Islamic Prenuptial Agreements in American Courts

The key is that they are agreements, enforceable under American law as non-religious agreements are.

From Parbeen v. Bari, decided yesterday by the Florida Court of Appeal (Fourth District), in an opinion by Judge Alan Forst, joined by Chief Judge Burton Conner and Judge Jeffrey Kuntz:

This case concerns a prenuptial agreement made by the parties on September 14, 2015, and its impact on their subsequent divorce. In lieu of a conventional prenuptial agreement, the parties opted instead to enter a type of traditional Islamic prenuptial contract known as a "Mahr." Although the agreement was entered into in Bangladesh, neither party claims that it should be interpreted under the secular laws of that nation.

The parties' Mahr agreement is only two pages long and contains few legally operative clauses other than an explicit promise by Former Husband to pay Former Wife fifteen lac Bangladeshi Taka ("15,00,000" Taka). Five lac Taka would be paid upon marriage, and ten in the event of a divorce. {The trial court determined that "10,00,000" Taka had a United States Dollar value of $11,772.43. [A "lac" or "lakh," on the Indian subcontinent, means 100,000, especially with regard to money; 100 lakh, which is to say 10,000,000, is a "crore." -EV]} …

The trial court concluded that the Mahr generally limited Former Wife's recovery to the stated amount, but the Court of Appeals disagreed:

Former Husband and Former Wife both claim that the Mahr agreement is enforceable under Florida law. They are correct in this assertion. We have previously stated that prenuptial agreements are enforceable if they were entered into freely—even if the agreement is objectively unreasonable. While Florida caselaw regarding Mahr agreements is sparse, the Second District has held that they are enforceable as prenuptial agreements. See Akileh v. Elchahal (Fla. Ct. App. 1996) ("[A Mahr's] secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony." (quoting Aziz v. Aziz (N.Y. Sup. Ct. 1985))).

Here, the parties' primary point of disagreement concerns how the terms of the Mahr agreement should be interpreted. Former Husband claims that, under traditional Islamic ("Shari'a") law, a Mahr agreement functions as a type of insurance meant to protect a dependent spouse in the event of a divorce. According to Former Husband, concepts such as equitable distribution and alimony are foreign in Islam and, outside of the distribution of Former Wife's equitable share of the marital home, the Mahr should be read as the entirety of Former Wife's recovery. Former Wife, on the other hand, points to the total lack of language in the Mahr agreement stating an intent to abrogate traditional notions of equitable distribution and temporary support.

Akileh held that "Florida contract law applies to the secular terms of [a Mahr agreement]." Thus, while the parties to a prenuptial agreement—Islamic or secular—may contract away their traditional marital rights, they must do so in a way that comports with Florida law, which has a rebuttable presumption in favor of equitable distribution of property in the event of a divorce.

To overcome that presumption [under Florida law], the prenuptial agreement's plain language must unambiguously express a desire to waive equitable distribution. Overcoming the presumption in favor of equitable distribution requires more than a "boilerplate" reference to waiver. Furthermore, "[t]he court may resort to rules of construction and extrinsic evidence only where the contractual language is ambiguous." The same rules of contractual analysis apply to any prenuptial waiver of temporary support….

In the instant case, the Mahr agreement's plain meaning does not unambiguously express a desire to waive equitable distribution or temporary support. The Mahr agreement consists of a two-page pre-printed form with relevant blanks filled in by typewriter. Most of the information contained therein concerns the personal and familial details of the couple, in addition to the date, witnesses, and other procedural matters. Under "amount of dower," the agreement reflects the following insertion: "15,00,000—(FIFTEEN LAC) TAKA ONLY," five lac of which was to be paid at the time of marriage. The Mahr agreement otherwise contains no reference to distribution of the couple's past, present, or future property. As a result, the Mahr agreement cannot overcome the strong public policy in favor of equitable distribution and, if circumstances merit, temporary support.

Former Husband's answer brief provides a detailed history of Mahr agreements, characterizing it as a traditional Islamic legal instrument intended to provide brides with a modicum of support in the event of a divorce. According to Former Husband, concepts such as the equitable distribution of property and temporary spousal support do not exist under Shari'a law.

However, according to Akileh, Florida contract law applies to the secular terms of a Mahr agreement, and the Mahr agreement in this case does not bar Former Wife from seeking temporary support, alimony, or the equitable distribution of property. It states only that Former Husband is to pay Former Wife ten lac Taka upon the dissolution of their marriage. Consequently, the trial court erred when it held that the Mahr agreement barred Former Wife from seeking additional forms of distribution and support….

 

Comments

[Michael P]

I’m not a lawyer, so I can’t say whether that seems right as a matter of law, but the appeals court’s analysis — applying Florida’s usual laws in a case where neither party claims there was a choice of foreign law — certainly seems reasonable.

[rsteinmetz]

I’ve never see numbers written this way “10,00,000” or is it some foreign convention?

[Michael P]

It’s common on the Indian subcontinent. Digit separators are used for thousands, but then for multiples of a hundred afterwards. https://en.m.wikipedia.org/wiki/Indian_numbering_system

[John F. Carr]

Whether or not the result is fair I don’t like the way the court approached the decision. It took a contract to which foreign law applied and reinterpreted it as if Florida law applied. Foreign law should determine what the prenup means (say, “accepting a dower waives all claims for alimony”) and Florida law should determine whether public policy allows that meaning to be enforced in a local divorce.

[Dissojudge]

I have to quarrel not with the article but with its title, “Islamic Prenuptial Agreements in American Courts.” That title unfortunately exaggerates the scope of the article. The article is about the treatment of a Mahr by a Florida court under Florida law, not anything broader. The article doesn’t purport to review the enforceability in a civil divorce court outside of Florida of a religiously based prenuptial agreement, whether a Mahr, a ketubah, or some other religiously inspired agreement.

For what it’s worth, if the Mahr in the Florida case had been the subject of litigation in California, California law suggests it’s very unlikely to have been enforceable at all. But the fact that the Mahr might be religiously inspired isn’t the reason it wouldn’t be enforced in California.

[korioliam]

Hi all! I understand that Islam has its own cultural traditions. But I am very against when these traditions become compulsory for young people. I have seen examples of guys secretly finding girlfriends using the modern site – https://www.together2night.com/ It was that they could not choose openly but could stay in another country and solve this problem.