While working with several family lawyers in Houston recently, it occurs to me that it is always a good time to remind citizens of Pakistan and other “Islamic” countries, that the Islamic divorce proceeding referred to as the “Talak” or sometimes as triple Talak is not recognized generally in the US as a valid divorce. Normally, the US will give recognition (called “comity”) to the laws of other countries except in those cases where the foreign law or procedure would not be allowed in the US. This usually means the foreign law lacks some aspect of US law like the right to notified, the right to due process, or in criminal matters a lack of specific intent or no protection against illegal searches. In the case of Talak, the primary issue is that the husband is allowed to perform the procedure with no notice to the wife which is a violation of one of the most important US requirement: the right to be notified of actions taken against you so you can defend your rights.
Interestingly, we have one of the Beatles to thank for this state of affairs, particularly, John Lennon. His deportation case from the US provides not the first case on comity of foreign law, but it is clearly the most famous. And many of you may not realize Mr. Lennon was in deportation proceedings at all.
The time was the early 1970s, what Hunter S. Thompson called the “Age of Nixon”, when the US government was paranoid about anti –war protestors, civil rights agitators, enemies of President Nixon and his administration and many others. The government used all of its power: the FBI, CIA, IRS and the old INS against anyone it felt was the “enemy”. And John Lennon and his wife Yoko Ono had proven to be two of the most prominent and effective anti-Vietnam War protestors in the world. So according to the Nixon Administration, they had to go.
The immigration proceedings against John and Yoko are quite complicated (and are summarized in a very good documentary if you are interested) but for our purposes culminated in the Second Circuit Court of Appeals in 1975 (the level just below the US Supreme Court) in what has become a very important case about how the US will view foreign law and its impact on US law; in this case, immigration law. The INS claim against John (Yoko was not part of the Second Circuit case since she had been a permanent resident since 1964) was based on a prior conviction in the UK for possession of marijuana. At the time, possession of any amount of marijuana was grounds for inadmissibility which in this proceeding was tantamount to deportation. Under the current Immigration Act, possession of under 30 grams of marijuana is allowed if that is the basis for the conviction and a waiver can be obtained. Fortunately for the Lennons, the Court looked at the validity of the UK law under which John was convicted.
In short, the Court ruled that the UK law under which John was convicted would not be enforceable in the US because it lacked the element of proper intent and knowledge. So, although the conviction was valid in the UK, for which he paid a fine, it was not recognized in the US as a valid criminal law and therefore could not be used as grounds to deport (actually exclude and deny his adjustment application). In effect, he had no conviction at all.
For the same reason, if a man goes to an Islamic country such as Pakistan which recognizes Talak and divorces, the question is whether that divorce is valid in the US. US courts have consistently held that since Talak process violates at least the right to notice, if not others, it is not recognized in the US. And if the divorce is not recognized, then the man is still married, at least as far as the US is concerned. We see this most often when the man returns to the US and remarries, not realizing he is still married to the “previous” wife. Just as John Lennon had no drug possession conviction under US law, neither does the Pakistani man have a valid divorce, even though drug conviction was (and is) still valid under UK law and the Talak is valid under Islamic law.