The enforceability of specific marriage contract provisions

The question of judicial enforcement of the terms of marriage contracts is important to Muslims because, as a minority community in a secular legal system, the only authority with physical state power to which individual spouses can turn when their partner breaches a marital agreement is the domestic courts.

Provisions regarding the mahr/sadaq in a Muslim marriage contract are some­what easier for the courts to handle because they are usually already defined in terms of a monetary amount payable upon dissolution of the marriage — a secular concept understandable to US judges. In the most recent case to take up the question, Odatalla υ. Odatalla (2002), a NewJersey court treated the Muslim marriage contract in question under standard contract law and ultimately upheld the $10,000 postponed mahr as binding in a US court. Said the NewJerseyjudge: ^ζ[W]hy should a contract for the promise to pay money be less of a Contractjust because it was entered into at the time of an Islamic marriage ceremony?... Clearly, this Court can enforce so much of a contract as is not in contravention of established law or public policy’ (Odatalla 1995). What is unique about this case is that, contrary to the predominant approach of most US courts up to this point, it did not analyse the mahr as a pre-nuptial agreement, but rather under neutral principles of contract law.⁶⁷ Abed Awad, who litigated the case on behalf of the prevailing wife, insists that the misconstruction of mahr agreements as pre-nuptial agreements under US law has created a serious warping of American judicial understanding of Islamic law as well as a hindrance to providing justice to US Muslim litigants.⁶⁸ As urged by Awad in the Odatalla litigation, mahr is not consideration for the contract, but rather an effect of it - an automatic consequence whenever a Muslim couple marries (Awad 2002). This is borne out by classical jurisprudence on the subject and the fact that Muslim jurists would assign an equitable mahr to those wives whose contracts did not specify one (Welchman 2000: 136, 140; Rapoport 2000: 14).⁶⁹ Thus, enforcement of Muslim marriage contracts, says Awad, should be by simple contract law principles, and not by the more particularized rules of pre-nuptial agreements that vary from state to state and generally carry heightened scrutiny (Awad 2002).

The characterization of Muslim marriage contracts as pre-nuptial agreements is not exclusive to USjudges. Many lay Muslims, unaware of the legal distinctions between pre-nuptial agreements and simple contracts, often refer to Muslim marriage contracts as pre-nuptial agreements, and moreover some actively ad­vocate the employment of this legal tool by US Muslims.⁷⁰ Attorney Abed Awad points out that these Muslims are often unaware of the technical requirements attached to valid pre-nuptial agreement drafting, and also that such agreements are assumed to override all other standard laws regarding dissolution of marriage, such as inheritance, community property, alimony and so on (Awad, interview, 2001). In Islamic law, however, these are separate questions - a Muslim wife is entitied to both her mahr and her standard inheritance portion - and Awad points to this as another proof that the Muslim marriage contract should not be seen as a pre-nuptial agreement.

A California case illustrates what happens when pre-nuptial agreement analysis meets an incomplete understanding of Islamic law in a US court. In Dajani v. Dajani (1988), the California Court of Appeals interpreted the mahr in a Muslim marriage contracted in Jordan to be a pre-nuptial provision ‘facilitating divorce’ because the 5,000 Jordanian dinars became payable to the wife only upon dissolution of the marriage. In California, as in most states, a pre-marital agreement may not ‘promote dissolution’ and thus a promise of substantial payments upon divorce may be interpreted to invalidate that clause.⁷¹ The court thus considered the mahr windfall to be potential ‘profiteering by divorce’ by the wife and against public policy, and held the provision unenforceable, causing Mrs Dajani to lose her expected mahr. Azizah al-Hibri has critiqued this court opinion, showing it to reflect a basic misunderstanding of Islamic law and the institution of deferred dower, particularly since deferred dower is also due upon the death of the husband (al-Hibri 1995: 16-17).⁷² It might also be pointed out that, under Islamic law, if a woman initiates divorce extra-judicially through khul', then she is likely to forfeit her ma⅛.⁷³ Thus, a mahr clause in this situation acts as a deterrent to (not a facilitator of) no-fault divorce by the wife - a result quite opposite from the ‘profiteering’ assumptions made by the California Court of Appeals.

