"Shariah Law Does Not Apply" -- But American Law Does

A Michigan appellate court correctly enforces a Muslim couple's "mahr" agreement, entered at the time of the couple's marriage and calling for the husband to pay certain funds to the wife -- it's a valid contract, enforceable under secular law, regardless of its religious motivation.

From Ali v. Syed, decided yesterday by the Michigan Court of Appeals:

In 2012, defendant approached Mohammed Ali and asked permission to marry plaintiff, Mr. Ali's daughter. Defendant and Mr. Ali negotiated the terms of the arranged marriage. Mr. Ali proposed that defendant could marry his daughter if defendant paid her $51,000, a payment the parties referred to as mahr, a traditional component of Islamic marriages. Defendant agreed to the payment proposed by Mr. Ali. Plaintiff considered defendant's offer of marriage, on the financial terms negotiated by her father, for approximately one year. Plaintiff ultimately decided to accept defendant's proposal and the parties married in 2013.

It is uncontested that plaintiff and defendant had only a verbal agreement for payment of $51,000, in consideration of marriage, until the day of their marriage ceremony in the state of Illinois. During that ceremony, the parties signed a document that placed the contract to marry in writing. The one-page document signed by the parties was titled "Marriage Certificate." The document stated that "The Groom Khaja Naseeruddin Syed age 30 solemnly proposes to marry Miss Nausheen Farnaz Ali and take her as my wife and agree to pay Mahr of $51,000 Later." Furthermore, the document stated that "The Bride Nausheen Farnaz Ali age 26 Solemnly accept the proposal of Mr. Khaja Naseeruddin Syed to take me as his wife with agreed Mahr." …

During the course of the marriage, defendant made several payments, totaling $3,900, toward the $51,000 mahr. In 2016, plaintiff filed an action for separate maintenance and defendant filed a counterclaim for divorce… During the divorce trial, plaintiff asked the trial court to enforce the contract to marry and award her $47,100, the unpaid amount of the mahr.

The trial court concluded that the parties executed a valid, simple contract and entered a judgment in plaintiff's favor in the amount of $47,100. In addition, the trial court granted the parties a judgment of divorce, denied plaintiff's request for spousal support, and divided the parties' marital assets….

Shariah Law Does Not Apply

Defendant … argues that the contract states on its face that it was made under Shariah law and that it was not made under any state law. Defendant argues that the contract merely provides for a religious obligation rather than an enforceable contractual obligation under Michigan law. Defendant further argues that, under the ecclesiastical abstention doctrine, the courts of the state of Michigan lack jurisdiction to enforce Islamic marriage contracts. We disagree.

The trial court clearly stated that it was not applying Shariah law, but was applying Michigan law to the parties' contract. Despite defendant's argument that the contract was a ceremonial document governed only by Shariah law and not by the civil law of any state, we also stress that we are not interpreting or applying the contract between the parties under Shariah law, but are applying Michigan law to the review of the parties' contract and the judgment of divorce entered by the trial court….

In this case, neither the trial court nor this Court is required to resolve ecclesiastical questions. The trial court did not claim any power to grant the parties a divorce under Islamic law, but only the power to grant the parties a civil divorce under Michigan law. The trial court did not claim any power to decide the parties' respective religious obligations under the tenets of their faith tradition, but only decided the parties' respective obligations under long-established principles of Michigan contract law. Because this case does not require the resolution of any ecclesiastical questions, we conclude that defendant's argument is without merit….

This strikes me as exactly right. American courts don't enforce Muslim law (or Jewish law or any other religious law) as such; they enforce American law (here, Michigan law). But one important American legal principle is that contracts are enforceable, so long as they can be enforced without resolving theological questions -- and that's true whether or not the contract is motivated by the parties' religion, or tracks that religion's principles. For more, see my Religious Law (Especially Islamic Law) in American Courts, 66 Okla. L. Rev. 431 (2014), which also talks about Sharia and employment law, family law, and more.

Comments

[a ab abc abcd abcde abcdef ahf]

Where are the sex trafficking task forces when we need them?

If any of these people go to the Super Bowl, they are in deep doodoo.

[Eddy]

This sounds fair. It would be one thing if the contract said - "wife to be supported as provided in Sharia law," then the secular courts could say, "defining sharia law isn't our job." But if, based on a religious motivation, they say "fifty one thousand dollars," then that's a term the secular courts can interpret without meddling in religious affairs.

