SHARIAsource

This entry provides a definition and analysis of the term ḥadīth, drawing on works by SHARIAsource Senior Scholar, Joseph Lowry, Associate Professor in the Department of Near Eastern Languages and Civilizations at the University of Pennsylvania.

Turkish legislation regulating mediation, with strict confidentiality requirements for both the parties and the mediator

The case concerned a couple married in the United States according to Islamic law, who had a child custody dispute. The mother, among other things, contended that she should have custody as East Jerusalem, where the husband resided, had become dangerous.  The father filed a claim for custody in the Sharia Court of Israel. The Massachusetts Appeals Court remanded the case to the probate court for further consideration, including the issue of whether it had jurisdiction in the matter, thus not engaging any substantive issues related to Islamic family law.

In this case the Indiana Court of Appeals affirmed the child custody arrangement of the lower court, which had given custody to the mother and visitation rights to the father. The Court of Appeals, in affirming this decision, noted that the father was also a citizen of Egypt, a country not party to the relevant Hague Convention on child custody and abduction, making it likely impossible or very difficult for the mother to see the child, in the event custody is granted to the father, who could then abduct the child to Egypt. The Court, apart from this, did not engage in substantive Egyptian law, nor in any Islamic law.

In this case, the defendant, a Muslim male to whom a 13-year old child was "married," shortly after the marriage, had engaged in non-consensual intercourse with the minor. While pleading guilty to the charge of first degree sexual assault on a child, the defendant nevertheless argued that his Islamic upbringing and background prevented him from fully appreciating the nature of the criminal conduct and he asked that this be considered a mitigating factor. The Court of Appeals of Nebraska rejected the claim, ruling that the defendant's culture and upbringing could not be taken into consideration as factors mitigating his culpability.

In this case, the Muslim defendant pleaded not guilty of murder, arguing that the mens rea (guilty mind) element of the crime was not established. As the defendant was a Muslim immigrant, his "traditional Muslim Indian upbringing," he argued, served as a factor disabling him from properly understanding the way in which his girlfriend, the victim, terminated their relationship and formed the basis for his subsequent actions. The court rejected these arguments, ruling that one's religious background was not sufficient reason to rule that criminal intent was not present.

In this case, the Supreme Court of Delaware, applying Saudi Arabian law to the contract and tort claims, found the Saudi Arabian company liable, all the while noting that the application of Saudi Arabian law, while altering the common law and statutory elements of tort and contractual claims, nevertheless did not infringe on any party's constitutional rights.

In this case, the New Jersey appeals court found that the trial court had erred in revoking a restraint order against the husband who had beaten and raped his wife and had argued that his acts were motivated by and in accord with their religion, thus without any criminal intent. The court of appeals ruled that the argument was baseless and that religious motivation did not serve as a defense against laws of general applicability, regardless of one's religious beliefs.

In this case, the Massachusetts Superior Court denied the defendants' motion to dismiss on forum non conveniens grounds regarding an injury sustained by the British plaintiff that took place in Saudi Arabia. The Court denied the motion, reasoning, among other things, that the biases against non-Muslims and women in Saudi Arabia as well as the lack of certain procedural safeguards rendered that country's law inapplicable to the matter.

In this case, a male Muslim who beat his wife to death and two other women severely, whom he claimed were his other wives, claimed ineffective assistance of counsel. The defendant claimed that since his counsel was unable to locate an Islamic scholar in the region who would substantiate his claim that what he had done was within his rights to "discipline" the women, his right to counsel was not effectively exercised. The court dismissed the argument, ruling that religious beliefs cannot form the basis of a defense against a law of general applicability. In the instant case, the defendant's personal contention that what he had done was in accord with his religion did not serve as a viable defense against the murder and beatings he had committed.

In this case, the Court of Appeals of South Carolina, while remanding the case for further proceedings on the matter of child custody, affirmed the relevant part of the lower court's decision restricting the father's right to visit his home country, Iran. The Court relied on the fact that the husband had threatened the wife of abducting their child, and also the fact that the third country in question was not a signatory to The Hague Convention, making it difficult to remedy the situation in the event abduction occurred.

In this case, deciding on the issue of whether a note was subject to garnishment which entailed deciding on the issue of whether the note was personal or communal property, the Court of Appeals of Arizona first looked into Moroccan Law (which the Court called "Islamic law"), which directed the Court to look at Syrian law applicable to its Christian minority, ruling that the note was separate and personal property and thus subject to garnishment. The application of non-US law (ultimately, Syrian law and not Islamic law) was not objected to by either party.

