The basis for marriage under Islamic law (Sharia) is a marriage contract – also called “mahr” or “sadaq”. The contract is formed between the prospective married couple by an offer and an acceptance, and stipulates a mahr / dower amount. The marriage is official when the couple and their witnesses sign the contract in the presence of a sharia court official or an authorized “kazi”. The marriage contract, thus entered, forms an integral part of the marriage and sets forth the respective rights and duties of both parties to the marriage.
Often times, depending on which country the contract is entered into and the intention of the parties, the contract will also delve into other issues including division of properties. It can also include language regarding what happens to the dower amount in the event of divorce, death, custody and possession of minor children.
Enforcement of Muslim Marriage Contracts in the US Courts
It’s understandable that these religious marriage contracts will be upheld in the countries where they are entered into. The difficulty, however is – when they move abroad and take their religious marriage contracts to the courts of those foreign countries in the event of divorce. Should those foreign courts uphold their marriage agreements in the same way their home country (where the contracts were executed) would do? There is no definite answer.
In the US courts, for example, these types of religious contracts have received inconsistent treatments depending on a number of factors. But the basic two approaches that the US courts have largely undertaken depend on whether the marital contracts are viewed as prenuptial / premarital agreements or as simple contracts.
Muslim Marriage Contracts as Prenuptial Agreements
Many US courts consider Muslim marriage contracts as premarital agreements and tend to enforce it if it meets certain criteria of a valid premarital contract:
- That the contract does not violate public policy.
- That the marriage contract is not too vague
- That the premarital agreement was not induced by coercion.
- That one of the parties would not profit from filing a divorce under the agreement etc.
In Ahmed v. Ahmed, 261 S.W. 3d 190 (2008) the Texas Appellate Court court decided that a prenuptial agreement is valid only when it is plainly shown that the transaction was fair. In this case the court did not enforce the premarital agreement because there was no evidence that the husband disclosed his assets and the wife received any independent advice before their marriage.
In another case, the Ohio Court found that the husband was coerced into the marriage agreement because the Imam raised the mahr provision only two hours prior to the ceremony when guests were already present placing him under a pressure of social embarrassment. Moreover, the husband also did not consult an attorney prior to signing the marriage contract. [Zawahiri v. Alwattar, 2008 WL 2698679 (Ohio App. 10 Dist.)]
In brief, a Muslim marriage agreement, when viewed as a premarital / prenuptial agreements will likely stand in the US courts if it can be shown that there was financial disclosures without divorce profiteering, advice of the counsel was sought or if it otherwise does not violate public policy.
2. Muslim Marriage Contracts as Simple Contracts
Under this second approach, many US courts consider Muslim marriage contracts as simple contracts and will enforce them if all elements of a civil contract are met. This approach is less burdensome and is easier to apply. Because, the courts won’t require the additional safeguards (such as advice of counsel, financial disclosure) that are needed for premarital agreements.
In Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. Ch. Div. 2002) for example, New Jersey enforced a mahr agreement that was part of the Islamic marriage license. The court reviewed videotaped evidence that showed the families of the spouses negotiating the terms and conditions of the agreement; the parties were shown reading and voluntarily signing the agreement. The court held that it could uphold the mahr agreement by relying on contract law; there was no reliance on religious policy, theories or practices.