[EscherEnigma]

That's not shariah law, that pre-nuptial contract law.

[Nigel Kearney]

If you're applying US law, Isn't the money an asset acquired during marriage and therefore the debt should be settled before remaining assets are divided? Therefore it should make no difference whether it is paid or not. Surely they aren't giving her half his stuff plus $51k.

[a ab abc abcd abcde abcdef ahf]

It's just a straight-up contract.

[Robert Beckman]

Exactly, they're giving her half of THEIR stuff plus $51 thousand, exactly how Amy other prenuptial agreement would work under those terms.

[Heresolong]

More like a pre-nup I would think. You have $51,000. Anything else, assuming Michigan is a community property state, goes halves. Unless community property trumps prenuptial agreements. I wouldn't think so, but then I'm not a lawyer. On the other hand, if it did, any really rich person would have to be insane to marry or live in a community property state.

[EscherEnigma]

Anything else, assuming Michigan is a community property state, goes halves.

Michigan isn't a communal property state.

[lucia_l]

Even when a state is governed by community property laws, a brand spanking new spouse doesn't gain ownership of 1/2 your current assets on the date of marriage. The two spouses jointly own what is earned during the marriage. If the rich person has $100 million in gold, sits on their laurels and earns nothing while the poor person works and earns $100K a year and somehow manages to sock that away, they shares 1/2 the $100 K. Meanwhile, the rich person still owns all their gold.

Since most rich people don't have all their money in gold, if they want to minimize how much might be turned into income that is treated as joint, the need to talk to someone who knows precisely how the community property law works and act accordingly. Moves don't need to be as extreme as freezing it all into gold, but things can be done.

[Ben of Houston]

Nigel, your math is off due to order of operations. Let me explain.

If they have $100k in assets.

No Contract - He gets 50k, she gets 50k

With Contract - She gets 51k. There is 49k remaining. This is split 29.5k to him and 29.5k to her.
In total, she gets 70.5k, he gets 29.5k

[Jim Logajan]

You're missing the deduction of the plaintiff and defendant lawyers. They get a piece of the assets too.

[Nigel Kearney]

What I'm missing is why the 51k is not an asset acquired during marriage and therefore also split 50/50.

[EscherEnigma]

From the quoted article:

In addition, the trial court granted the parties a judgment of divorce, denied plaintiff's request for spousal support, and divided the parties' marital assets....

Without digging into the details, it sure sounds like the mahr was treated as a separate issue from that of marital assets.

That said, Michigan isn't a communal property state, so "half" was never the state's promise.

[Navyhbs]

The $51,000 obligation would seem to me to run from the husband to the wife (not the marriage to the wife). Wouldn't the first step be to divide the marital assets ($50,000 each), and then require the husband to pay $51,000 to the wife? She'd end up with $101,000 and he'd owe $1,000?

[Lee Moore]

Is the intention to form legal relations not a requirement for a contract under Michigan law ?

Assuming it is, then "Defendant argues that the contract merely provides for a religious obligation rather than an enforceable contractual obligation under Michigan law" presumably has to be answered on the facts - did the parties intend to create a legal obligation or a merely a religious obligation ?

[gormadoc]

I'm betting it's both. While Sharia law is based on the Quran it is still the law. It's rather similar to Rabbinical law in that way, though Sharia is held to be more divinely inspired. Marriages cannot be legally recognized if they don't meet the religious requirements in Islam; the law and religion are one and the same.

Mahr predates Sharia anyway as a legal requirement. There are cognates with other ancient Near East cultures.

[Bob from Ohio]

"Mahr predates Sharia anyway as a legal requirement."

Yes, its tribal in origin, not religious.

Not too long ago, even the West had a dowry system Did no one ever see The Quiet Man with John Wayne?

[EscherEnigma]

Still does in the "engagement ring" tradition. A lot of folks don't think about it these days, but part of the tradition (after it was started by jewelers, anyway) was that it was the woman's insurance against a dishonest man. He breaks it off, the ring (and what she can pawn it for) is hers to keep.

[gormadoc]

While it's a popular belief, it might not be the case. Outside of rich southern Europe normal people probably didn't do much in the way of rings, and when they did, they weren't necessarily expensive. The people buying the expensive rings were rich people who had other methods of insurance (politics and titles) at their disposal. What purpose the engagement ring had is something we might never be able to confirm.