In this case, the California Court of Appeals reversed the lower court's determination that Iran was the appropriate forum of adjudication according to the doctrine of forum non conveniens, ruling that Iranian law lacked some of the core procedural safeguards accorded to parties under the laws of the United States.

In this case, an Iranian couple had a dispute over child custody and the validity and enforceability of an antenuptial agreement which they had contracted in Iran and according to the laws of Iran. The District Court of Appeal of Florida remanded the case for consideration of issues relating to the agreement, and thus did not engage in an analysis of Iranian law and whether the contract concluded was valid.

In this case, the child custody dispute and the validity of the Iranian antenuptial agreement as well as attorney fees were the three issues of dispute between the spouses. The husband had dropped claims regarding custody and the validity of the Iranian contract, thus rendering the case one solely about attorney fees, with no consideration given to Islamic family and contract law.

In this child custody dispute case between divorced parents who had married pursuant to Islamic law in Morocco, the court granted the defendant's motion and ordered that the child need not be sent back to the United States, as the child was taken abroad lawfully, under the laws of New Jersey and of the United States. In any event, and although the court did not consider Moroccan and Islamic law, the court ruled that international rules of comity would have dictated a similar conclusion.

In this case, the Supreme Court of Nebraska affirmed the judgment of the district court which divorced a couple, who had married under Islamic law, according to Nebraskan state law. The lower court's judgment granting the husband custody rights and the mother liberal visitation rights were also affirmed. The Court did not engage with Islamic law when rendering its decision.

In this case, the El Paso Appeals Court addressed the issue of whether the lower court had denied Dickerson a hearing on Doyle's forum non conveniens motion. The Appeals Court affirmed the lower court, holding that the court could have even declined jurisdiction on the same grounds on its own and that Dickerson was given a fair hearing on the issue.

In this circuit court decision, which affirms the district court's judgment striking down the Oklahoman constitutional amendment to prohibit courts from considering "Sharia Law" in their decisions, the Court rules that the constitutional amendment violates Muslim petitioner's right to free exercise, as the ban imposed prevents him from engaging in many religious acts such as executing a will. The amendment also sends an unmistakable message to the Muslim community that they are considered outsiders - a message that is impermissible under the Federal Constitution. 

In this case, the Texas Court of Appeals affirmed the part of the lower court's decision that found Saudi Arabian law controlling with regards to some of the tort and contract claims, and reversed the part that found Saudi Arabian law controlling with regards to some other contract claims. Accordingly, the Appeals Court found Texas law to be controlling as regards appellants' contact claims against the Al-Rushaid Appellees.

In reversing the lower court's judgment, the Texas Supreme Court ruled that while rules governing enforcement of non-competition agreements in Texas were a matter of public policy, the mere fact that another state's law was materially different from that of Texas did not in and of itself constitute sufficient reason to bar the application of that state's laws on public policy grounds.

In this case, Ahmed S. Amro was found to be in contempt of the court's order asking him to return his infant son to his ex-wife, i.e., the mother. Mr. Amro, among others, argued that his son was with his father in Jordan and because his father was a very respected and sophisticated figure in his country, before trying to enforce the court's order, he had to get the opinions of religious scholars on whether or not to return the child. This argument was rejected by the Supreme Court of Iowa, which found the court's order of contempt to be lawful. 

In this case, the New Jersey Superior Court, affirming the decision of the lower court, noted that the mother's allegations of the probability of her ex-husband's taking and abducting their child, whose custody belonged to the mother, to Lebanon was baseless. While the mother's fears were recognized as being "genuine," the Court nevertheless ruled that fear alone, which remained unsubstantiated, was not sufficient to deprive the non-custodial parent of his right to visitation. 

In this case, the Texas Court of Appeals affirmed the lower court's decision denying plaintiff Ace's special appearance. Considering the contract between the parties as a whole, the Court of Appeals ruled that the phrase "court of competent jurisdiction," as stipulated in the contract, which had been agreed to by both parties, referred to a court with proper subject-matter jurisdiction, thus rendering Texan courts competent to adjudicate the matter.

In this case, the defendant, a Muslim male, had sexually abused and then married one of his stepdaughters. While the Court of Appeals of Virginia did not consider the defendant's claim that it was "normal" in "Muslim culture" for men to marry very young women, it determined that the trial court erred in not granting the reopening of the case in light of the new evidence that could result in the defendant losing custody over the other children.

