North Carolina Appeals Court: Unregistered Islamic Marriage Valid, Islamic Divorce Not
14 Dec 2011 03:13 GMT
 
06 December 2011

The North Carolina Court of Appeals (pictured) says a Wake County man can annul his 12-year state-registered marri (more)


06 December 2011

The North Carolina Court of Appeals (pictured) says a Wake County man can annul his 12-year state-registered marriage because his wife was still married to another man, though the previous Islamic marriage was officiated by an unrecognized minister and there was no marriage license.

The question mulled over by the court: Were an Islamic marriage and divorce valid, even though neither was certified by the state?

A state Court of Appeals panel ruled 2-1 that the marriage was leaglly upheld, though technically voidable, and it required a legally registered divorce to officially terminate it. In other words, her Islamic divorce was invalid and she is still married to her first husband.

The issue was brought to court after Nikki Palmer married Juma Mussa in a state-licensed ceremony after supposedly divorcing her first unregistered husband according to Islamic law.

After their marriage fell apart, Mussa sought an annulment on the grounds of bigamy.

In 1997, according to the case narrative, Nikki Palmer married Khalil Braswell in an Islamic ceremony conducted by a friend of Braswell's named Kareem. "After the ceremony, the couple lived together in Maryland, but the marriage was never consummated."

Later that year, Nikki Palmer "divorced Mr. Braswell in the manner required by Islamic law by returning the dowry and declaring that she was divorced from her husband."

Still later that year, she married Juma Mussa in Raleigh after obtaining a marriage license from the state. They remained married for 12 years and had three children.

After Nikki Palmer filed for divorce, her husband filed an action of his own claiming the marriage should be declared void because Nikki was already married to Braswell.

Judge Christine Walczyk in Wake County District Court tossed out his motion. Mussa appealed.

By a 2-1 vote, the Court of Appeals reversed the lower court and declared "the marriage between plaintiff and defendant is void."

As a consequence, Juma Mussa does not have to pay the support for Palmer and their three children that was originally ordered by the lower court.

To reach that conclusion, Judges Ann Marie Calabria, who wrote the decision, and John Martin had to rule that Nikki's first, unregistered Islamic marriage was valid but her Islamic divorce was not.

A key issue rested on the credentials of Kareem. State law in effect at the time said that a "valid and sufficient marriage" occurs when a male and female express their desire to become husband and wife "in the presence of an ordained minister of any religious denomination, minister authorized by his church, or of a magistrate" with the "consequent declaration by such minister or officer that such persons are husband and wife."

Kareem, the court acknowledged, "was not an imam, an Islamic religious leader. His primary profession was construction. He was not even a member of the church staff or employed by the church."

Nevertheless, Judge Calabria cites a 1929 state Supreme Court ruling, noting that "the Court has uniformly held 'that a marriage, without a license as required by statute, is valid.'"

Once it's accepted that a marriage is valid, Calabria continues, it can't be wiped out by simply returning the dowry and declaring oneself to be divorced.

"While defendant claimed she and Mr. Braswell were divorced according to the laws of Islam, there is no authority supporting the dissolution of a marriage by religious means that can be deemed to be 'the equivalent of a judicial determination' regarding the validity of a marriage."

In other words, the state should not recognize the dissolution of a valid marriage by a declaration by one of the parties that the marriage is over, whether that conforms to some religious practice or not.

Due to the questionability of Kareem's legal capacity to officiate a marriage, the ruling is likely to be submitted for review before the state Supreme Court — and there is an automatic right of appeal because it is a split decision.

Judge Wanda Bryant, in her dissenting statement, says that the "plaintiff presented insufficient evidence to support the conclusion that the marriage ceremony participated in by defendant and Braswell in early 1997 met the statutory criteria ... requiring the participation of 'an ordained minister," etc.

Judge Bryant observed that the current marriage of plaintiff and defendant was licensed and its validity never questioned — until Nikki filed for divorce, that is.

And she added: "Further, though perhaps not a part of plaintiff's direct evidence, the record reflects that the early 1997 Islamic marriage plaintiff alleges was valid ended in divorce in a manner recognized under Islamic law."

In other words, if the Islamic marriage counts, the Islamic divorce should, too.

Sources:

Doug Clark, "Court muffs Islamic marriage case" Greensboro News & Record December 6, 2011

"Divided North Carolina appeals court rules action needed to end even invalid marriages" The Republic December 6, 2011

Reproduced with permission from Islam Today



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