[EscherEnigma]

Like historically? Sure, who knows, not I.

But in case you missed it, what I said was: "[...] part of the tradition (after it was started by jewelers, anyway) was [...]". The tradition I'm talking about is less then a century old, and is unconnected to history in any serious fashion. And that the ring is kept by the no-longer-bride-to-be is a matter of case law, not speculation.

[gormadoc]

It's a good illustration of common social rules across societies. It's easy for a dude to screw up a woman's life through sex or marriage (especially in the Middle East), so pretty much every society came up with formalized agreements that usually entails financial responsibilities.

This dude decides "screw that" and tries to weasel out but fails, in the process reaffirming why prenups are a thing. It's really kind of comical.

[Bill Poser]

The only unusual aspect of this case is that the husband was allowed to owe the mahr. I believe that it is normally paid in full at the time of the marriage.

[Jimmy the Dane]

Not my practice area but have done some consults on pre-nups just in the course of doing civil law. I'm surprised that the court would enforce a payment in lieu of marriage and have never heard of such a practice.

Pre-nups deal almost exclusively with separate, individual property that was acquired before the marriage date. Some states will allow for a specific one-time payment for items such as waiving spousal support, but never for just marrying.

Further, almost every jurisdiction requires particular financial disclosures, opportunity to consult separate individual counsel, and for the pre-nup to be made in writing, among other considerations, in order for it to be enforced. I know some jurisdictions will allow verbal agreements to be enforced in limited circumstances, but I have never heard of one being negotiated by someone who was not a party to the marriage (the father appears to have done so on behalf of his adult daughter in this case).

This is a strange case.

[Junkie]

It sounds to me like at the time of marriage, it was put down in writing.

[Dissojudge]

Jimmy the Dane is right. 28 U.S. states have adopted the Uniform Marital and Premarital Agreement Act, but of course as with most uniform acts, not uniformly. California just has what it calls the Uniform Premarital Agreement Act ("UPAA"), and it governs agreements between prospective spouses made in contemplation of and to be effective upon marriage. The Michigan Mahr in Ali v. Syed appears to fit right into that, and would fail miserably to be enforceable under California law for reasons Jimmy states and more. Shariah has nothing to do with the non-enforceability of that Mahr under the UPAA because deciding whether that Mahr complied with the UPAA wouldn't require interpreting Sharia law.

Eugene might suggest to students on law review that evaluating the enforceability of religiously inspired premarital agreements, including Mahr and ketubah agreements, across the 50 states would probably make for a good law review article or note. But confess I haven't searched to see if such articles already exist.

[Jimmy the Dane]

Well, I should have read the opinion (which is short for those who haven't) because the court cites case law particular to Michigan that allows for payment in contemplation for marriage. The cases are dated, but still appear to be good law at least from a quick Westlaw search. Here is an example the court cites:

It has long been the law in this state that the "promise to marry, followed by
consummation, furnished a valuable consideration" for a contract to marry. Storey v Storey, 275
Mich 675, 679; 267 NW 763 (1936) (recognizing a woman's right to retain the monetary
consideration exchanged for her agreement to marry, when she performed her promise to marry).

I don't think the given the modern age and application of equal protection this kind of analysis would fly anymore if directly challenged. These days a marriage is an agreement between two parties who sit on equal ground. Interestingly the court finds that is contract is NOT an attempt at a pre-nup, but a separate contract for marriage.

I would think that if the Michigan Supreme Court were given a chance to overrule this line of cases, it might very well do so. It relies upon dated stereotypes of men and women which just do not persist in the modern age. It also really smacks in the face of equal protection as it essentially holds marriage in a higher state for women then it does men.

[Eugene Volokh]

The Michigan rule seems to be equally applicable to men and women; to be sure, men may be more likely to pay something like a dowry (or a "bride-price") to marry a woman than women would be to pay to marry a man -- but disparate impact doesn't make for an Equal Protection Clause violation. See Personnel Adm'r v. Feeney (1979). And while courts might have had stereotypes of men and women in mind when they approved of such contracts, they are just a special case of the broader principle that parties of either sex are entitled to contractually bind themselves, so long as the contract isn't against public policy.

[Jimmy the Dane]

Eugene -

I really don't see how such a marriage contract providing one party to pay the other party in terms of some type of compensation would survive intermediate scrutiny. What government interest does it forward? Also intermediate scrutiny does not completely throw out disparate impact.

