Terms of the contract

As for the contents of these Muslim marriage contracts, most Muslims in the USA seem to consider only one thing really important that would not otherwise be included in a standard civil marriage licence: a provision regarding the wife’s bridal gift or dower (ma∕zr∕sadaq}.

The majority of classical Muslim jurists hold dower to be an automatic result of the marriage contract, to the effect that even if no dower is stipulated, or it is stated that there will be no dower, the wife is entitled to claim a ‘proper dower’, assessed by her peers and those of her individual standing (Esposito 1982: 25; Welchman 2000: 135—6; Ali 1996: 159). Customarily the dower is divided into one part payable immediately on the marriage (the ‘prompt dower’, sometimes only a token amount or symbol) and another part deferred to a later date, either specified or more usually payable on the termination of the marriage by death or divorce (Rapoport 2000; Welchman 2000: 144; Moors ¹995: 106-13). Written documentation of Muslim marriages thus routinely includes mention of the dower arrangements, and in the USA, many mosques and imams include a fill-in-the-blank provision in standard marriage contracts (Kadri, interview, 2000). Case law of Muslim marriage litigation in the USA reveals that Muslims do generally include mahr/sadaq provisions in their contracts, their nature varying with the financial status and personal preferences and aspirations of the parties.²⁵ Some examples of actual mahr∕sadaq clauses in the USA and Canada are: $35,000, a Qur'an and set of hadith, a new car and $20,000 (Canadian), a promise to teach the wife certain sections of the Qur'an, $1 prompt and $100,000 deferred, Arabic lessons, a computer and a home gym, a trip around the world including stops in Mecca, Medina and Jerusalem, a leather coat and a pager, a wedding ring as immediate mahr and one year’s rent for deferred mahr, and eight volumes of hadith by the end of the first year of marriage and a prayer carpet by the end of five years of marriage (al-Khateeb 1996).²⁶

One case vividly illustrates the significance vested by some Muslims in their dower agreements: in Aghili v.

Saadatnejadi (1997), the husband threatened not to record the Muslim marriage contract with state authorities unless the wife first agreed to relinquish that contract and sign a new one. The original contract included a dower of Iranian gold coins to the value of $1,400 and a provision for a payment of $10,000 as damages for any breach of contract by the husband. The husband’s threat suggests that he felt bound by the mahr terms of the initial contract. Also, Los Angeles attorney Sermid al-Sarraf comments that he has seen, in informal divorce negotiations, a husband’s recognition of the mahr amount, prompting the parties to include in their settlement an offset of this amount with other property (interview, 2000). Other Muslims tend not to consider the dower important at all, and include a clause about it (often only a token dower) in their contracts only because the Muslim officiating the ceremony tells them it is required (Kadri, interview, 2000).²⁷

Discussions among US Muslim women include debates over the importance of the mahr/sadaq in the first place - some rejecting it as putting a monetary value on the bride, others advocating it as a financial protection for women in the event of death or divorce and sometimes as a deterrent against divorce (especially powerful where there is a large deferred dower).²⁸ There is indeed a dilemma presented by the institution: setting the mahr very high may provide good financial security for the wife and (where deferred) a good deterrence against husband-initiated divorce, but on the other hand, it burdens wife-initiated khuΓ divorces, which are usually negotiated with an agreement by the wife to forfeit her mahr, with the significant financial cost of waiving the outstanding amount and returning whatever prompt dower has already been paid. Setting the mahr low, or as only a token gift, has the reverse double-edged sword effect, I hat is, there is not as much to be lost in returning the mahr if the wife wants to negotiate a khul' divorce, but she also loses the deterrent effect on Ialaq divorce by the husband which is accomplished by a high deferred dower.

Where the divorce occurs not through extra-judicial talaq or khul', but rather judicial dissolution by third-party' arbiters, the impact on mahr payment does not follow an absolute rule. Rather, the arbiters assess blame and harm caused by the spouses and allocate costs accordingly. Where there is no harm by the wife, she generally keeps all of the mahr (el-Arousi 1977: 14; Quick 1998: 36—9; Ali 1996: 125).²⁹

As elsewhere in the Muslim world, additional stipulations (e.g. stipulations of monogamy, delegated right to divorce, wife’s right to work outside the home, etc.) further defining the marital relationship of the new couple seem to be much less utilized than dower provisions,³⁰ presumably because the dower is obligatory whereas additional stipulations are not only optional but also a subject of little public awareness, and some clauses are even controversial in Classicaljurisprudence and local community attitudes (Kadri, interview, 2000). Nevertheless, the idea of particularizing one’s Islamic marriage contract is gaining attention among the US Muslim population. Encouraged by Muslim women’s organizations and activists seeing the use of additional stipulations as a tool for women’s empowerment, more and more US Muslims are educating themselves about how to use the Muslim marriage contract. Says Sharifa Al-Khateeb of the North American Council for Muslim Women: ‘The contract is a tool to help men and women design their future life together so there are no surprises... and so women won’t be saying “I can’t do this because my husband won’t let me”’ (Lieblich 1997).

