Most Judeo-Christians in the United States can expect the road to marriage to unfold in the following way: a man and woman date, they fall in love, the man proposes with a ring, the woman accepts, and they spend the next six-to-twelve months preparing for the sacrament of marriage.[i] The couple’s focus, under this tradition, is the marriage ceremony and the uninhibited expectation that their love will last forever. Concerns about the other’s financial stability upon death or divorce are secondary, nonexistent, or even taboo. In Islamic marriage, however, this concern is not ignored. In fact, a wife’s financial stability after divorce is of paramount importance in Muslim marriages, regardless of whether they are formed in the United States or in Islamic nations.
Under Islamic law and tradition, a couple, prior to marriage, must execute a marriage contract.[ii] Common to all such contracts is a mahr, a sum of money or other valuable assets that a husband promises to give his wife.[iii] In many instances, a portion of the mahr is given prior to marriage while the rest is delayed until the couple divorces or the husband dies so that the wife is financially protected.[iv] Mahr agreements are largely foreign to non-Muslims and are commonly confused as a “bride price” or dowry.[v] Even in American family law courts, judges struggle to understand mahr agreements and many default to analyzing them under familiar common law concepts.
Such enforcement and non-enforcement has produced devastating results for financially dependent Muslim women during property distribution and spousal support proceedings.[vi] This devastation commonly enfolds in two ways. First, when courts interpret the mahr as a prenuptial agreement, the wife receives only what was promised to her in the mahr agreement to the exclusion of all other marital assets and potential spousal support available to her under her state’s equitable distribution and alimony regimes.[vii] Second, when courts interpret the document as a civil contract under basic contract principles, they will often find that interpretation of unfamiliar religious terms amounts to religious entanglement, precluding enforcement under the First Amendment. As a result, the wife does not receive any of the money or property promised to her in the agreement. This approach is particularly disadvantageous to Muslim women who form their marital contracts abroad and do not expect for their agreements to be interpreted under American common law.
The courts’ confusion over mahr contracts—what they are, how they are interpreted, and if they are enforceable—appears to stem from a lack of cultural understanding and an unwillingness to recognize mahr’s meaning in Islamic law. This confusion frustrates and unfairly punishes Muslim couples who, by cultural and religious necessity, live under the secular laws of the United States just as much as they abide by the law of Shari’ah. In order for Muslim-American women to achieve financial equity upon divorce, American courts must take into account the cultural and religious norms that underlie mahr agreements. Engaging in this inquiry would reveal that mahr agreements are not prenuptial agreements and should never be enforced as such.
In terms of substance, what non-Muslim couples bargain for in their prenuptial agreements greatly differs from what Muslim couples bargain for in their mahr contracts. In the United States, premarital agreements generally function to shield the property and income of a wealthy spouse from claims of a dependent spouse upon divorce.[viii] The dependent spouse in this context knowingly bargains away rights that he or she may have under their state’s equitable distribution and spousal support laws. In contrast, when Muslim couples negotiate the terms of the mahr agreement, the wife, as the dependent party, never intends to forego all other separate property or maintenance entitlements. This is, in part, because American concepts of marital property and equitable distribution do not exist in Islamic law.[ix] It is also because Islamic law places great importance on women’s financial security upon divorce, and thus any device that works against that end by “shielding” money and assets from them completely ignores the symbolic and protective functions of mahr which are deeply rooted in the Islamic tradition.
Courts should also maximize the interpretational benefits afforded to contracts and analyze mahr agreements using neutral principles of law. As courts in several jurisdictions have concluded, a contract to pay money is no less of a contract just because it was entered into at the time of an Islamic marriage ceremony.[x] The fact that the document merely exists pursuant to religious doctrine is unimportant; the neutral principles of law approach should apply to give these agreements force. Although this analysis is becoming the norm, its application varies. As wedding season fast approaches, Muslim-American couples should be aware that courts are very inconsistent in their enforcement or non-enforcement of Islamic mahr agreements and that more and more often, these agreements are analyzed strictly under basic contract principles, which require clear expressions of offer, acceptance, and consideration.
[i] See Wael B. Hallaq, Sharia: Theory, Practice, Transformation 271 (2009) (explaining that the marriage ceremony under the Christian tradition is a sacrament, solidifying man and woman as husband and wife).
[ii] Most Muslims who marry under the Islamic tradition execute marriage contracts regardless of whether they live in the United States or abroad. See Richard Freeland, The Islamic Institution of Mahr and American Law, 4 Gonz. J. Int’l L. 2 (2001).
[iii] See Nathan B. Oman, How to Judge Shari’a Contracts: A Guide to Islamic Marriage Agreements in American Courts, 2011 Utah L. Rev. 287, 291 (2011).
[iv] See Chelsea A. Sizemore, Enforcing Islamic Mahr Agreements: The American Judge’s Interpretational Dilemma, 18 Geo. Mason L. Rev. 1085, 1089 (2011).
[v] Id; see also Nathan B. Oman, Bargaining in the Shadow of God’s Law: Islamic Mahr Contracts and the Perils of Legal Specialization, 45 Wake Forest L. Rev. 579, 589-91 (2010). Mahr is neither a bride price nor a dowry. Unlike a dowry and a bride price, which is money paid by the husband to the bride’s family, mahr is sum of money or property paid by the husband directly to the wife. Id.
[vi] Mahr is asserted in the United States by both men and women for different reasons. Muslim men typically seek enforcement when they have more to lose under property distribution, whereas women try to enforce mahr as a debt, in addition to whatever they are entitled to under state divorce law.
[vii] See, e.g., Dajani v. Dajani, 204 Cal. App. 3d 1387, 1389-90 (1988); Shaban v. Shaban, 88 Cal. App. 4th 398; Habibi-Fahnrich v. Fahnrich, No. 46186/93, 1995 WL 507388, at *1 (N.Y. Sup. Ct. July 10, 1995).
[viii] See Gail Frommer Brod, Premarital Agreements and Gender Justice, 6 Yale J.L. & Feminism 229, 234-35 (1994).
[ix] See Hallaq, at 279.
[x] See Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. Ch. Div. 2002).