 This is a bill proposed in the Wisconsin legislature that aims to prohibit courts and other adjudicative bodies from considering foreign law in making decisions, provided that the fundamental right of the person against whom foreign law is being applied is violated. 

On March 6, 2017, President Donald J. Trump, issued a second Executive Order which barred, with certain exceptions, entry to the United States of nationals from predominantly Muslim countries. This order barred nationals from six Muslim-majority countries (the original seven except for Iraq), suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the International Refugee Assistance Project; HIAS, Inc., the Middle East Studies Association; Muhammed Meteab; Paul Harrison; Ibrahim Ahmed Mohomed; John Does Nos. 1 & 3; and Jane Doe No. 2) filed a Motion for a Temporary Restraining Order or a Preliminary Injunction. In an opinion by U.S. District Judge Theodore D. Chuang, the United States District Court for the District of Maryland found that the revised Executive Order should be halted because the Plaintiffs are likely to establish that Section 2(c) of the revised Executive Order, which issued the travel ban against citizens of the six designated Muslim-majority countries, violates the Constitution and federal law, specifically the Establishment Clause and Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (2012).

The Plaintiffs argued that they had standing to assert the claim that the revised Executive Order violated the Establishment Clause because the “anti-Muslim views” underlying the Executive Order caused them stress and anxiety. The Court acknowledged that for “purposes of an Establishment Clause claim, non-economic, intangible harms to “spiritual, value-laden beliefs” can constitute a particularized injury sufficient to support standing. Suhre v. Haywood Cty., 131 F.3d 1083, 1086 (4th Cir. 1997). Because the harm suffered by the individual Plaintiffs is “fairly traceable to the challenged conduct” in that the revised Executive Order will result in the disfavoring of Islam, the Court found that the Plaintiffs had standing to assert an Establishment Clause claim.

The Court further determined that in order to withstand an Establishment Clause challenge under the Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971) test, (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’” Id. at 612-613 (citations omitted). The Court found that the Plaintiffs presented a convincing case that the revised Executive Order fails the Lemon test because there is substantial, direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. The Plaintiffs primarily relied on statements made by President Trump and his advisors, including a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on,” an interview with CNN in which Trump professed that he believed “Islam hates us” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace,” and a written statement about the December Berlin attack in which he lamented that people “prepared to celebrate the Christmas holiday” were killed by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

Rejecting the argument about neutrality on its face, the Court granted in part and denied in part the Plaintiffs’ motion. The Court issued a preliminary injunction barring enforcement of Section 2(c) of the Executive Order.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

Discriminatory treatment to African-American Muslim inmates in a Californian correctional facility was deemed lawful under the laws and Constitution of the State of California. The Californian Supreme Court, while taking note of the correctional officials' acknowledgement of discriminatory treatment by refusing to grant Muslim inmates the same privileges to worship, nevertheless deemed this lawful and not violative of petitioners' freedom of religion, as the requests by Muslim inmates were found to be assertive in nature and against the well-functioning of the correctional institution.

This document contains the proposed and approved text of the amendment to the Oklahoman State Constitution in 2010. The amendment differs from many similar legislative endeavors across the United States in that it makes particular reference to "Sharia Law," prohibiting courts from considering a foreign country's laws if that country's legal system includes Sharia. 

On March 6, 2017, President Donald J. Trump, issued a revised Executive Order which barred, with certain exceptions, entry to the United States of nationals from six predominantly Muslim countries, suspended the entry of refugees for 120 days, and reduced the number of refugees who can be admitted to the United States by more than half. The Plaintiffs (the State of Hawai’i and Dr. Ismail Elshikh, an American citizen of Egyptian descent who serves as the Imam of the Muslim Association of Hawai’i) filed a motion for a nationwide temporary restraining order.

The Plaintiffs argued that the revised Executive Order subjected them to discrimination in violation of the Constitution and the Immigration and Nationality Act 8 U.S.C. § 1101 et seq. (INA), because the Executive Order results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” The Plaintiffs pointed to public statements by the President and his advisors regarding the implementation of a “Muslim Ban,” which the Plaintiffs contended was the tacit and illegitimate motivation underlying the revised Executive Order. For example, the Plaintiffs pointed to a statement by President Trump that he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that “We don’t want them here,” and to an interview with President Trump in which he claimed: “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.”