The whole life of the Dajani case, from trial to appeal, illustrates mistakes that can be made when US judges attempt to adjudicate matters of Islamic law. At trial, for example, Muslim experts testified to the Dajani judge regarding the forfeiture of the dower upon divorce initiated by the wife, and, based on this testimony, the trial court concluded that the wife must forfeit her mahr because she initiated the divorce, an oversimplified understanding of Islamic law on the matter. (Unfortunately, the court did not undertake an analysis of faskh dissolution in Islamic law where an inquiry into harm is made, distinguishing it from extra­judicial khul'.} But when it got to the Court of Appeals, the inquiry into Islamic law was even more superficial: it went straight to rejecting all mahr provisions generally as ‘facilitating divorce’.

Demographic distribution may play a role in the ability of USjudges fully to understand minority religious practices affecting family law rights. For example, the Odatalla case originated in New Jersey, in an area with a significant Arab- American population. Similarly, New York family courts dealing with Muslim litigants have relied on their experience with the Jewish ketuba, a custom carrying many parallels with Muslim marriage contracting. Thus, in Habibi-Fahnrich v. Fahnrich (1995), the New York Supreme Court, though a bit confused in its usage of terms,⁷⁴ specifically stated: ‘The sadaq is the Islamic marriage contract. It is a document which defines the precepts of the Moslem marriage by providing for financial compensation to a woman for the loss of her status and value in the community if the marriage ends in a divorce. This court has previously determined that sadaq may be enforceable in this court.’ In this case, the court ultimately ruled the sadaq at issue to be unenforceable, but it did so in a way that is more instructive to Muslims. In Fahnrich (1995), the New York court had difficulty giving effect to the sadaq provision in the Muslim marriage contract simply because the terms were too vague under basic contract principles.

The need for clarity arises in another clause often included as standard in Muslim marriage contracts, stating something to the effect that the marriage is governed by Islamic law. These sorts of clauses have been found by one court to be insufficiently clear to warrant court enforcement of its terms. In Shaban υ. Shaban (2001), the California Court of Appeals rejected a husband’s attempt to enforce the mahr (the equivalent of $30) listed in his Egyptian Muslim marriage contract, instead awarding the wife $1.5 million in community property. The marriage contract included a clause stating that the ‘marriage [was] concluded in accordance with his Almighty God’s Holy Book and the Rules of his Prophet’, and the husband asserted that this meant that the dissolution should be governed by ‘Islamic law’. The court flatly rejected this attempt to incorporate Islamic law by reference, stating that ‘Islamic law’ was such a broad, abstract concept that brought too much uncertainty into the terms of the contract. Pointing out the many manifestations (schools of thought, state legislation) of Islamic law, the court concluded: An agreement whose only substantive term... is that the marriage has been made in accordance with “Islamic law” is hopelessly uncertain as to its terms and conditions.’⁷⁶ Thus, the Statute of Frauds, requiring clear contract terms, prevented its enforcement.

The California court’s attitude in Shaban is.significantly different from the New York Supreme Court’s treatment of a similar clause in Aziz υ. Aziz (1985), i∏ which it found a Muslim marriage contract, with its wzα⅛ provision of $5,000 deferred and $32 prompt, to be judicially enforceable despite its being part of a religious ceremony, because it conformed to the requirements of New York general contract law. This is true even though the contract apparently stated that it united the parties as husband and wife ‘under Islamic law’. The concerns of ‘Islamic law’ by incorporation so central to the California Shaban court apparently did not bother the New York Supreme Court. In the words of the court: ‘The document at issue conforms to the requirements of [state contract law] and its secular terms are enforceable as a contractual obligation, notwithstanding that it was entered into as part of a religious ceremony.’⁷⁷

There arc two interesting aspects of Shaban that are relevant for our study here. First, the court’s rejection of the entire contract because of a clause stating it is governed by ‘Islamic law’ is important to Muslims because most, if not all, Muslim marriage contracts include this type of statement. This is true even of marriage contracts drafted in the United States. Since the court appeared par­ticularly frustrated with the lack of any other substantive terms in the contract besides this one and the mahr provision, it may be that by individualizing and embellishing their marriage contracts with many substantive stipulations, Muslim couples may be able to avoid a result like the one in Shaban, but there is no guarantee. In addition, as will be seen in more detail later, other states have found their way to enforcing Muslim marriage contracts despite such references.