Also where does the public interest lie? Every state is now a no-fault divorce state. Perhaps there might have been some public interest when divorce was "for cause" only or when women historically were barred from many sectors of the workforce. I don't see any legitimate public interest in not treating parties who are going to enter into marriage as anything but equal. I would even go as far to say that any sort of contract is unconscionable giving the modern perception of genders and the nature of marriage today.

Trying to rely on such a line of cases from the early 20th century is sort of like attempting make the argument that Dred Scott is still valid law because it has never been explicitly overruled.

[Eugene Volokh]

You don't need intermediate scrutiny. The law doesn't discriminate based on sex, so it's disparate impact is irrelevant; that's what Feeney tells us. (Very many laws end up having a disparate impact based on sex, by the way.) It does treat the parties as equal -- it provides that contracts in contemplation of marriage are enforceable, as are other contracts.

Now the contract itself does give a benefit to the woman. But private contracts aren't subject to Equal Protection Clause scrutiny. A father might sell his interest in a business to his son rather than his daughter, for instance, and that contract will be fully enforceable, with no need for any intermediate scrutiny. (If a father hires his son rather than his daughter, based on sex, that might violate state employment antidiscrimination statutes, but there are no state statutes barring the contract involved in this case.)

[Jimmy the Dane]

The law does not facially discriminate against sex, but it functionally does. The Constitution does not have to turn a blind eye to implementation reality of a policy. The government cannot have a law that says "This law is in no way meant to discriminate against X" but then has the effect of doing just that. No disparate impact analysis is required there.

And sure the enforcement of contracts is bound by Equal Protection. A court ordering it be enforced is state action.

[David Nieporent]

The law neither facially nor functionally discriminates based on sex. All you're doing is trying to repackage a disparate impact argument here.

[ReaderY]

I found the opinion curious. The opinion classified the Mahr as a contract to marry under Michigan law. As it noted in a footnote, the Michigan legislature abolished the cause of action of breach of contract to marry by statute. But the defendant's lawyer never raised this issue or cited the statute, thereby waiving what might well have been a fully effective defense. The issues that were much splashier but, as Professor Volokh notes, not very likely to succeed legally.

If the defense had been raised the issue would have gotten more interesting. English common law, followed by some states, has held that a Mahr is not a contract to marry per se but instead an agreement to have an Islamic wedding ceremony, and have said that it is therefore enforceable, with separate consideration on both sides, even though a contract to marry as such is not.

If the proper defense had been raised, the plaintiff could then argue that the English rule regarding the civil meaning of a Mahr ought to apply. The court would at least have been able to make a decision on what I think the real civil-law issues are.

But instead, due to terrible lawyering, what we have instead is an appelate court ruling, uninformed of the issues and in my view incorrect, that a Mahr is a pure contract to marry, unenforceable whenever the defense remembers to raise the issue. The ruling therefore is a vey Pyrric victory for people who wish to enforce Mahrs in Michigan civil courts.

[ReaderY]

It could be argued that the English rule is a little bit of stretch, and it's not the only way of looking at a Mahr. But the traditional view has been that the law stretches a little bit, where it can, to accommodate traditional religious arrangements that don't hurt anybody. It could be argued (perhaps very easily as arguments about how other people should live their lives tend to be very easily made), that a husband's agreement to pay a wife a sum of money violates some ideological or moral principal or other. But I think it's very hard to argue that it actually hurts anyone.

[Eugene Volokh]

This wasn't a tort lawsuit for breach of promise to marry (the antiquated tort abolished by statute, under which a jilted fiancee could sue because of a broken-off engagement). It was a contract lawsuit for breach of contract accompanying a marriage. The promise to marry was carried out, by both parties; it's the promise to pay money that wasn't carried out. The two are very different kinds of claims, and there's no reason to think that the statute abolishing the breach-of-promise-to-marry tort, even if properly raised, would have been seen as barring this contract claim.

[Dissojudge]

I agree that a contract to pay one spouse money upon marriage can be enforced--I once supervised the videotaped signing of such an agreement where the payment due upon marriage was $10,000,000, and more later-- but the agreement would need to satisfy the state's requirements for prenuptial agreements to be valid and enforceable. Those requirements may include financial disclosures, representation by counsel for both parties unless representation is expressly and properly waived, and more. Michigan may have no such requirements but California sure does. I've enforced many prenuptial agreements but enforcement is not at all automatic. California case law finds numbers of prenuptial agreements to be partially or entirely unenforceable. People who want to contract for a payment due upon marriage should first consult qualified counsel in the state where they're going to marry.

