The Volokh Conspiracy
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Foreign Law in American Courts
Sharia Divorce Law in American Court
An interesting demonstration of how foreign law—including Islamic law—is sometimes applied (pursuant to American law) in American courts.
From yesterday's Pennsylvania appellate decision in Adewale v. Adewale, decided by Judge Correale Stevens, joined by Judge Anne Lazarus and Jack Panella:
Wife claims the trial court erred in determining that the parties' marriage was void ab initio based on its finding that Wife was married to another individual at the time of the parties' purported marriage. {Although we affirm the trial court's order finding the parties' marriage to be void, we refer to the parties as "Husband" and "Wife" for ease of review.} …
The parties were married on April 21, 2011 in Lagos, Nigeria in a ceremony under Nigerian statutory law. {As discussed infra, Nigeria has a plural legal system where different legal systems (statutory law, customary law, and Islamic law) apply to different communities in Nigeria. [Similar systems exist in other countries, including, for instance, Israel. -EV]}
As Wife had become a U.S. citizen after receiving a Diversity Visa through the lottery program in 1999, she filed for Husband's entry into the U.S. as her spouse in 2012. In April 2013, Husband joined Wife in the U.S.; both of the parties are now dual citizens of Nigeria and the U.S….
During the divorce process, "Husband began to question the validity of the parties' marriage as he discovered that Wife may have been married to another person at the time of the parties' marriage," and the trial court explored that:
The trial court recognized that the law of the state in which a marriage is celebrated governs the validity of the marriage. "[I]f a marriage is invalid under the laws of the state wherein it was celebrated it will not be recognized elsewhere, regardless of the laws of the present domiciliary state or of the forum." … "[A] marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state[.]"
The appellate court cited various Pennsylvania authorities on this, which are consistent with how other courts handle the matter; note also that "state" here refers to foreign countries as well as U.S. states. The trial court took extensive evidence related to the subject; here are some excerpts (though the facts are considerably more complex):
Husband claimed the parties' marriage should be invalidated as Wife was the spouse of William Lasisi ("Lasisi") when Husband and Wife married in 2011. Lasisi, who testified on Husband's behalf, confirmed that he had married Wife in 2001 in Lagos, Nigeria, and still believed Wife was his spouse. Lasisi presented a wedding certificate for the 2001 ceremony as well as multiple photographs of Wife and Lasisi participating in various wedding ceremony rituals…. Dr. Olubukoli Adewemi Olugasa ("Dr. Olugasa"), Husband's expert in Nigerian marital law, opined that Wife and Husband's marriage was invalid under Nigerian statutory law as at the time of their purported marriage, Wife was still married to Lasisi by customary marriage not yet dissolved….
Wife offered the testimony of Judge Surajudeen Onigbanjo ("Judge Onigbanjo"), who had served on the State High Court of Lagos, Nigeria, as well as the testimony of Judge Iris Abdullahi Haroon ("Judge Haroon"), retired Grand Kadi of the Sharia Court of Appeal in Kwara State, who both asserted that they did not believe that that Wife's marriage to Lasisi was valid as Husband failed to present evidence that a dowry or sadaq was paid. Wife claimed that she had never married Lasisi, as their relationship "soured" for various reasons….
Further, Wife offered an alternative argument claiming that even if the trial court found she had married Lasisi, she and Lasisi had divorced in 2006 through a family meeting in which Lasisi told Wife "I divorce you" three times. Judge Haroon, indicated that this verbal declaration, referred to as triple talaq, is a recognized procedure for a husband to obtain a divorce in an Islamic marriage.
On January 16, 2025, the trial court entered orders on the divorce and support dockets declaring that the parties' marriage was void ab initio, terminating Husband's alimony pendente lite obligations, and setting Husband's support arrears balance to zero. The trial court set forth its rationale which was based on several factual findings.
First, the trial court found that Wife married Lasisi on September 1, 2001 pursuant to Nigerian traditional/customary law as well as Islamic law. Second, the trial court found that Wife had not shown that her marriage to Lasisi was dissolved at the time of Husband and Wife's marriage in 2011…. Lastly, the trial court found that as Wife was married to Lasisi, she was barred from entering a statutory marriage to Husband in 2011….