The Court found that the State of Hawai’i and Dr. Elshikh both had standing to assert their claims. The Court found that Hawai’i had standing due to the harms to the state’s proprietary interests as operator of public universities and due to preliminary data that indicated the revised Executive Order had suppressed international travel and injured tourism as Hawai’i’s main economic driver. As for Dr. Elshikh’s standing, the Court observed that the injury-in-fact prerequisite can be “particularly elusive” in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. “Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing.” See Catholic League, 624 F.3d at 1048-49; Vasquez v. L.A. County, 487 F.3d 1246, 1250 (9th Cir. 2007). Dr. Elshikh had standing because the revised Executive Order left him and his family, including a wife of Syrian descent and young children who are American citizens, with the knowledge that the United States—their own country—would discriminate against individuals who are the same ethnicity as them, and who hold the same religious beliefs. The Court found that, because the revised Executive Order targeted Muslim citizens due to their religious views and national origin, which may result in these citizens being unable to associate freely with those of other faiths, the injuries are sufficiently personal, concrete, particularized and actual to confer standing in the Establishment Clause context.

As for the Establishment Clause claim, the Court declined the Defendants’ urging to rely on the Executive Order’s religiously neutral text, and instead evaluated the text in conjunction with the historical background of the revised Executive Order. The Court found this historical record “includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” The Court included statements made by President Trump including: “I think Islam hates us” and “People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.”

Because the Court found that the Plaintiffs have shown a “strong likelihood” of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution, and “it is always in the public interest to prevent the violation of a party’s constitutional rights,” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012), the Court granted the Plaintiffs’ motion for a temporary restraining order (TRO). In effect, the TRO now blocks the second version of the ban.

Editors’ Note: Many of the statements about Islam, including references to Islam generally and to jihād, tend to refer to false conceptions of Islamic law or sharīʿa as inherently violent.

In its decision, the Turkish Council of State (the highest administrative court in Turkey) has decided that the cabinet decision dated 1934 that converted the Kariye Mosque into a museum was void, as it contravened the waqf deed which had dedicated the building as a mosque open to public use.

This presidential decision signed by Turkey's founding president Kemal Ataturk and his cabinet members converted the Hagia Sophia from a mosque into a museum. The decision cites a letter from the Ministry of Education of the time arguing that said conversion would "make the entire Orient happy" and "gift humanity a new site of knowledge."  The Ministry of Education's letter proposing the conversion into a museum, which the presidential decision cites and upon which it is based, also argues that the mosque has no waqf status–despite being used by Ottoman sultans–due to its status as "an artifact from the Byzantines."  

Following the administrative court decision that annulled the Cabinet Decision of 1945 that converted the Kariye Mosque into a museum, President Erdogan made the decision to transfer the management of the site to the Presidency of Religious Affairs and restore it as a mosque open to worship.

ʿAbd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), pp. 89-90.

Source:  Abd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), p. 304.

 Abd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), pp. 220-221.

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.

In its unanimous decision, the 10th Chamber of the Council of State, the highest administrative law court of the country, annulled the Cabinet Decision of 1934 converting the Hagia Sophia from a mosque into a museum. The Court reasoned as follows: the companion law to Turkey's secular Civil Code had provided that the old (Islamic) law would apply to waqfs (endowments) established before the new Civil Code came into force. The Hagia Sophia was a mosque, the Court found, that constituted part of Fatih Sultan Mehmed's (aka Mehmed the Conqueror) waqf, and under the applicable law at the time, it was forbidden to alter the status of waqf property via administrative decisions. The Court therefore ruled that the Cabinet Decision of 1934 had unlawfully changed the status of waqf property. The Court struck down the Cabinet Decision of 1934, thus paving the way for restoring Hagia Sophia's status as a mosque for worship.

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.

Following the administrative court decision that annulled the Cabinet Decision of 1934 that converted Hagia Sophia into a museum, President Erdogan made the decision to transfer the management of the site to the Presidency of Religious Affairs and restore it as a mosque open to worship.

From imam-us.org:

The Office of His Eminence, Ayatullah Sayyid Ali al-Sistani, communicated a letter to the Secretary-General of the United Nations, His Excellency Mr. António Guterres, regarding the desecration of the Holy Quran in Sweden. A translation of this letter can be found below along with a link to the original.

In the Name of Allah, the Most Beneficent, the Most Merciful

To His Excellency Mr. António Guterres
Secretary-General of the United Nations

Greetings with respect and appreciation,

It has been reported in the media that someone in the Kingdom of Sweden desecrated a copy of the Holy Quran, intending to insult the religion of Islam. 

This disgraceful behavior has occurred more than once in different countries in recent years, but it is noticeable that this time it took place with an official permit from the Swedish police, claiming that it is a requirement of respect for freedom of expression!

