration of foreign laws in the USA. She was moving to the USA, she was getting the advantages of being in the USA and its laws, but then wants to cherry pick the most helpful parts of her home countries laws. One simple example is she is making claims of domestic abuse in the home, this is certainly not an option she could use in Iran.

Quote from the wikipedia article on Domestic violence in Iran. http://en.wikipedia.org/wiki/Domestic_violence_in_Iran

"In Iran the nature of domestic violence is complicated by both a national culture and authoritative state that support control, oppression and violence against women. "The government does so by promoting fundamentalist ideas of women as properties of men. It does so by setting up an unequal legal system and not punishing assault even when it has resulted in severe injury or at times even death. The conversation of domestic violence then cannot be simply domestic but begins to take the shape of a systematic violence, fueled by tradition, ignited by religion, encouraged by the dominant authoritarian state, and empowered by poverty and illiteracy."[3]

At the heart of the issue is the belief, rooted in common law, that men are responsible for their household affairs, especially treatment of family members, and should not be subject to intervention by the government.[3]

"Women should sacrifice themselves and tolerate" is an old Iranian saying that represents how most women manage domestic abuse.[4]"

"Battered women's shelters

The government is opposed to construction of battered women's shelters.[4]

Divorce

There is a significant disparity between treatment of men and women in marriage and divorce.

Men may marry up to 4 girls and woman. They may divorce a woman when they choose.

Woman. It is very difficult for girls and women to divorce men. Often they are forced to stay in abusive marriages. They may lose custody of their children that are older than age 7 to her husband and father-in-law. Since a woman's testimony is only worth half of a man's testimony, it is very difficult to prove domestic abuse.[3]

Economically, divorce is rarely an option for Iranian women because they are financially dependent upon their husbands. With divorce, the father obtains custody of the children and can prevent the woman from seeing her children, a paradigm that prevents most women from talking to their family about abuse, and extremely unlikely to pursue any remedy with the government.[4]"

[Darnell 8,478]

That sucks, really.

The court could have chosen to grandfather her case, applying the rules in force (or no rules barring the enforcement of sharia law) based on the filing date of June 1, 2011.

They didn't do that.

Why? What happened with her attorney? That fella should have asked for, and gotten, the case grandfathered.

Also , the marriage document made in IRAN should be enforceable here - it's not really the concept of sharia law, but the concept of trans-border international marriage law. If the court, instead, honored that marriage document, there'd be no fuss about it.

It's disengenuous(sp ? ) to call it sharia law, even with the marriage docuement certified in Iran.

[sandinista! 1,816]

Agreed Darnell.

The contract signed by this couple was signed well before the ban in Kansas passed. There was no disregard or cherry picking of American laws there. All kinds of foreign laws and contracts are considered and upheld in American courts all the time, and rightfully so. People immigrate to the US on the basis of marriage that took place in foreign countries with foreign laws and stipulations in regards to marriage. Obfuscating nonsense about DV in Iran has nothing to do with anything here. "Ignoring American law in favor of foreign law" is a red herring.

...what the anti-Sharia movement ignores is that, whether a US judge considers Sharia as a foreign law, as in the Exxon case, or as a way to better understand a dispute between parties, as in Odatalla, the extent of its applicability is always dictated by American law.

http://www.thenation.com/article/168378/true-story-sharia-american-courts#

There is no magic wand anyone could have waved here to turn an Islamic marriage contract into anything other than an Islamic marriage contract. Calling it a pre-nuptial and arguing for it based on that name wouldn't change that, and there's no evidence that the Kansas court would ever see it as anything but the religious document it is. I wonder if she had been able to do so, if there would then be outrage at her circumventing the law in Kansas with all of her Muslim-y privilege, and powers of evil Muslim deception, and all that kind of #######. Sounds like potential for a FoxNews heyday there.

It has been very, very informative in this thread though to see an abused woman be referred to as a "gold digger" or "getting away with murder" if she had been successful in getting the contract this man voluntarily signed and agreed to be enforced.

[ready4ONE 5,400]

If a woman barely knows a much older man, agrees to marriage and moves to another country to be with said man, after signing a contract worth close to 700K, she might just be a gold digger. Especially since the alleged honeymoon phase ended so shortly.

Claims of spousal abuse are quite common in divorce cases and while that doesn't automatically make them bogus, I always take them with a grain of salt.

Edited February 21, 2013 by ready4ONE