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There appears at first to be little at stake in a Palestinian couple’s divorce now working its way through New Jersey’s Passaic County Superior Court Family Part. Houida Odatalla and Zuhair Odatalla, her husband of six years, have neither wealth nor property to split. She’s a student, and his work at his family’s electronics store was curtailed by an unusual stroke suffered in 1997 at age 24. Houida is only asking Zuhair to fulfill a promise he made when they were married, that he give her $10,000 in the event of their divorce — a sum that would be pocket change in many divorces. Yet, the case is being closely watched by Muslim lawyers in New Jersey. However Judge John Selser III rules on the motion, on which papers were filed last week, the consequences for the Muslim community could be palpable. It will be New Jersey’s first substantive ruling on Islamic law. The concept of a secular Western court ruling on the validity of Islamic jurisprudence — or shari’a — has Muslims worried and hopeful. The worry is that Selser will misunderstand the issues or make a ruling damaging to the credibility of the religion. The hope is that he will write an educated, enlightened decision that fairly enforces and reflects some of their most cherished customs. “We are concerned that if this becomes a battle, it is going to divide the community,” says one Muslim attorney not involved in the case. “Up to this time I am not aware of any [previous] litigation involving Muslim issues.” That concern manifests itself within Muslim neighborhoods as avoidance of the American court system in nonsecular areas where Islamic law holds sway. In such arenas — family law, for instance — the parties generally opt to solve the dispute among themselves or with the aid of a local imam or a respected elder. “Most people want to keep family disputes private,” notes Asifa Quraishi, a Muslim lawyer who is studying for an S.J.D. at Harvard Law and who has written academic papers on the issue. That may be about to change. As second generations of American Muslims become old enough and independent enough to retain lawyers, they will likely bring disputes involving Islamic law to the secular courts, Muslim attorneys predict. At least two Muslim lawyers in northern New Jersey are attempting to mesh the interests of Islamic and secular law for the benefit of their clients. In the Odatalla case, the Islamic concept in dispute is mahr (pronounced “mah-hurr”), a type of dowry agreement. When Muslims marry, Islamic law provides for both parties to fill out a detailed marriage contract. Within the contract is the mahr agreement, which governs all kinds of financial, emotional and personal expectations of the wife. In Islamic law there is no concept of community property or equitable distribution. Each party walks away with what he or she brought in to the marriage and personally accumulated during it. The mahr, therefore, gives the wife a safeguard against destitution should her husband decide to leave. In a standard mahr, the wife receives an immediate or “prompt” gift from the husband, usually a gold coin. The mahr then provides for a deferred gift, often a much larger sum of money, payable at a later date or upon the death of the husband or the dissolution of the marriage. A mahr can be carefully negotiated and excruciatingly detailed in its provision for the wife. Mahrs cited in cases in other states contain promises by the husband to provide such amenities as a home gym, a trip around the world including a visit to Mecca, a leather coat and pager, a year’s rent and a prayer carpet. Houida Odatalla claims that Zuhair Odatalla has reneged on his mahr, which was noted on their marriage certificate thus: “According to Islamic Law Dower is: Prompt One golden pound coin; Postponed Ten thousand U.S. dollars.” “It is an agreement between parties that in the event of divorce or death he will pay $10,000, which is part and parcel of their religious customs or their social traditions,” says Houida’s lawyer, Clifton solo practitioner Abed Awad. “And because of it being customary and part of their social and customary practices, when the parties placed this agreement on paper there was a meeting of the minds. … He must abide by his promise to pay in event of divorce.” Zuhair’s lawyer, Thomas Raimondi of Afflitto, Raimondi & Afflitto in Wayne, N.J., sees it differently. “The mahr noted on their marriage certificate is not a contract that is recognized or enforceable in New Jersey,” he says. Raimondi argues that the mahr looks more like an inter vivos gift, lacking the consideration a contract would require. He also argues that enforcing the agreement would be endorsing a religious custom, in violation of the First Amendment. Selser has an interesting time ahead of him as he researches his opinion. Although New Jersey has a large Muslim population — estimates vary from the high tens of thousands to as many as 400,000 — the state courts have made only three rulings that mention the term “Islamic law.” All of those cases discuss the term only as it applies to child custody disputes involving courts in Islamic countries. Nationally, Islamic law has been mentioned in just 87 instances, with legal analysis limited to freak cases rather than the stuff of the Muslim community’s everyday life. Islamic law has intrigued judges largely where Muslim parties arrived in the court under duress, such as in the 1993 World Trade Center bombing ( U.S. v. Rahman, 189 F.3d 88), and in a 1976 prosecution of a Muslim man on charges of endangering his 13-year-old daughter by allowing her to marry a friend ( New York v. Benu, 87 Misc. 2d 139). Mahrs have been addressed in other jurisdictions, with varying results. California’s Court of Appeals has twice ruled them unenforceable. In 1988, the court ruled in Dajani v. Dajani, 204 Cal. App. 3d 1387, that the mahr was against public policy because it was designed to facilitate divorce by providing a profit to the petitioning wife. Last year, the same court treated a putative mahr as a prenuptial agreement but ruled, in Shaban v. Shaban, 88 Cal. App. 4th 398, that its language was too scant to be enforceable. Conversely, the Supreme Court of New York in Queens County found a $5,000 mahr to be a legitimately enforceable contract in Aziz v. Aziz, 127 Misc. 2d 1013 (1985), and the Florida Court of Appeals enforced a $50,000 mahr (there called a “sadaq”) in Akileh v. Elchahal, 666 So. 2d 246 (1996). The American legal system’s penchant for winners and losers is another reason why so few Muslims have litigated family disputes through the courts. “In going to an American court, it is winner take all,” says Professor Abdullahi An-Na’im of the