The Niqabi Paralegal

The mahr is generally specified in the marriage contract itself. The contract may contain other conditions and stipulations governing the marriage, with particular attention to the rights of the parties to seek divorce and the money due to the woman in the event of divorce or death of the husband.

Because of this, the Muslim marriage contract has generally been treated by the American courts as a prenuptial agreement. This is true even if the marriage contract mentions only the mahr and not any other provisions. After all, by custom the bulk of the mahr is to be given only in the event of divorce.

This is where Muslims may run into trouble. Each state has its own requirements for prenuptial agreements and the Muslim marriage contract may not meet these requirements (especially if it was made in another jurisdiction or even another country). Some courts have also held that the postponed mahr creates an incentive for the woman to initiate divorce, which these courts say is contrary to public policy.

Aside: This is a misunderstanding of Islamic divorce law. Under Islamic law, a woman may seek divorce for cause (Quran 4:128) or in what Americans generally call "no fault" divorce (khula, Quran 2:229). If she seeks divorce for cause, she retains the mahr. However, if she wants a khula (no fault) divorce, she has to give the mahr back. So under Islamic law there is no "incentive" for the woman to seek divorce in order to claim the mahr.

Because the marriage contract is treated as a prenuptial agreement, the Muslim couple are at the mercy of the courts, who may decide that the contract is not a valid prenuptial agreement, or that it contains provisions contrary to "public policy".

This puts women in a difficult position. The mahr is theirs by right once the marriage is consummated, but they may be denied it because it is treated as a sort of divorce provision. A Muslim woman in America is taking a gamble in agreeing to postpone the mahr until divorce.

Muslim Marriage Contract in American Courts discusses these and related issues.

I searched state case law with Lexis and found several cases concerning the mahr. In Aziz v. Aziz, 127 Misc. 2d 1013 (1985), the Supreme Court of New York for Queens County upheld the mahr provision, stating that the Muslim marriage contract was valid. This opinion also discusses why the courts have the power to enforce secular provisions in contracts, even if the contracts are entered into as part of a religious ceremony. In Akileh v. Elchahal, 666 So. 2d 246 (1996), the Court of Appeal of Florida overturned a lower court decision and upheld a mahr provision.

However, in In re Marriage of Dajani, 204 Cal. App. 3d 1387 (1988), a California appellate court declared the Muslim marriage contract invalid as a prenuptial agreement and did not enforce the mahr provision.

A recent ruling from New Jersey suggests a new approach, which will be discussed in the next blog entry, inshallah.