Marriage is often described as a contract, yet the law has narrowly limited the opportunities for couples to bargain over their legal rights and obligations, especially with respect to divorce. The types of prenuptial agreements used today have been enforced in the United States only since the 1970s, when courts began to change the traditional rules in cases like Posner v. Posner, 233 So. 2d 381 (Fla. 1970), and legislatures began to write new statutes based on models like the Uniform Premarital Agreement Act (1983) (UPAA).
With this evolution, state courts began to encounter agreements rooted in religious legal traditions that give a larger role to marital contracts such as the Jewish ketubah and Muslim nikah. When these satisfy the secular rules governing martial agreements, courts give them legal effect, but many cases reflect the wide gap between the requirements of religious and civil law. For couples who want to assure secular enforcement of an agreement grounded in religious tradition, advance planning is essential. Both the circumstances in which the agreement is negotiated and signed and the specific provisions it contains should be carefully considered.
Preparing Effective Marital Agreements
States set different rules for premarital and marital agreements, starting with the basic question of whether the agreement must be entered into prior to the marriage. A Texas court, for example, refused to enforce the financial provisions of an agreement signed at the time of the parties’ Islamic marriage ceremony, when they had previously entered into a valid civil marriage. Ahmed v. Ahmed, 261 S.W.3d 190 (Tex. App. 2008). States that allow post-marital agreements may require a more stringent fairness review than what would apply to a premarital agreement, see, e.g., Ansin v. Craven-Ansin, 929 N.E.2d 955, 963–64 (Mass. 2010), and some states treat post-marital agreements with the same heightened review that applies to separation agreements, see, e.g., Marriage of Traster, 339 P.3d 778, 789 (Kan. 2014). Under the Uniform Premarital and Marital Agreement Act (2012) (UPMAA), the same standards govern enforcement of both premarital and marital agreements. Note that all states allow parties to negotiate over what their inheritance or other rights will be if the marriage ends with the death of a spouse, but there may be somewhat different requirements in these cases.
Consent and Formalization
Premarital or marital agreements must be entered into voluntarily and can be set aside on grounds, such as fraud or duress, that would invalidate a commercial contract. Moreover, a couple who are engaged or married are generally understood to have a confidential relationship with heighted duties of disclosure and fair dealing. To maximize the likelihood of enforcement, each party should have independent legal representation and receive full disclosure of the other party’s assets, liabilities, and income. Timing is also important, so that each member of the couple has sufficient time before the wedding takes place for full consideration of the agreement. Although most states do not set a bright line, California requires at least seven days between the time an agreement is first presented and the time that it is signed. See Cal. Fam. Code § 1615(c) (2019).
Under the Statute of Frauds, promises made in contemplation of marriage must be in writing and signed by the party against whom the agreement will be enforced, and the writing must state the terms and conditions with reasonable certainty. Agreements should be written in a language that each of the parties understands. Some states require additional formalities; New York, for example, requires that signatures be acknowledged. See Matisoff v. Dobi, 681 N.E.2d 376 (N.Y. 1997).
These basic principles came into play in Marriage of Obaidi and Qayoum, 226 P.3d 787, 791 (Wash. Ct. App. 2010), which denied enforcement of an Islamic mahr agreement written in Farsi, where the husband was not able to read and understand it and did not learn he would be required to participate in a mahr ceremony until shortly before it began. Enforcement was also refused in Marriage of Shaban, 105 Cal. Rptr. 2d 863 (Cal. Ct. App. 2001), which rejected the husband’s argument that a one-page document signed by the husband and his wife’s father at the time of the couple’s wedding in Egypt, which recited a dowry amount but had no other substantive terms, was sufficient to displace California community property law.
In light of these requirements, couples who want their marriage agreements to have secular legal effect may find creative ways to adjust traditional practices to conform to the rules of marital contracting in places where they want their agreement to be effective. In addition to the ceremonial document signed during the wedding, the couple might prepare a parallel version that can be signed well in advance and be designed to satisfy the requirements of state law.
Scope and Content
As with any contract, careful drafting is important to reflect parties’ intentions clearly and frame their obligations in a manner that a state court judge can understand and enforce without need for parol evidence or expert testimony on foreign or religious law. Courts have generally not been receptive to the argument that the fact of execution of a ketubah or nikah constitutes an agreement that the marriage will be governed by Jewish or Islamic law because a secular court cannot interpret or enforce an agreement that requires the court to decide a religious question. See, e.g., Victor v. Victor, 866 P.2d 899 (Ariz. Ct. App. 1993); Mayer-Kolker v. Kolker, 819 A.2d 17 (N.J. Super. Ct. App. Div. 2003). In the words of the court in Shaban, “An agreement whose only substantive term in any language is that the marriage has been made in accordance with ‘Islamic law’ is hopelessly uncertain as to its terms and conditions.” 105 Cal. Rptr. 2d at 865.