Emory University School of Law. He says Muslims find the harshness of American justice distasteful, and so “the temptation is to find ways of adjudicating or arbitrating disputes away from the courts.” ADR IN THE BACK OFFICE In Passaic County, where the Odatallas live, such alternative dispute arbitration is likely to be done by a respected elder figure in the community. Awni Abu-Hadba, the owner of a jewelry store in Paterson near the Clifton border, the heart of Passaic’s Arab community, is one such figure. Countless Muslims have entered Abu-Hadba’s windowless back office, with its framed photograph of the owner posing with Yasser Arafat, to seek his help. In order to end a fight, both sides must agree to abide by Abu-Hadba’s decision before he will agree to listen. Abu-Hadba, who is not a lawyer, estimates he has resolved about 57 serious “cases” since 1978, when he opened shop. “Everybody knows me, so they come to me,” Abu-Hadba says. “We handle a lot of problems between husband and wife. It could be between children and parents. It could be between business people that deal with each other,” Abu-Hadba says. “Anything, you name it.” For example, Abu-Hadba relates the story of a business partnership that broke up. One party said he was owed $60,000; the other claimed the debt was just $5,000. Abu-Hadba was asked to settle the dispute. In addition, he functioned as a financial guarantor to both men — if either party defaulted on Abu-Hadba’s ruling, he promised to pay the award. Ultimately, Abu-Hadba found that the debt was $12,500. But the debtor refused to pay any more than $10,000. Abu-Hadba made up the difference for the creditor from his own pocket. “A month later, I get a check, $2,500,” says Abu-Hadba. “He [the debtor] said ‘I got more money,’ that’s it. That’s how it goes.” In Muslim areas, informal arbitrators like Abu-Hadba are common. “It goes back to the time of their respective countries where in the village you would have a learned elder who everyone respected based on age and education,” says Aslan Soobzokov, a Muslim solo practitioner in Paterson, N.J. “He will give his advice, which is generally pretty fair.” Most often, local imams hear and solve disputes. Abu-Hadba maintains his influence in Paterson because of the longevity of his practice and because his system works: Battles are settled quickly and cheaply. In an insular community that cannot afford prolonged divisions and internecine strife, the value of his function is obvious. But the strengths of his role are also its disadvantages. As he says, he knows everyone — the potential for conflicts of interest looms large. In addition, Abu-Hadba is a man with an agenda. For instance, he doesn’t like divorces. “I don’t like to split families, I’m against this,” he says, which might be a problem if you want one. However, New Jersey Muslims’ choices of avenues of dispute resolution are broadening. In the 1990s, a handful of Muslims passed the bar and established practices within their communities: Awad, Soobzokov, Clifton solo practitioners Sohail Mohammed and Melinda Basaran, and Hamdi Rifai of Rifai & Associates in Paterson, to name a few. “I was dying to get Muslim lawyers, Arabic lawyers, people who understand our language, our customs,” says Abu-Hadba. “I was so glad when [they] graduated and came to work here. And I think they will give our people a break on the fee,” he laughs. He says they won’t supplant his role as a mediator but are better equipped to guide Muslims through a system they often regard as hostile. Clifton’s Mohammed is taking it one step further. He’s investigating whether it is possible to formalize Islamic estate practices in such a way as to withstand the scrutiny of a secular court. On the face of it, Islamic law and New Jersey law appear to be mutually exclusive on the subject of a husband’s will. In New Jersey, a surviving wife can take what her husband’s will provides or opt for what the statute provides at N.J.S.A. �3B:8-1 through 19, which is at least one-third of everything. In Islamic law, a wife is only entitled to one-eighth of the estate, with the majority going to the children. The surviving family also has a duty to provide for the wife. Any Muslim man writing a will in accordance with Islamic law will thus face difficulties. “He knows it won’t be respected,” says Mohammed, who once advised an Egyptian man with a substantial taxicab business, “I cannot guarantee that it will be accepted. … It’s against public policy.” Mohamed’s proposed solution: to have the husband and wife, after receiving the advice of counsel, sign the husband’s will as a form of binding agreement that will allow the estate to be distributed on Islamic lines. “As long as they’re consciously doing this voluntarily with the guidance of counsel, I don’t think there’s any judge who would set aside this kind of contract. … An attorney’s role as I see it is to advise clients, not to make their minds up” for them. He adds, however, that as a backstop to avoid a malpractice action from a wife who later becomes disgruntled with her one-eighth share, he would have her sign a waiver noting that she was fully informed of the consequences of such an agreement. Whether one of Mohammed’s will-contracts succeeds in the courts is a question for the future. But the notion of trying to find ways of threading Islamic law through the eye of the secular needle is being debated among Muslim academics and attorneys. “I’ve talked to Muslim lawyers and nonlawyers and they say we need to address this as a community,” says Quraishi. “There’s an interest in being faithful to Islamic law and there’s the issue of fairness when Islamic law looks unfair.” As the Muslim population grows, clashes between Islamic and U.S. law become increasingly likely. The initial skirmishes are likely to be in divorce, family law, child custody and estate law, attorneys say, because of the strength that shari’a retains over those areas in Muslim communities. “Even in secular areas like Northern African countries or West African countries, you still find that family law or personal law is governed by Islamic law when the rest of the legal system is secular, Western or French or English common law,” says Emory University’s An-Na’im. Clearly, the symbolic value of Selser’s ruling in Odatalla will far outweigh the financial consequences. And both attorneys agree on one thing: New Jersey’s courts will need to take a stand. “You have 400,000 Muslims in New Jersey, and pretty much every Muslim has this mahr agreement,” says Awad. “I bet we’ll start seeing [more of] this in 10 years.” Adds Raimondi, “I would imagine it’s a phenomenon that’s going to have to be dealt with.”

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