North Dakota Court Rejects Foreign Islamic Divorce Recognition in Landmark Case

In Ali v. Osman, a North Dakota court has declined to recognize a foreign Islamic divorce, a decision now under appeal to the North Dakota Supreme Court. The case centers on Sara and Mojahid, who were married on February 5, 2001, in Sudan under Islamic law.

Under Islamic law, a husband has the unilateral right to initiate a divorce, known as talaq. To finalize a talaq, the husband must pronounce his intent to divorce his wife on three separate occasions, either verbally or in writing. Crucially, the husband is not required to communicate these pronouncements to his wife, nor does she need to be present or even aware of them. Additionally, a wife has no legal recourse to object to a talaq.

Unbeknownst to Sara, Mojahid pronounced talaq three times prior to December 11, 2022. On or about that date, Mojahid obtained a Certificate of Divorce from Sudan (the "Divorce Certificate") based on his talaq pronouncements. At the time, neither Mojahid nor Sara resided in Sudan; they had been living in the United Arab Emirates (UAE) since 2015. Sara was not present when Mojahid obtained the Divorce Certificate, and he emailed it to her on December 19, 2022.

Sara had been consulting with an attorney in the UAE about divorce proceedings in 2021 and 2022. She subsequently filed for divorce in the UAE, but Mojahid countered by asserting that the parties were already divorced, citing the Divorce Certificate. The UAE action was later dismissed.

In February 2023, Sara relocated to the United States, where Mojahid had accepted a university position. The couple briefly reconciled and moved back in together in May 2023. Sara filed for divorce in North Dakota on July 26, 2024, alleging the marriage remained valid since February 5, 2001.

Mojahid argued that the North Dakota court lacked subject matter jurisdiction over Sara’s divorce action, claiming the parties were already divorced due to his talaq pronouncements and the Divorce Certificate. The court, however, clarified that it was not tasked with determining the validity of talaq or the Divorce Certificate under Islamic law or Sudanese law. Instead, the court’s focus was whether it should exercise comity—the recognition of foreign orders, judgments, or decrees.

The doctrine of comity is defined as follows:

"Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislature, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under