THE NON-RECOGNITION OF ISLAMIC MARRIAGE AND DIVORCE

Abstract

The general rule regarding the validity of foreign marriages followed by most US courts is that a marriage if validly performed is valid everywhere. But there are exceptions based on public policy. Thus, while a non-incestuous, monogamous marriage performed in a Muslim country between consenting adults would be recognized in the United States, a polygamous marriage most likely will not. Bigamy is a crime in all states, although the husband is rarely prosecuted unless there are other factors, e.g., spousal abuse or fraud. The U.S. Constitution’s protection of an individual’s religious rights might be asserted as a basis for allowing Muslim men to have more than one wife but it seems unlikely to succeed as the Supreme Court rejected a similar argument in a case involving a Mormon man who had several wives as permitted by his religion. However, several state supreme courts have recently held that a State cannot constitutionally ban same sex marriages; this article explores the possibility that similar bans on polygamous marriage might be held to be unconstitutional. The article also explores the difficulties encountered in attempting to have a US court give effect to a Ṭalāq divorce, especially where the Ṭalāq is not confirmed by a court or other judicial body.