Far from considering it a new, reformist feminist tool, many see the proactive use of the Islamic marriage contract as a way of protecting their basic Islamic rights. It is for this reason that Karamah reports it is working on a model marriage contract, grounded in classical Islamic legal principles, to be used by Muslims worldwide. One visitor to the Karamah website praises a friend for drafting her marriage contract to include clauses on monogamy and equal right to divorce (among others) and comments that many Muslim men unfortunately have a negative attitude towards drafting a marriage contract, considering it an ‘insult to their ability to behave as model Muslims’ and that they ‘forget that in times of imminent divorce, men and women do become irrational and make demands that are hard to agree upon’.³¹

The empowering potential for women in the Islamic marriage contract has also attracted scholarly interest among academics. According to John Esposito, Islamic marriage contracts were originally intended to raise the status of women because, being party to the agreement, women could add stipulations of their own (Lieblich 2001).

Carol Weisbrod (1999) notes: ^t[t]here is considerable interest among Islamic women in the idea of using the contractual aspects of Islamic marriage to protect women’s rights.’ Of course, such use of the contract stipulations presumes that the woman has the awareness and education necessary to utilize it. This is often not the case and, as Lynn Welchman has pointed out, the Islamic marriage contract system leaves ‘the protection — or clarification — of rights such as education and waged employment for women out of the law per se and subject to the knowledge, ability and initiative of the individual women not only to insist on the insertion of a stipulation but to phrase it in a manner that gives it legal value’ (Welchman 2000: 180). On the other hand, the marriage contract remains a very valuable tool because its grounding in classical law gives a ‘clear indication of the acceptability⁷ of the changing of the more traditional parameters of the marriage relationship’ (ibid., p. 180). It is for this reason that many activists take the need for education on the topic of marriage contract law so seriously, and their efforts largely focus on simply making women aware of this tool.³²

Women’s empowerment is not the only motivation, however. Those advocating the use of additional contractual stipulations focus not only on their potential to equalize gender-based advantages, but also as a way for both spouses proactively to express partnership in their new, unique union. Aycsha Mustafaa of the Muslim American Society says: ‘[i]t forces conversation on important issues: where you are going to live, whether your wife is going to work, whether she accepts polygamy’ (Lieblich 2001).³³ Similarly, Kareem Irfan, of the Council of Islamic Organizations of Greater Chicago, says: ^ζ[t]he contract forces the bride and groom to have a reality check before marriage’ (ibid.). What form this reality check takes depends upon the ideologies of the individual couple.

For some, it may mean a reaffirmation of traditional roles, such as that the wife won’t go to college or work after the couple has children (ibid.). But for others, especially non-immigrant Muslims whose image of married life is very different from the traditional one, arrangements such as monogamy and equal access to divorce are more or less presumptions in the structure of marriage, and these men are not threatened by a woman’s interest in including these (and other rights-specific terms) in the marriage contract. Indeed, in many cases it is the groom as well as the bride seeking to have such stipulations included.³⁴ The attitude of many of these couples is exhibited in the following statement of one Muslim bride: ‘I love him... and I can’t see him [taking a second wife], ever. But we put it in the contract because you never know’ (ibid.). These young Muslims tend to view the contract drafting process not only as an allocation of rights and duties, but also as an exercise in learning to express their new identity as a couple, and, even more importantly, as a way to open up discussion (and determine compatibility) on important family issues (career, children, finances, residence location, etc.) that might otherwise be postponed to more stressful times (Quraishi 1999).³⁵ In other words, among a growing proportion of the American Muslim population, there is an interest in drafting more detailed, personalized Muslim marriage contracts - documents that are not a generic stamp of mere legal status conferred by some external authority, but rather, full, detailed expressions of the way each couple defines itself.

For those who choose to include specific stipulations in their marriage contract there are many insightful ideas from which to choose. Islamic history attests to Muslim marriage contracts including stipulations in which the husband promises not to marry additional wives (usually with the remedy that the wife may obtain a divorce, or even force a divorce of the second wife, if this promise is breached), delegates his Ialaq right to the wife, agrees not to relocate the family without the wife’s consent, agrees never to prevent her from visiting her relatives, and to provide her with servants for household work as is befitting her accustomed lifestyle, among many others (Rapoport 2000: 14; Fadel 1998: 24-6; al-Hibri 2000: 57).

Muslims in the United States have already taken advantage of the creativity allowed in these provisions and have included stipulations limiting visits from inlaws, that the wife will not be expected to cook or clean, protecting the wife’s overseas travel required by her profession, and custody of the children upon death of either spouse (Lieblich 2001, 1997).³⁶ Many clauses affecting the ongoing marital relationship (such as rearing the children as Muslims, providing household services, allowing a wife to attend school, and location of the home) are included despite a realization by the couple that a US court would probably not intervene to enforce such terms (discussed further below). Other terms, such as a promise not to marry additional wives, have little effect in the USA for a different reason: the action is already prohibited by US law. Nevertheless, these couples feel it important to include such terms for religious reasons (i.e. thus preventing even a non-civil but nevertheless Muslim marriage to an additional wife), as a protection in the event they relocate to a jurisdiction that does allow such activity, and also as a mutual expression of the nature of their partnership. Finally, some marriage contracts use stipulations to provide for remedies in the event of a breach of other contractual terms (e.g. a monetary value or a wife’s right to immediate divorce upon occurrence, etc.).³⁷

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Source: Welchman Lynn. Women's Rights and Islamic Family Law: Perspectives on Reform. Zed Books,2004. — 328 p.. 2004

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