Given the wide variations among state laws governing enforcement of marital agreements and the even wider range of variation once the laws of other countries are considered, parties should be certain to include a carefully drafted choice of law provision. UPMAA section 4 allows parties to select the law that will govern the “validity, enforceability, interpretation, and construction of [their] premarital . . . or marital agreement,” as long as the law is from a jurisdiction with “a significant relationship to the agreement or either party” and “is not contrary to a fundamental public policy” of the state where enforcement is sought. Courts routinely give effect to these clauses in considering the validity of an agreement at the time it was executed and the interpretation of the agreement. See, e.g., DeLorean v. DeLorean, 511 A.2d 1257 (N.J. Super. Ct. Ch. Div. 1986), Stalb v. Stalb, 719 A.2d 421, 425–27 (Vt. 1998). Potential public policy concerns may be reduced by drafting an agreement and adopting procedures that satisfy the policies of the jurisdictions with the most stringent requirements.
Public Policy Limitations
The special history of premarital agreements is evident in the cases that limit enforcement of an agreement on public policy grounds. Based on the traditional concern that marital agreements may encourage divorce, California courts have sometimes denied enforcement of very generous provisions in Jewish or Muslim marriage contracts. See Marriage of Noghrey, 215 Cal. Rptr. 153 (Cal. Ct. App. 1985); Marriage of Dajani, 251 Cal. Rptr. 871 (Cal. Ct. App. 1988). To the extent that a promise to pay a large sum reflects “realistic planning” that takes account of the possibility of divorce, however, it is more likely to be approved. See Marriage of Bellio, 129 Cal. Rptr. 2d 556 (Cal. Ct. App. 2003).
In some states, a premarital or marital agreement is subject to “second look” review to determine its fairness at the time of divorce, particularly with respect to any waiver of support rights. As formulated in DeMatteo v. DeMatteo, 762 N.E.2d 797, 811–13 (Mass. 2002), a judge may deviate from the terms of the agreement if, “due to circumstances occurring during the course of the marriage, enforcement of the agreement would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support’ herself.” Both UPAA section 6(b) and UPMAA section 9(e) provide that if an agreement to waive or limit spousal support “causes [a spouse] to be eligible for . . . public assistance at the time of separation or [divorce], [the] court . . . may require the other [spouse] to provide support to the extent necessary to avoid that eligibility.” Couples may want to consider this possibility at the time of entering into an agreement, perhaps by including provisions that will apply if, at the time the marriage ends, one of the spouses cannot be self-supporting.
There are special policy questions in states such as Kansas that have enacted anti-foreign law statutes applicable to family law disputes. See, e.g., Kan. Stat. Ann. § 60-5101 et seq. (2019); Tenn. Code Ann. § 20-15-101 et seq. (2019). Under the Kansas statute, a contractual choice of law provision providing for application of foreign law may be deemed “void and unenforceable” if the law chosen “includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions.” Kan. Stat. Ann. § 60-5104 (2019).
Case law underlines the distinction between religious obligations, which are not enforceable in civil courts, and those terms that can be the subject of a state court order. A promise to pay money, assuming it has been stated sufficiently clearly, can readily be enforced under secular legal principles, and many secular courts apply this reasoning to mahr contracts. See, e.g., Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ct. Ch. Div. 2002). In contrast to the mahr cases, courts asked to order one party to cooperate in giving or receiving a religious divorce, known as a get in Jewish tradition, are more likely to refuse on First Amendment grounds. See, e.g., Aflalo v. Aflalo, 685 A.2d 523 (N.J. Super. Ct. Ch. Div. 1996); but see Marriage of Goldman, 554 N.E.2d 1016 (Ill. App. Ct. 1990).
To avoid this problem, couples for whom the religious divorce is an important concern now include arbitration clauses in their premarital agreements, promising to appear before a religious tribunal for resolution of any disputes that arise in their marriage. Since the ruling in Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983), New York courts have enforced this type of provision if it can be done solely based on “application of neutral principles of contract law, without reference to any religious principle.”
