Religion and the Law

Islamic Prenuptial Agreements (Mahrs) Are Enforceable by American Courts, Like Other Prenups

So a Maryland appellate court held last month, I think quite correctly (and consistently with the broad trend in other states):

|The Volokh Conspiracy |

From Nouri v. Dadgar (Md. Ct. Spec. App. Apr. 7):

These two cases, consolidated for purposes of this opinion, present the same issue of first impression in Maryland: May a civil court adjudicating a divorce enforce a provision in a religious marriage contract that requires one spouse to make a payment to the other?

We hold that a Maryland court may enforce such a provision only if, under secular legal principles, the contract satisfies the requirements of an agreement entered into by parties in a confidential relationship. That is, (1) "the burden of proof … falls upon the party seeking to enforce the agreement"; and (2) "[t]he correct standard for determining the validity of [the] agreement … [is] whether there is an 'overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or procurement.'"

Each of the couples in these consolidated cases was married in both a civil ceremony and an Islamic religious ceremony. In connection with the Islamic ceremonies, each of the couples entered a marriage contract that contains a mahr, a provision that, as relevant here, required each of the husbands to pay a quantity of gold coins to each of the wives. The enforceability of those mahrs is the sole issue in each of these appeals. To provide context for our analysis, we will first explore what a mahr is and then turn to the facts of the two cases on appeal….

All four of the parties in these cases are of Iranian descent, and their Islamic marriages were inspired by practice in Iran. Marriage in Islam is a contractual undertaking, the basic elements of which are offer, acceptance, and mahr. Mahr (also sometimes called sadaqa) is "a sum of money or some other economically valuable asset that a husband must give to a wife." Mahr is a religious obligation, prescribed by the Quran, that has been incorporated into the civil law of many Muslim countries, including Iran. A mahr also is included in the marriage contracts of many Muslim Americans who choose, like the couples in these cases, to be married in an Islamic marriage ceremony….

The precise nature and amount of the mahr varies in each contract. [The mahrs in these two cases were worth nearly $500,000 and $225,000. -EV] Every Islamic marriage contract must have a mahr, however, and if one is missing, then it will be implied.

The mahr is a personal obligation of the groom to the bride, which, "[g]enerally speaking[,] … is divided between an immediate gift to the wife" (the "prompt" or "immediate" mahr) "and a deferred payment." In principle—or sometimes, under the explicit terms of the contract—the wife is entitled to the deferred mahr upon demand at any time following the marriage, and "any delay is a matter of contractual forbearance on her part." In practice, though, "[s]uch delays are standard," and the deferred mahr typically becomes "due upon divorce or the husband's death."

The parties' experts offered at least two explanations for the historical development of mahr in Islamic marriage contracts. Each explanation is grounded in features of Islamic law that differ from the law of Maryland.

First, a mahr can operate as a disincentive for a husband to exercise his disproportionate power to divorce his wife without cause under Islamic law. Traditionally—and today, "where [] Islamic law has been adopted as the secular law of a jurisdiction"—"a husband has a virtual automatic right to talaq, []i.e., to divorce his wife by acknowledging 'I divorce thee' three times[]." "[T]he wife only has a right to talaq if it is in the written marriage agreement or if [the husband] otherwise delegates that right to her." Otherwise, she may obtain a divorce only with her husband's consent or for cause from an Islamic judge. If the husband invokes his right of talaq, however, then the mahr generally becomes payable immediately.

Second, because Islamic law does not recognize marital property, a mahr can provide a wife with some financial security in the event of divorce or the husband's death. Under traditional Islamic law, upon dissolution of a marriage, the wife is not entitled to a disposition of marital property, nor does she have any claim to alimony or child support. Absent operation of a civil law providing such rights, the mahr is thus the exclusive compensation payable to the wife upon divorce.

Although the governing laws in this country recognize marital property and do not recognize talaq divorces, many American couples continue to enter Islamic marriage contracts that contain mahrs….