The trial court set forth the following background on the types of marriage in Nigeria based on expert testimony presented at the hearings in this case:
There are three types of marriage in Nigeria: (1) statutory or Court marriages under the Marriage Act of Nigeria (hereinafter the "Marriage Act"), (2) marriage by traditional law and custom, and (3) Islamic marriage. A man and woman may be married under any one of these methods, or multiple at once. However, a statutory marriage under the Marriage Act of Nigeria is invalid "where either of the parties thereto at the time of the celebration of such marriage is married under customary law to any person other than the person with whom such marriage is had."
Under Nigerian traditional law and custom, polygamy is legal, meaning it is possible for a man to marry more than one woman. Islamic marriages allow for a man to take up to four wives at a time. Women in Nigeria are not allowed to take more than one husband; this practice is called polyandry, which was banned in the 1960s….
And the appellate court affirmed the trial court's decision:
The trial court properly exercised its discretion to apply the Nigerian Marriage Act, which is consistent with Pennsylvania law that provides that a marriage will be deemed void where either party at the time of marriage had an existing spouse and the former marriage had not been dissolved by divorce, annulment, or a decree of presumed death of the former spouse. Given that it is undisputed that Husband and Wife were validly married in a ceremony under Nigerian statutory law, the parties' marriage would be void if Wife was married to another individual at the time of her marriage to Husband in 2011…
We agree with the trial court's finding that Husband met his heavy burden of proving that Wife married Lasisi in 2001 under both Nigerian traditional law and Islamic law and rejecting Wife's claim that she merely participated in an "introduction ceremony." …
[And t]he trial court [also] found that Wife's marriage to Lasisi had not been dissolved by [either] traditional/customary law nor Islamic law…. With respect to Wife's Islamic marriage to Lasisi, the trial court declined to find a valid divorce occurred in 2006 when Lasisi made a verbal declaration repeating "I divorce you" three times to Wife in a meeting in Lagos, Nigeria where Wife and several of her family members were present. Based on testimony from Wife's expert witness, Dr. Achebe, the trial court found this unilateral method of divorce, triple talaq, recognized in Sharia law, could "only be valid if uttered by a Muslim husband." Given that Lasisi did not identify as Muslim as he had converted to Christianity in 1980, the trial court found that Lasisi "could not divorce Wife in this manner."
And the appellate court had this to say about the trial court's reliance on Sharia law related to the triple talaq divorce:
Although Wife argues that the trial court erred in relying on Dr. Achebe's representation that triple talaq can only be implemented by an Islamic man, she has not presented this Court with any applicable authority to question this legal principle, leaving this Court unable to assess the merits of her claim. Wife's expert witnesses did not testify at any point as to this distinction. As Wife has not supported her argument with any applicable authority, we find this claim to be waived for lack of development.
It also added, in a footnote:
Further, we will not disturb the trial court's finding that Wife had not shown a valid divorce from her marriage to Lasisi as the trial court was not required to extend comity to recognize talaq as a valid, unilateral method for divorce pursuant to Sharia law. As noted above, comity gives a trial court discretion as to whether to give "effect to laws and judicial decisions of another state out of deference and mutual respect, rather than out of duty."
Nigeria has a plural legal system that combines statutory law (which is heavily influenced through English law), indigenous customary law, and Islamic religious law (Sharia). Wife's own expert witnesses admitted that while several of Nigeria's northern states have implemented Islamic law, it has not been implemented in all of Nigeria or in Lagos, a southwestern state of Nigeria. Wife's expert witness, Judge Haroon, served as a member of the Sharia Court in Kwara state, where Islamic law has been implemented; Judge Haroon admitted admitted that Sharia law does not govern the state of Lagos. As such, the trial court would not be engaging in comity with the applicable secular laws of Lagos, Nigeria, had it chosen to recognize talaq through Sharia law.
Further, courts of other U.S. states have declined to recognize talaq as a valid unilateral method of divorce on the grounds that it violates the right to due process, equal protection, and fundamental fairness. See, e.g., Aleem v. Aleem (Md. 2008) (declining to extend comity to talaq divorce under Islamic religious law and secular Pakistani law as recognition of talaq would violate the due process, equal protection, and public policy); Seth v. Seth (Tex. App. 1985) (holding that recognition of talaq would be contrary to justice).