The other interesting thing about the California court’s treatment of Shaban is its absolute lack of interest in investigating the permutations of Islamic law if it were to govern the agreement. They are justifiably concerned about the complexity and diversity of ‘Islamic law’ and their reluctance to engage it is understandable. Nevertheless, one is left with the impression that the court took for granted the husband’s version of Islamic law - i.e. that the wife would be limited to $30 mahr under Islamic law, and that the obviously fairer thing to award the ex-wife of a now-wealthy American doctor after twenty-seven years of marriage is her com­munity property entitlement of $1.5 million. But if the court had decided to make a deeper investigation of Islamic law in such a situation, they might have found that the stipulated wzαAr is not always the end of the story for a Muslim court - she might have been given an adjusted mtf/zr mz7∕z∕ if the stipulated mahr was out of proportion to women of her peer group, and she might even have been awarded nιuta maintenance (equivalent to alimony) in an amount close to the community property award (Rapoport 2000). Further, Islamic legal precedent establishing that women have no obligation to do housework or even to nurse children (and thus should be compensated for it if they choose to do so),⁷⁸ points to an awareness of the very problem that community property laws in the modern West seek to remedy (al-Hibri 2000; Walter 1999). It is a mistake to assume that awards under Islamic law are necessarily going to be worse for the wife than under US law. In fact, it appears that most spouses attempting to enforce Muslim marriage contracts in US courts are wives (not husbands), attempting to enforce rather high mahr amounts.⁷⁹

A11 interesting aspect of these cases is that they show, in general, that for those courts that do undertake the effort, they have been fairly good at understanding the relevant Islamic jurisprudence defining the nature of a Muslim marriage contract, in order to discern which elements it can enforce as a secular court. These judicial understandings are largely from their own research as well as Muslim expert witnesses presenting courtroom testimony. Though they often disagree with each other in a particular case and frequently leave out juris­prudential details, the outcome of the cases indicates that, by and large, these experts have served to give the judges a rather good idea of the important elements at work. In one case, an appellate court even corrected its trial court in under­standing the nature of Muslim wedding officiants. In ∠4gA⅛' v. Saadatnejadi (1997), the Tennessee Court of Appeals, citing expert testimony, explained:

In contrast to Western religious teaching and practice (particularly in Chris­tianity, both Catholic and Protestant, but also to some extent Judaism) Islam from its inception to the present has consistently rejected the distinction be­tween clergy and laity. Islamic law stipulates quite precisely that anyone with the requisite knowledge of Islamic law is competent to perform religious ceremonies, including marriage. One is not required to have an official position in a religious institution such as a mosque (masjid) in order to be qualified to perform such ceremonies.

This understanding of Muslim wedding officials (and imams in general), though it overstates the facts in assuming there is a need for an officiant at all (Islamic law does not require one), is still instructive in accurately trying to appreciate the different structure of religious authority in Islamic law as compared to other religions, and does so in a respectful way. There is here an appreciation that a Muslim marriage does not have to look like a Christian one, and need not have an altar or a minister in order to be valid. In this case, the court’s awareness resulted in its rejection of the husband’s claim that his marriage was not valid because the officiant was not a real ‘imam’. Said the court, his ‘right to bear the title imam is irrelevant’. Of course, the education of judges is not uniform across the USA (as the Dajani case exemplifies), but this review of the case law indicates an overall positive picture, especially in those states that have more experience with minority religious legal traditions, such as New York.

The lesson for American Muslims from these cases is that, even though a Muslim marriage contract serves a religious function, if its terms are clear, an American court might find a way to enforce those terms serving a ‘secular’ purpose, such as the financial mahr∕sadaq awards due upon dissolution. But a final note on secular court understandings of mahr∕sadaq clauses: it is worth noting that Muslim jurisprudence, classical and modern, identifies a number of functions fulfilled by the institution of mahr, whether in its’status in the contract or more broadly in the social life of the wife in particular. A number of these functions have been identified by US courts in the cases described above.⁸⁰ These include: (ι) it serves the purpose of financial security for the wife in the event of a divorce;⁸¹ (2) it may serve as a deterrent to the husband declaring a unilateral talaq divorce;⁸² (3) it constitutes a form of compensation to a woman unjustly divorced by the husband’s unilateral talaq∙, (4) it is the husband’s consideration for entering the marriage, under basic contract law principles; or, lastly, (5) it is simply a gift from the husband to the wife.⁸³ Each of these functions of mahr might prompt a different analysis by a secular court attempting to understand it in secular terms, and there is consequently the potential for inconsistencies between courts and frustration by Muslim litigants who may interpret the pur­pose of their mahr differently than that focused on by the court. For example, if the mahr is merely a gift, then why does Islamic law treat it as a debt owed by the husband if he chooses not to pay it? (Esposito 1982: 25; Rapoport 2000: 10). If it is compensation for unjustified unilateral divorce by the husband, then what if the divorce at issue was initiated by the wife instead? If it serves as financial support for the wife after divorce, then does the initiator of the divorce (i.e. whether it is khul' or talaq) really matter, and can secular alimony and child support payments be substituted instead? Rapoport’s review of the evolution of the deferred mahr suggests that that institution did act as a substitute for alimony, but this does not speak to the rationale of the prompt mahr (Rapoport 2000). Further complicating all these analyses are the my riad variations on what mahr amount is payable up-front and what amount is deferred - i.e. if it is substituted for alimony, then should Muslim women start asking for a large amount up­front instead of a large deferred amount, to protect themselves against the possibility that a court will award them neither alimony nor their deferred mahr? And then there is the question of how to treat dowers that are not specified in monetary terms at all. All of these questions remain unanswered, and perhaps there is no uniform answer that applies to the situation of every woman (i.e. while one might need financial security, another might need deterrence against her husband’s unilateral divorce). Nevertheless, as these cases demand more and more judicial attention, they will also draw the eye of Muslim legal experts in the USA to focus on basic Islamicjurisprudence on the subject, its appropriate interpretation in the context of modern-day USA, and then address how to present these conclusions to the judiciary.