The court concluded that mahrs can be enforced under "neutral principles of law," like secular prenuptial agreements. Under Maryland law, such agreements are enforceable, though under special rules applicable to agreements (whether secular or religious) entered within "confidential relationships":

[Under Maryland precedents,] "… a confidential relationship exists, as a matter of law, between the parties entering an antenuptial agreement." … [T]he existence of the confidential relationship means that: (1) "the burden of proof correctly falls upon the party seeking to enforce the agreement"; and (2) the "correct standard for determining the validity of an antenuptial agreement [is] … whether there is an 'overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or procurement.'"

The party seeking to enforce the agreement may show the absence of overreaching in a number of ways. He or she may (a) "document[] a full, frank, and truthful disclosure of his or her assets and their worth before the antenuptial agreement is signed," (b) demonstrate the other party's "knowledge of th[ose] assets," (c) show that the agreement "was not unfairly disproportionate … at the time the agreement was entered," or (d) otherwise prove that "overreaching did not occur." With respect to the last option, the Court suggested that "the trial court may consider such factors as the extent of the disclosure (if any), whether the attacking party had the opportunity to seek legal advice before signing the agreement, and whether the attacking party voluntarily and knowingly relinquished his or her rights." …

The mahrs were not inherently "void as against public policy":

First, properly construed and analyzed as contracts between parties in a confidential relationship, the mahrs do not conflict with public policy because Maryland law expressly permits couples to enter contracts that alter the presumptive consequences of the dissolution of a marriage….

{To avoid any misunderstanding, we add a cautionary note about our holding today…. [O]ne purpose attributed to mahrs—as they developed in societies governed by legal systems that do not recognize marital property—is to provide women a means of support after divorce or the husband's death. As a result, some have argued that entering a mahr constitutes an implied waiver of rights to marital property, a monetary award, or spousal support. Neither Dr. Nouri nor Mr. Ghazirad has advanced that argument here. In any event, based on our holding that mahrs may be enforced only if their purely secular terms satisfy the heightened standards applicable to agreements entered into by parties in a confidential relationship, we do not see how any such purportedly implied waiver could ever be enforceable in a Maryland court.}

Second, the mahrs do not unreasonably encourage divorce. Neither of these mahrs is expressly contingent on divorce. Thus, In re Marriage of Noghrey, 215 Cal. Rptr. 153 (Ct. App. 1985), on which Dr. Nouri and Mr. Ghazirad both rely, is inapposite. There, the California intermediate appellate court addressed the enforceability of a ketubah [Jewish marriage contract] provision that promised the wife "$500,000.00 or one-half of [the husband's] assets, whichever is greater, in the event of a divorce." The court held that the provision "encourage[d] and promote[d] divorce" and was therefore "contrary to the public policy of th[e] state and unenforceable." It reasoned that the agreement "constitute[d] a promise by the husband to give the wife a very substantial amount of money and property, but only upon the occurrence of a divorce." If "the husband suffer[ed] an untimely demise," conversely, then that would "nullify[] the contract, and the wife's right to the money and property." The ketubah provision thus "encouraged [the wife] … to seek a dissolution, and with all deliberate speed," to obtain the amount promised. { Neilson v. Neilson, 780 P.2d 1264 (Utah Ct. App. 1989), and In re Marriage of Dajani, 251 Cal. Rptr. 871 (Ct. App. 1988), … are to similar effect as Noghrey ….}

Here, unlike the agreement in Noghrey, neither of the agreements is expressly ontingent on divorce, nor is either subject to cancellation upon the husband's death. Moreover, one purpose for which mahrs exist generally is to discourage divorce, and nothing in the record of either case suggests that the prospect of a mahr payment actually encouraged the breakup of either marriage. Although the contents of most premarital agreements could, depending on circumstances, be deemed to encourage one party or the other to seek a divorce—or at least to make that path more palatable—Dr. Nouri and Mr. Ghazirad have not demonstrated that mahrs generally, or these mahrs specifically, unreasonably "encourage[d] or promote[d] dissolution" of marriage in violation of public policy….