[Drewski]

I'm not sure I understand how someone else's marriage can be a valid consideration. If I enter a contract offering as consideration that a Senator will vote a particular way or that my neighbor will wear a red shirt on Wednesday, I feel like it would be unenforceable.

One's own marriage as consideration makes sense for some purposes, such as accepting an engagement ring. Another person's acts as a contingency in an otherwise valid contract ("if X marries Y then all payments agreed to are doubled") seems okay. But as sole consideration? I don't buy it.

[jph12]

I think you are misunderstanding the facts (or I am misunderstanding your comment). While her father negotiated the deal, the contract itself was between the husband and wife and the payments were from the husband to the wife.

[ReaderY]

The plaintiff of the case is the ex-wife and the defendant the ex-husband. How is his not about their own marriage?

[Phanatic]

Is "I'll marry you if you pay me $50,000" a legal contract under secular law in the first place?

[gormadoc]

"Yes", is what this exact court determined, in this very decision, affirming a lower court.

[MaverickNH]

The struggle here is whether a traditional Marh, not a custom in America today, is codifiable as a contract by American Law. Some wish such "foreign" traditional customs, interpreted as "purchasing a female as a wife" would unacceptable if written as a contract. The observation is the family (or Father in a patriarchal culture) can sell his daughter as a wife (at minimum legal age) with the sale as a contractual obligation. I can see the moral objection, even if the Contract Law objection is strong.

Could one contractually obligate one's Son to a lifetime of work with room and board without compensation? My son joined the Army, but only for 3yr and without my involvement as he was 18yr of age. Can a Daughter be contracted to a Husband for cash and considerations? For a fixed duration or 'until death do they part'?

[Jimmy the Dane]

As I stated above in a response to Eugene I can't see how enforcing such a contract does not run afoul equal protection (even at intermediate scrutiny) and also, in the 21st century, is unenforceable as a matter of public policy.

if someone "playing devil's advocate" can come up with a good reason why a court should enforce such a contract please opine because I can't come up with a single one.

[ReaderY]

Because, as in any contract, it's what the parties agree to? And why is there a public policy to people getting married their way? Why are you imposing your morality on other people?

[Jimmy the Dane]

Contracts are more than just what two parties agree to. If you know anything about contract law then you should know certain covenants are bound into just about every contract either by common law or statute.

[gormadoc]

Because it's a contract both parties entered willingly and not under duress. I don't see why it shouldn't be enforced.

[Jimmy the Dane]

Spoken like a true libertarian...."as long as two people consent"....unfortunately that is not how contract law works. I would argue that it is both an unconscionable contract and violates public policy to enforce. The modern version of marriage is that two co-equals enter into a partnership that can be severed without cause. Enforcing this type of contract also implies antiquated stereotypes that are also against public policy. That is unless you think the state has a legitimate interest in treating women as second class citizens.

[jph12]

"The modern version of marriage is that two co-equals enter into a partnership that can be severed without cause."

Nothing about this case changes that. She spent a year considering his offer. She accepted it. They got married. Shit happened. They got divorced.

"Enforcing this type of contract also implies antiquated stereotypes that are also against public policy. That is unless you think the state has a legitimate interest in treating women as second class citizens."

He had to pay her to be able to marry her. How is that treating her like a second class citizen?

[ReaderY]

Also, intermediate scrutiny applies to state action. What business is it of judges to scrutinize how married people conduct their private lives? If the man is on top too much of the time, what level of equal protection scrutiny do you think applies?

[Jimmy the Dane]

The courts enforcing a contract is state action.

[ReaderY]

A difficulty with your position is the body of caselaw involving engagement rings. In a typical engagement, the ring is connected to an agreement to marry; states often have rules about what happens to the ring if the engagement is broken off, if the engagement ring turns out to be fake, etc. Under your theory, having the state resolve an engagement rimg issue would be just as much a violation of public policy as if money were used instead.

What's the constitutional difference between an agreement to give a ring and an agreement to give money? And are you really willing to say that the constitution prohibits legal enforcement of rules and agreements regarding engagement and wedding rings whenever a single ring is involved?

