Should U.S. judges consider foreign laws in divorce?

On behalf of Stange Law Firm, PC posted in Property Division on Thursday, October 18, 2012.

For many people, religion plays a major role in their lives and is represented at major life occasions. Naturally, many people include their religious beliefs into their wedding. However, if the marriage ends up not working out as planned, many of those same people also want their religious beliefs to be honored in their divorce.

The idea of whether U.S. judges should consider Islamic law and other foreign laws is a hot-button issue. Right now there are already six states where judges are only allowed to rely on U.S. laws and are prohibited by law of considering foreign laws. About 20 others states in the U.S. are also trying — or have tried in the past — to pass similar laws to prohibit foreign laws.

An example of when Islamic law and U.S. law meet and can become quite tricky is when a dowry is involved. This dowry, in the marriage, is the money or property the bride brings into the relationship. In the marriage, there can be a provision on just how this dowry would be split up in the case of divorce.

However, while in Islamic law the dowry provision would clearly lay out how it would be divided, in the U.S. — if a judge does decide to even rule on the dowry provision — it is normally looked at in relation to all of the couple’s assets. This means that if the dowry is $90,000, the judge will look at how much the couple earns, how long they have been married for an if there are any children before deciding if that $90,000 is reasonable or not.

This of course is also just one example. Other examples of where a U.S. judge may decide to not follow a foreign law court order would be when it comes to child custody. Basically, even though a contract may say the child would end up with the mother if the father was to remarry, a U.S. judge would look at these types of cases on an individual basis and make a decision based on what is in the best interest of the child — not what the foreign law court order states.

But what do you think? Should U.S. judges be considering foreign law when making divorce-related decisions in Illinois? Or should decisions be ruled strictly based on U.S. laws?

Source: The Washington Post, “Shariah or not, Muslim divorces can get tricky,” Omar Sacirbey, Oct. 1, 2012

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