And the court expressed skepticism about the argument that the contracts violated the Equal Protection Clause "because, as a matter of Islamic religious practice, they are payable only by men to women, and never by women to men" (though it ultimately didn't fully resolve it, because it hadn't been properly made):

The essence of the argument is that under Islamic religious law, a mahr is an obligation that runs from a man to a woman, and never the other way. As we have discussed at length, however, the duty of a secular court is to interpret the secular terms of a contract, not Islamic (or any other) religious law.

We do not consider, much less pass judgment on, any religious doctrines or personal beliefs that may have motivated parties to enter a mahr or craft its terms, and we will enforce the secular terms of the agreement provided they are valid under neutral principles of law and do not offend the laws or public policy of our State or federal governments. Indeed, a Maryland court would not treat any differently an identically-worded provision running from a woman to a man or between individuals of the same sex and gender, whether contained in an Islamic marriage contract, a contract arising in a different religious context, or an entirely secular agreement.

Here, the secular terms of Dr. Nouri's mahr require him to pay Dr. Dadgar a certain sum. Enforcing one spouse's agreement to make a payment to the other does not offend guarantees of equal protection.

NEXT: Josh Duggar ("19 Kids and Counting") Lawsuit Thrown Out

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  1. How is it possible to recognize the mahr as a prenuptial agreement without also recognizing both the talaq divorce and Islamic property rules?

    1. Because the mahr is a simple contract and requires no religious interpretation?

      1. Exactly. An analogy: Say a father leaves his estate 2/3 to his son and 1/3 to his daughter, motivated by his understanding of his obligations under Islamic law. A court can properly probate that estate, because it would just be applying neutral principles of will interpretation and administration, which include a testator’s freedom to leave his property as he wishes. Likewise for contracts.

        1. OK. But the fact that a wife can’t file for divorce is a fact that also needs no religious interpretation — can she waive that American right under the auspices of the contract of the Islamic marriage?

          I see three issues here — the first being the Libertarian argument that no contract can be in violation of public policy. If you want to sell your kidney for a million dollars, fine…

          And the second is severability — unless you consider the entirety of the Islamic marriage to be a pre nup, how do you “cherry pick” pieces out of it while ignoring the rest?

          A third would involve child support — would any state-mandated obligation come out of the mahr (which is intended to provide for that) or would the father have to pay the mother *twice* for this?

          1. Some rights are waivable by contract and some aren’t. If the right to file for divorce is waivable, then it doesn’t matter why the person is waiving it. If the right isn’t waivable, it also doesn’t matter. And the court won’t enforce the waiver.

            Courts already do not enforce contracts that are contrary to public policy. You haven’t stumbled on some new or interesting issue. This gets adjudicated everywhere in the country, all the time.

            Severability is not some new issue in contract law, either. There’s a robust set of rules (not necessarily consistent in every jurisdiction) to address severability.

            1. NToJ is right on all this, I think. I’ll also add that all the mahr cases I’ve seen treat the mahr as a separate contract from the marriage contract (just as a secular prenup is so treated).

              I also haven’t seen any mahr cases in which the mahr was seen as a contractual limit on child support. That might in part be because, to my knowledge, nothing in the typical mahr expressly provides for that. It might also be in part because prenups usually can’t resolve child custody or child support questions, since those are seen as related to the interests of nonparties (the children).

          2. I am not aware of any jurisdiction that will enforce any child support agreement in a pre-nup. The theory is that the parents cannot the waive the rights of the child (which statute creates the right to child support predicated upon who has custody of the child).

  2. The mahr is not valid unless the wife agrees.

    Mahrs needs women.

    1. Yes, but what does the woman agree to?
      And is her agreement also legally enforceable?

    2. Excellent! You could also have taken the David Bowie route.

    3. Wow. Nicely done, Eddy!!! 🙂

  3. Americans should spend less time planning weddings and more time working on prenups. Don’t let moron state legislators and idiot family law judges and loser lawyers decide what happens to your life! Couples need to take some time to come up with a prenup that sets up expectations for what will happen in the marriage and update it after every major event in the couple’s life.