However, it is certain that respect for freedom of expression does not justify permitting such a shameful act, which represents a flagrant attack on the sanctity of the beliefs of more than two billion Muslims in the world and creates an environment conducive to the spread of extremist ideas and wrong practices.

The Supreme Religious authority condemns what happened and calls on the United Nations to take effective steps to prevent the recurrence of similar incidents, compel countries to reconsider legislation that allows such occurrences, and call for establishing the values ​​of peaceful coexistence between followers of different religions and intellectual backgrounds based on caring for rights and mutual respect for all. 

The Office of Sayyid al-Sistani, Najaf
10 Dhu al-Hijjah, 1444 A.H
6/29/2023

This amicus brief was filed before the Supreme Court concerning the case of Dobbs v. Jackson Women's Health Organization. It was submitted by over 50 faith based organizations, including Muslim Advocates, a Muslim American organization. It argues that abortion is permitted under certain circumstances until approximately 19-20 weeks gestation by many schools of Islamic thought. It cites various scholars of Islamic law to say that, among Muslims, "there is no universally agreed-upon moment when a fetus becomes a person,” however "the predominant view is that a fetus acquires personhood 120 days from conception.”

""Khan v. Hasan, the New York intermediate appellate court held that a mahr agreement under which the husband agreed to pay a sum of money to the wife in the event of divorce was unenforceable under New York state law because the verbal agreement did not conform to New York's laws on matrimonial agreements, which require such agreements to be in writing. The Court further held with regard to the question of applying Islamic law to interpret the alleged agreement: 'It is without question that when courts must touch upon questions of religious concerns, they may not consider religious doctrine.'"

The Malaysian Islamic Development Department (Jakim) recently shared a post on its Facebook account reminding a 2015 fatwā by the Special Meeting of the Fatwa Committee of the National Council for Islamic Religious Affairs Malaysia declaring the use of electronic cigarettes impermissible under Islamic law.

This is a draft report of the Somali Criminal Law Recodification Initiative, which includes, in Volume I, the text of the draft penal code, and in Volume II, a commentary on the draft code.

In its Grand Chamber decision, the European Court of Human Rights (the "Court") held that a French law dating back to 2010, which prohibits the concealment of one's face in public spaces, does not violate the European Convention of Human Rights (the "Convention").  The law was understood by many to have been aimed at women of the Islamic faith who choose to wear face-concealing attire, including the niqab (face veil) and the burqa.  The applicant in the case, a French born Muslim woman who wears the niqab and burqa, alleged that the law impermissibly infringed on her right to privacy, religious freedom, and her right to be free from government discrimination.  The Court disagreed, taking notice of its earlier jurisprudence that the public manifestation of religion -- as opposed to the right to hold a religious belief -- was not immune from government regulation.  It further noted its doctrine of "margin of appreciation," granting governments considerable leeway in their regulation of public manifestations of religion.  It then held, under its proportionality analysis, that the French government's contention that the law was justified on national security grounds was without merit.  However, the Court held that the government's contention that the law was justified via the aim of ensuring that citizens would be imbued with a sense of "living together" had merit.  The Court thus found no incompatibility between the law and the Convention.  Some of the dissenting opinions in the case took issue with the Court's privacy and "living together" analysis, reasoning that the right to privacy included one's right to willingly withdraw from public life or partake in it in ways that would minimize social interaction.

This is a discussion paper prepared by the Horizon Institute on Islamic criminal law reform in Somaliland.  The discussion paper outlines the reasons for criminal law reform in the country; describes the relationship between Somaliland’s penal code and other laws; makes stylistic and structural recommendations on Islamic criminal law reform; considers the proposed crimes and sentences; and makes recommendations for the future.

By Waheeda Amien (University of Cape Town), originally published on The Conversation

South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate.

The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death.

The apex court’s judgment of 10 October 2023, in the case of EB v ER, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.

Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property.

Marriages in community of property are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.

In the case of the out of community of property regime, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.

The change

On 1 November 1984, the Matrimonial Property Act 88 of 1984 entered into force. It introduced a third matrimonial property regime: the accrual system.

The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.

Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family.

Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.

The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.

The judgment

When the accrual regime was created, section 7(3) of the 1979 Divorce Act was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order.

Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services.

In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the Divorce Act, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death.

These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.

Significance of the judgment

The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended.

The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a 2022 case, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.

Next steps

The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law is reviewing existing laws that deal with matrimonial property regimes.

In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death.

In its discussion paper 160, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.

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In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends. 

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