None of this is uncommon to Western culture. Financial agreements incidental to marriage have hardly been uncommon in Western history, or American law.

[Jimmy the Dane]

Actually it is quite different.

The example of a ring is usually considered by most state courts to be a conditional gift. That is a gift in contemplation of executing a marriage contract. Presumably when the marriage contract is executed the ring will become joint property unless provided for otherwise in a pre-nup. And if that is the case just about every state provides for many protections such as financial disclosures, right to consult individual counsel, advanced notice, etc. in order for a pre-nup to be enforceable.

Here we have a contract that requires a payout straight up for marrying. It appears as though the trial court treated it as separate property too. That is far different than a condition gift and has none of the protections that just about every legislature has decided are in the public interest when it comes to executing a pre-nup.

Paying someone cash, outright, to marry is bad public policy. Further the justification is based upon antiquated stereotypes of the sexes and has policy implications that clearly treat men and women differently. (Even the case law cited refers to "women"). If people want to get married it shouldn't be for the promise of a cash payment. That is against the public policy and is questionable under an equal protection analysis since it has a clear detrimental effect on men.

[David Nieporent]

if someone "playing devil's advocate" can come up with a good reason why a court should enforce such a contract please opine because I can't come up with a single one.

Because the parties voluntarily entered into it, it does not affect the rights of any third party, is entirely conscionable, and violates no public policy.

The burden is on you to come up with a reason why a contract shouldn't be enforced. And all you've done is handwave about equal protection without any arguments about how this contract in any way discriminates.

[Jimmy the Dane]

I already did:

It relies upon antiquated stereotypes of women and men along with that of marriage itself.

Enforcing such contracts is suspect under equal protection since the detrimental effect is going to be almost universally applicable to men.

Procedural safeguards that make pre-nups enforceable are there for a public policy reason. This "cash for marriage" contract is essentially an "end run" around those and thus is contrary to established and preferred public policy when it comes to assets and marriage.

No legitimate public interest is served by enforcing "bride price" contracts even if a court would do so on equal footing if it were a "groom price" contract. Marriage is that of co-equals and any dissolution of pre-marital or marital assets agreed to before marriage should be enforced solely through the process pre-nuptial established by legislatures and courts.

Not very hard to understand.

[jph12]

"Enforcing such contracts is suspect under equal protection since the detrimental effect is going to be almost universally applicable to men."

You said it was the women being treated like second class citizens. Now it's the men being disadvantaged?

"No legitimate public interest is served by enforcing "bride price" contracts"

Apparently the State of Michigan disagrees.

[David Nieporent]

It relies upon antiquated stereotypes

The constitution does not ban "relying on stereotypes." It bans unequal treatment. So, for instance, in Craig v. Bowen, the law had a lower drinking age for women based on sexual stereotypes?but it wasn't the belief that was a problem; it was the differential treatment.

Enforcing such contracts is suspect under equal protection since the detrimental effect is going to be almost universally applicable to men.

First, you haven't identified any "detrimental effect"; second, before you said it was treating women worse. Which is it?

Procedural safeguards that make pre-nups enforceable are there for a public policy reason.

Prenups generally work like any other contract. They are scrutinized a bit more closely than commercial contracts for things like duress or unconscionability, but there's nothing so special about them. There are a few minor rules - in NY, they have to be notarized; in many states, there must be a full disclosure of assets that accompany them - but these aren't the sorts of things that would make this Mahr contract unenforceable. There's no "end run." (In any case, that's a question for the legislature, not an equal protection argument.)

There's always a legitimate public interest in enforcing a contract, and this is a process established by legislatures and courts. (That's a circular argument.)

[Jimmy the Dane]

1. The differential results you are talking about were based upon antiquated notions of the sexes.

2. I think it has a detrimental effect on both sexes. First it treats women functionally different and second class as if they require the protections of the state by enforcing "bride price" contracts. Second, it is detrimental to men as in equal protection and in terms of public policy because on a practical basis 99.9% of the time it will be men who are expected to pay money to enter into the covenant of marriage.

3. You both understand and are dismissive of the procedural safeguards built into the enforcement of pre-nuptial agreements. Almost every state requires detailed financial disclosures, the opportunity to consult independent counsel, some require that the contract be "fair and equitable" to both parties, the agreement must be signed a certain amount of time before entering into marriage (duress), and many other requirements. There are also limitations to the amount of which pre-martial and marital assets can be set aside or divided depending upon the length of marriage. These are not "minor" differences when it comes to enforcing a contract. The fact that legislatures and courts have laid out such strict standards further indicates that the level of scrutiny applied to contracts involving marriage is much higher than that of a standard business agreement.