    1. Be mindful of the jurisdiction in which you opt to have any pre-nup enforced. There are some like New York or Massachusetts where judges will invalidate them, even if otherwise enforceable, if they consider it to be “unreasonable” or “unfair” for one party. Disclosures are also a stumbling block in many of these cases. I’ve seen cases where disclosures were made in good faith but failed to include some details such as copies of titles or deeds that have led to the whole agreement being unenforced.

      Keep in mind too if one party has a substantially higher income then the other that is going to become an issue come any divorce. And in most jurisdictions you can’t have one party waive spousal support. And also beware of this if one spouse takes a long break from employment to say stay at home to raise kids.

      If you are thinking about getting married, don’t spend all your days planning for an eventual divorce, but you should be aware and plan for the possibility. If you do divorce your long term financial health is going to pivot on any pre-nup and could encompass life milestones such as your ability to retire. I’ve seen many a sad sack (men and women) who wish they would have spent more time on finances before getting married after getting the short shrift in a divorce.

    2. “update it after every major event in the couple’s life”

      Ohio requires [or at least used to when i did some family law] it be executed before marriage to be valid.

      1. Great comments. The context would be a society in which prenups are encouraged and a couple planning out their expectations for their marriage. So if they plan out a wedding they should want to plan out their marriage. So maybe we should have more marriage planners helping draft prenups and fewer wedding planners planning weddings.

        1. I think if the government is going to heavily regulate the dissolution of the marriage contract then there is really no excuse for their not to be more regulation to enter into a marriage contract. The libertarian in me asks why does the government even regulate marriage in the first place (yes I am aware of the arguments and largely agree with most). But, I think a sizable portion of the population have no idea what marriage means from a legal/financial standpoint and how absolutely devastating a divorce can be financially for both parties for many years after resolution. I would be a fan of requiring pre-marriage counseling and financial planning before the state will issue a marriage license.

          1. I think a sizable portion of the population have no idea what possessing a weapon means from a legal standpoint and how absolutely devastating unauthorized weapons’ usage can be legally for all parties for many years after the incident. I would be a fan of requiring weapons training before the state will issue a weapons license.

            So I guess you’ll agree with this too?

            1. He draws an interesting conclusion from the premise that today’s anything-goes divorce laws are OK.

              As for me, I’d focus on the divorce laws themselves, not on defeatist talk about simply accepting the status quo.

              1. There is something to be said about requiring some kind of fault (or at least handicapping a potential equitable distribution if you want out of a marriage without fault). In reality though no fault is here to stay so we should at least look at the front end of the marriage contract.

            2. To some extent, but you have a constitutional right to a weapon (if you agree with that interpretation of the 2nd Amendment and even if you don’t I it is not a far fetched component of ordered liberty to believe you have some right to defend yourself) so it is a bit different there. But in a shall issue type framework I think requiring basic training to possess certain weapons is OK.

              1. I wanted to say though that rarely do those who favor regulation of weapons (read firearms) support any good faith safety measures. They are all designed with the end goal in mind which is to limit the availability of firearms and make it as difficult as possible for a person to acquire them. Little of these “safety” issues have anything to do with actual safety. Hence why the NRA and everyone of the same mindset just engages to blanket opposition when these are brought up as potential public policies. If liberals were ever genuine in promoting actually safety that message got lost in translation 30 years ago. Don’t expect people to suddenly think you are bringing such issues to the table now in good faith.

  4. The English courts some time ago ruled that a mahr is not a prenuptial agreement and hence is not invalid under a prohibition against prenuptial agreements, on grounds that the consideration involved is having a specifically Islamic wedding ceremony, not the marriage itself.

    Similar reasoning could be extended to ketubahs. The consideration for a ketubah is, arguably, not the divorce itself but a specifically Jewish divorce, a separate ceremony independent of the civil divorce and, under the First Amendment, not subject to public policy.

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