General Practice, Solo & Small Firm Division

A service of the ABA General Practice, Solo & Small Firm Division

Law Trends & News

Practice Area Newsletter

American Bar Association - Defending Liberty, Pursuing Justice

March 2008

Vol. 4, No. 2

Estate Planning

 

Shariah and Marriage Contracts

It is estimated that approximately nine to 12 million Muslims live in the United States today. While Muslims have always been a part of American Society, it has only been over the past few decades that they have emerged as a culturally distinct body of Americans. One of the most important ways in which Muslims now express their identity is in the courtroom, and since the 1970s there has been a steady growth in U.S. cases involving Muslims and Islamic law. This is partly due to immigration from countries that apply the shariah, and also because second generation Muslims and converts are now more confidently asserting their legal rights. As the Muslim population increases, it is becoming increasingly important for lawyers and the judiciary alike to try to understand the mysteries of the Islamic faith and address legal issues that specifically arise out of Islamic culture and beliefs.

While some religions allow its followers to easily segregate their “worldly” life from “spiritual/religious” life, Islam has failed to follow suit. A Muslim’s day-to-day life is intricately intertwined with his or her religious beliefs and teachings. A separation of the two is not only difficult but virtually impossible. Islamic states have addressed this issue by implementing a body of law derived from the Qu’ran and Hadith’s, 1 which is known more commonly as the shariah. The literal translation of shariah means way or path. Shariah is the legal framework that regulates and provides guidance to a Muslim on how to conduct his or her private and personal affairs. However, shariah is not simply limited to the regulation and guidance of an individual’s personal affairs; it is in fact much more expansive and regulates businesses, governments, and states.

While no American Muslim expects any legislator to implement or codify the shariah, a basic understanding has become imperative as American Muslims continue to lead their lives in accordance with the mandates of the Qu’ran, hadiths, and shariah. The practices are more readily visible in the arena of marriage and divorce in American Muslim community.

The marriage contract is not a sacrament in the Islamic faith. It is in fact a civil contract between the bride and groom, which is entirely revocable. Both parties must mutually agree and enter into this contract. Both the bride and groom have the liberty and authority to define various terms and conditions and make them a part of the contract. Ideally, the contract should be negotiated in the same manner as inviduals negotiate any other transactions, setting forth all the terms and agreements before entering into the marriage. Properly negotiated marriage contracts not only address personal rights but also delve into property rights, inheritance rights, and issues dealing with divorce. Although this is a right that has been afforded to the parties, unfortunately, especially within the Indian subcontinent, the right is more often than not waived by the bride’s family. While Islamic laws provide for a complete and comprehensive contract, the unfortunate fact remains that the majority of couples execute a one- to two-page preprinted contract provided by the government or some religious authority. Even within that contract, the section that seeks to discuss the specifics and agreements between the parties is crossed out. In essence, if properly executed, the marriage contract in fact can serve as a prenuptial agreement of sorts (although several American courts have classified them along the lines of an antenuptial agreement). A review of a properly executed marriage contract by the judges and lawyers can in fact prove to be an invaluable tool in resolving ambiguities, issues, and disputes.

However, some U.S. courts have been quite reluctant to enforce the marriage contracts, stating several reasons, which include (1) the contract was invalid as it was done right before the marriage, which constituted duress in the eyes of the court; (2) parties did not have reasonable time to review the contract with independent attorneys; (3) terms of the contract were inequitable, and (4) stating that such contracts are contrary to public policy.

One of the most interesting, yet problematic concepts within the Islamic marriage contracts is the concept of the mahr. Muslims who marry according to Islamic custom, whether abroad or in the United States, negotiate a mahr provision as part of a nuptial contract. For a marriage contract to be valid under Islamic law, the bride’s right to the mahr cannot be waived.

Contrary to people’s understanding, the mahr is not a “bride price.” In a case out of Ohio, the judge refused to uphold the terms of the marriage contract, stating that it violated public policy. The judge was quoted as saying “slavery is over in the U.S.; if Islamic marriage law says women are sold into marriage, then we will not enforce it in this country.” It was later discovered that the judges ruling was based on “expert” testimony where the expert testified that mahr is the bride price. To avoid such misconstrued rulings, it is becoming increasing important for the legal community in the United States to at the very least understand the basics of Islamic culture.

The mahr exclusively belongs to the wife, and is not a payment of any sorts to her family or relatives. The exact translation of the word mahr is quite problematic, although often rendered into English as dower it fails to convey the actual concept, as such it is perhaps preferable to use the word mahr. However, the term mahr can be loosely translated as a marriage gift. This requirement of the gift is considered a mandate from god and is prescribed in the Qu’ran. The Qu’ran states in pertinent part “And the women (on marriage) their mahr as a free gift” (Qu’ran 4:4).

The mahr is a token commitment of the husband’s responsibility and may be paid in cash, property, or movable objects to the bride herself. The amount of mahr is not legally specified; however, moderation according to the existing social norm is recommended. Today, the mahr has become a symbol of one’s wealth, social standing, and status within their community. The mahr may be paid immediately (muajjal) to the bride at the time of marriage, or deferred (muakhkhar) to a later date, or a combination of both. The deferred mahr, however, falls immediately due in case of death or divorce. In the case where a husband dies without having fulfilled the obligation of the mahr, the wife may either waive her right to the mahr or sue her husband’s estate for the outstanding amount of the mahr. In the event the husband dies without fulfilling his obligation as to the payment of the mahr, it becomes a debt against his estate and has priority against all other claims.

However, the mahr never becomes an issue unless there is a divorce proceeding. Contrary to popular belief, Islamic law affords a woman as much right as a man to a divorce. In the event of a divorce, several factors are considered to determine whether or not the wife is entitled to the mahr. The primary factor that is considered is who initiated the divorce (talaq). In the event the husband is in fact the petitioner, then the wife is entitled to the full amount of the mahr. However, where the wife has petitioned for the divorce (khula), she forgoes any claim to the mahr.

Even where the wife has initiated the divorce (khula), she is entitled to maintenance and support during her waiting period (iddah). Upon dissolution of a marriage, the woman has a three-month waiting period, known as the iddah. During this period she cannot marry anyone, and her ex-husband is responsible for any and all financial support, including providing her a residence. In the event she is pregnant at the time of the dissolution, the waiting period is extended to include the duration of the pregnancy and ends upon delivery of the child. However, in some circumstances where the wife has initiated the divorce, the woman may still be entitled to the mahr. This is an exception to the rule; in such cases the woman seeks a judicial divorce for harm (dharar) without losing any of her entitlement to the mahr. Dharar does not necessarily have to be physical torture or abuse; verbal abuse or even infidelity can suffice to justify dharar.

While this article is not exhaustive of the intricacies of the Islamic marriage contract, it is intended to provide a brief overview and understanding to legal practitioners. As the Muslim population grows within the United States, it will become increasingly important for lawyers to understand the intricacies of Islamic law and provide solutions to this emerging group of Americans that will allow them to reconcile their religious beliefs with our laws.

1 Hadiths-are teachings and practices of the Prophet Muhammad. These are not mandatory or obligatory practices as they are not the word of god, but are practices that are recommended. Muhammad was the prophet who is credited with the advent of the Islamic faith.As the U.S. census does not collect data on religious affiliations, the number of Muslims is a mere estimate.

Shahzad Qadri is a partner specializing in business law, international business law, estate planning, and  Islamic law at Adorno Yoss Caley Dehkhoda & Qadri in Bellevue, Washington.

Reprinted with permission of the Washington State Bar Association.