[David Nieporent]

1. The differential results you are talking about were based upon antiquated notions of the sexes.

I wasn't talking about differential results; you were. I was only talking about differential treatment.

I think it has a detrimental effect on both sexes.

I think you don't understand the concept of "detrimental effect." It's a relative term, not an absolute one. And your arguments are nonsensical. it treats women functionally the same. By definition. You are still confusing disparate impact with disparate treatment. Another example: the FMLA. Women are typically societally expected to take time off to care for family members. That does not make the FMLA either a violation of equal protection or of public policy.

You both understand and are dismissive of the procedural safeguards built into the enforcement of pre-nuptial agreements.

Nope. The enforcement of every contract requires a conscionability analysis. (I mean, if the party accused of breach raises it.) The minor issues you raise are generally just making more explicit the factors to be considered in that analysis. Duress is a defense to enforcement of any contract. Prenups are scrutinized a bit more closely by the courts for conscionability, but that is not some major public policy difference. Especially since only a bare majority of states even have adopted any such rules.

[Jimmy the Dane]

As for it is always in the public interest to enforce a contract at least you recognize your own logical fallacy there. And if it was always in the public interest to enforce a contract then there would be no legal question on whether or not enforcing a contract is in the public interest.

As courts and legislatures have found (through the uniform commercial code, common law covenants such as good faith and fair dealing, etc.) it further just proves your assertion that the enforcement of a contract is always in the public interest just plain wrong.

[David Nieporent]

You miss my point. (I was being terse because of character limits, so I wasn't clear.)

You asked what the legitimate public interest was in enforcing the contract. My answer was that the very fact that it is a contract is the interest. In other words, it's always in the public interest to enforce a contract, absent a strong reason not to. Therefore, the burden is not on anyone to prove why a particular contract or type of contract should be enforced; it's on people who want to abrogate such an agreement to explain why it shouldn't be.

And your only example is handwaving about disparate impact. Mostly men would pay it. So what?

And my point about your argument being circular is that you're arguing that people shouldn't be able to "get around" a legally-established process, even though this is a legally-established process. (Moreover, a quick review of Michigan caselaw? suggests that it does not have detailed requirements for enforceability of prenuptial agreements. They are contracts, enforceable as contracts, subject to the same sort of defenses that all contract enforcement actions are.)

?All the usual disclaimers apply: I am not a Michigan lawyer. I am not your lawyer. This commentary, not legal advice.

[gormadoc]

Your hypothetical is irrelevant: the contract (and litigation) was between husband and wife, not husband and stepfather.

[ReaderY]

But of course, as the case plainly states, the parties are the (ex) spouses themselves.

This type of objection is like objecting to having lawyers negotiate contracts because, if the lawyers sold their clients and kept the money and forced the clients to do it, that would be slavery. Why yes, it would be, if that were so. But why should you assume that that's what's happening just because you heard the word "lawyer?" A little on the anti-lawyer bias side, wouldn't you say?

Here, it looks like your imagination immediately conjured up a similar scenario just because you heard the word "Islam." "The assumption" here, as you put it, is nothing but the rawest prejudice. Don't assume things about other people, especially when you've been told plainly that they aren't true.

The English common law assumption is that the wife's consideration for the Mahr is her agreement to have an Islamic (as opposed to, for example, a civil) wedding ceremony. It is neither an agreement to marry, nor a prenuptial agreement effective only on divorce. It is an agreement, between the parties to the marriage, regarding the marriage arrangements. And the view underlying these way of looking at things is the civil law, if it can, makes an effort to accommodate these sorts of traditional religious arrangements.

Islam is no more foreign to America than Judaism or Christianity. Among the houses of worship in Philadelphia that Benjamin Franklin donated to was a mosque.

[Milhouse]

Franklin did not donate to any mosque. There were no mosques in Philadelphia at the time. Had there been one, I see no reason to suppose he would have donated to it; after all, there is no record of his giving anything to the Mikveh Israel synagogue.

[Milhouse]

Oops. I didn't look far enough. He actually did give ?5 to Mikveh Israel, so perhaps had there been a mosque he might have given it something too. But there wasn't, so he didn't.