At present, US Muslim attorneys differ over the viability of pursuing the enforcement of mahr/sadaq provisions in the courts. Some believe it to be generally a losing proposition, citing local cases they have seen where the mahr was denied (Kadri, interview, 2000). Others are optimistic about the future of mahr recogni­tion in the United States and encourage those pursuing these cases (al-Sarraf, interview, 2001). Indeed, in the cases reviewed above, spouses asserting the en­forceability of a Muslim marriage contract as a pre-nuptial agreement did not always succeed. In both California cases dealing with mahr claims as pre-nuptial agreements, Dajani and Shaban, the court ultimately refused to honour the con­tract. In New York and Florida, the parties fared a bit better: in Aziz (NY) and Akileh (FL) the Muslim dower provisions were upheld, though the language of the Florida court indicates that they perceived the sadaq to be the husband’s con­sideration for entering into the contract, an analysis with which Awad would strongly disagree.

Reviewing the history of the subject in general, it appears that interest in enforcing mahr provisions in the courts has taken particular hold in the Muslim community over the past five years or so. In earlier years, Muslim couples ap­parently tended to opt for informal recognition, voluntarily enforced through internal channels. As more and more Muslims draft formal Muslim marriage contracts in the United States, the courts will presumably see more litigation of mahr clauses. It remains to be seen whether there will be consistent treatment of these cases by state family law courts, and whether that treatment will be to review these cases as pre-nuptial agreements, seek to reject them as contracts with uncertain terms due to their religious references, or analyse them under straight contract law.

As for the enforceability of contractual stipulations other than the dower, there is much less case law because, as noted earlier, these sorts of stipulations are less popular in Muslim marriage contracts, and have even less frequently become the subject of full litigation ending up in published case reports. One stipulation many Muslims wonder about is a clause regarding the religious up­bringing of the children, a relatively popular clause in inter-religious marriages. Specifics vary from state to state but, generally, agreements that a child will be raised in a particular religion are not enforceable in a pre-nuptial agreement, but if included in a separation agreement (when the marriage is ending) are usually recognized. For example, in Jabri v. Jabri (1993), a New York court held: Agreements between divorcing spouses with respect to the religious upbringing of their children will be upheld by the courts only when incorporated into separation agreements, court orders, or signed stipulations... In the absence of a written agreement, the custodial parent... may determine the religious training of the child.’ And in Arain v. Arain (1994), the New York Supreme Court rejected for lack of supporting evidence a custody-change request based on a claim that the wife had violated her agreement to ‘raise the child pursuant to the Muslim faith’. Muslims will note that this is in contrast to standard Islamic law rules on custody, which would hold that a non-Muslim’s wife failure to raise the children as Muslims would cause her custody of the child to lapse at least once age of discrimination is reached. This US judicial policy is based on several reasons, including the unconstitutional judicial promotion of a particular religion, and avoidance of judicial interference in an ongoing marriage (gummo v. ζummo, 1990). As a result, Muslim marriage contracts including a religion-of-the-child clause are unlikely to be enforced because these contracts are usually likened to pre-nuptial agreements in order to be enforced. However,’ upon divorce, if such an agreement is possible (either through divorce mediation, or informally between themselves), the parties may be able to accomplish this goal, if the agreement is included in their documented separation agreement. In any case, religious upbringing of the children is a complicated and risky business, and (as discussed earlier) is one of the reasons some Muslims today warn against marriage to non-Muslims (al-Hibri 2000).