Under the Avitzur principle, arbitration agreements and procedures are subject to the limits of state arbitration law. Although these laws permit courts to vacate arbitration awards in a limited number of circumstances, the result of the arbitration is usually enforced by the court. For example, the state court in Lang v. Levi, 16 A.3d 980 (Md. Ct. Spec. App. 2011), approved the decision of a rabbinical court after the state court concluded that the arbitration proceedings complied with basic notions of fairness and due process and that the parties had voluntarily and knowingly agreed to be subject to them. When there are serious fairness concerns, state courts have refused to approve religious arbitration orders. See, e.g., Marriage of Popack, 998 P.2d 464 (Colo. App. 2000); Hirsch v. Hirsch, 774 N.Y.S.2d 48 (N.Y. App. Div. 2004). To avoid this result, couples who plan to include arbitration language in a marital agreement should be careful to designate a tribunal that has developed clear and transparent rules and procedures.
As a matter of public policy, agreements regarding parental rights and responsibilities are scrutinized to determine if they serve the best interests of the parties’ children. See, e.g., Marriage of Iqbal and Khan, 11 N.E.3d 1 (Ill. App. Ct. 2014). To the extent that couples agree to arbitrate their marital disputes, they should be aware that state law may limit enforcement of arbitration awards made in child custody, visitation, and support disputes. See, e.g., Goldberg v. Goldberg, 1 N.Y.S.3d 360 (N.Y. App. Div. 2015). This might take the form of judicial review to determine whether an arbitration award is in the children’s best interest. See, e.g., Mich. Comp. Laws Ann. § 600.5080 (West 2019) (applied in Harvey v. Harvey, 680 N.W.2d 835 (Mich. 2004)). New Jersey law permits custody arbitration, with review only to address the possibility of an adverse impact or harm to the child. See Fawzy v. Fawzy, 973 A.2d 347 (N.J. 2009).
Some of the most challenging cases involve marital agreements entered into in another country, where the background of legal rights and remedies is significantly different from what is available under state law in the United States. To the extent the couple has relocated to the United States and made a life here together, it may not be clear whether they intended that their agreement would apply in place of the laws of their new homeland. This was a factor in the Shaban case noted above. When the language of the agreement or other evidence indicates clearly that parties intended their choice of law to follow them across international borders, state courts have applied the law of the place the agreement was made. E.g., Van Kipnis v. Van Kipnis, 900 N.E.2d 977 (N.Y. 2008); see also Mehtar v. Mehtar, No. FA 960080007S, 1997 WL 576540 (Conn. Super. Ct. 1997) (unreported). In some states, however, additional steps may be necessary to domesticate the agreement. Shaheen v. Khan, 142 So. 3d 257 (La. Ct. App. 2014), held that an Islamic marital agreement with a mahr provision executed at the time of the parties’ marriage in India was not an effective waiver of the wife’s community property rights under the Louisiana statutes. Legal advice at the time of relocation and a new agreement (in states that permit post-marital contracts) may help to assure that the couple’s intentions are achieved.
For couples who maintain ties to multiple jurisdictions, the problem is still more complex, with some cases requiring litigation in courts of different nations. In Ravasizadeh v. Niakosari, 112 N.E.3d 807 (Mass. App. Ct. 2018), the wife filed an action for divorce in Massachusetts and a separate action in an Iranian court for enforcement of a mahr. The state court decided based on comity principles to leave the issue of whether she was entitled to the mahr payment to be decided by the foreign court. See also Chaudry v. Chaudry, 388 A.2d 1000 (N.J. Super. Ct. App. Div. 1978), in which the court declined to award alimony or equitable division under New Jersey law in a divorce case that had been previously litigated in Pakistan, where the wife was living, both because there was not “an adequate nexus of the marriage” to New Jersey and because financial remedies under state law would be inconsistent with the marital agreement the wife had signed in Pakistan.
A carefully drafted premarital agreement can provide a basis for civil court enforcement of promises that also have religious or cultural significance. To accomplish this, couples and their counsel need to find an approach that addresses both their particular needs and situation and the general rules for marital and arbitration agreements under state law.
- Maha Alkhateeb, Islamic Marriage Contracts: A Resource Guide of Legal Professionals, Advocates, Imams and Communities (2012) (available from the New York State Coalition Against Domestic Violence at www.nyscadv.org)
- Beth Din of America (www.bethdin.org) (web page with forms and information for preparing Jewish prenuptial agreements)
- Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation (Am. Bar Ass’n 2d ed. 2017) (survey of laws governing marital agreements in the United States)