by Eric A. Ballinger
In a traditional Islamic marriage, it is customary for a written contract containing provisions for a dowry. This is not similar to the Western concept of dowry where the family of the bride pays the groom to take the hand of their daughter. In the custom of the Islamic world, the groom pays the dowry to his bride as her own property in the event of the death of the groom or divorce. There is no doubt that these written marriage contracts are enforceable under the Shari 'a or Islamic law, but are there are questions as to their enforceability in civil courts in the Untied States.
The enforcement of these contracts is met with some controversy. Some groups contend that enforcement of nominal amounts in dowry agreements deprive women of remedies available to them under state law theories of recovery regarding equitable division of property or community property as well as alimony. 1 On the other side, there are contentions that many dowry agreements amount to a windfall to a wife on the entry of a divorce.
The appellate courts in Georgia have yet to deal with the issue, however courts in other jurisdictions have ruled in such cases with some surprising results. These agreements that are grounded in centuries old religious tradition and written in vague terms compared to formally drafted ante-nuptial agreements may see unenforceable. However in the application of neutral principles of law, these agreements may be enforceable under Georgia law. The Islamic marriage contract contemplates the payment of a dowry upon the death of the husband or divorce. While these agreements may be construed as contracts in contemplation of marriage, the implication of divorce may very well render the agreement as a contract in contemplation of divorce and subject it to the rules of contract construction. Furthermore, if these agreements are deemed to be valid ante-nuptial agreements, then the courts will have to determine their enforceability in accordance with the case law on subject.
Just as in Western culture, marriage is an important part of the Islamic world, however it comes with its own traditions and taboos. Prior to marriage, a man and woman are not allowed to be alone together. While the Koran espouses that marriage is a joinder of equal partners with separate roles, it is generally recognized that the husband plays a dominant role in the marriage.2 A Muslim man may marry a woman of equal or lower status than him and is free to marry an non-Muslim. Women are prohibited from marrying a non-Muslim and must marry equal or above their station in life.3 While an Islamic marriage ceremony involves a cleric or Imam, marriage in Islam is contractual in nature and not sacramental.4
Under the Shari 'a, to constitute a valid marriage contract, there must be an offer and an acceptance.5 Generally, the groom makes the offer to the wife through her representative, her father, grandfather or uncle. While the Islamic law requires that wife is free to accept or reject the contract, culturally young women are under a great deal of pressure to accept marriage contracts from men who the family deems to be acceptable.6 An essential element of the Islamic marriage contract is the dowry, also known as mahr, sadaq, ujr or fareeda.7 In some cases the dowry is pledged to the wife upon the formal engagement of the couple.
The dowry is money or goods that the husband pays to the wife and becomes her property upon the marriage of the parties. There is no law specifying the amount required and value is based on the, "age, beauty and virginity of the bride".8 According to Islamic law, the dowry is irrevocable by the husband and cannot be claimed by the wife's family.9 The intent of the dowry it to provide for the wife in the event of the divorce as Islamic law allows for the husband a great deal of latitude to divorce his wife. There are two parts to the dowry. The first is the prompt and it is payable at the time of the marriage ceremony. The second is the deferred and it is payable to the wife at the time of the death of the husband or divorce.10 It is usual for the family to negotiate a nominal prompt and a large deferred to make divorce more difficult for the husband.
Islam does not promote divorce and considers a marriage to be a life-long bond. Because the husband is deemed to carry the financial burden in the marriage, Shari 'a gives the husband broad discretion to divorce his wife.11 A husband need only pronounce the talaq, "I divorce thee…" three times in order to end the marriage.12 On the other hand, in order for the husband to be free to marry again, Islamic law requires that he pay the deferred portion of the dowry in full.13 A wife may divorce her husband, however if she so chooses, she will forfeit her dowry and may have to repay the prompt portion back to the husband.14 In a divorce sought by a wife, called a khul' a, it is understood that the wife is to reimburse the husband for what he has put out for her. 15
While the marriage contract in an Islamic ceremony is certainly enforceable in Islamic countries and amongst clerics who minister to the faithful, there is some question as to the enforcement of these contracts in civil courts in the United States. While some contend there is bias against Moslems in this country, the issues raised in in enforcement concern whether or not the courts can enforce religious based contracts, First Amendment issues, whether or not the agreements meet the criteria for valid contracts and whether or not the agreements meet the requirement for a valid pre-nuptial agreement. Courts around the country have addressed the issue of the Islamic dowry and in some cases enforced the provisions.
In 1985 the Appellate Division of the Supreme Court of New York in Aziz v. Aziz16 enforced the dowry provisions of and Islamic marriage contract, holding that they could enforce the non-religious portions of a religious agreement. The New York court looked to similar rulings where Jewish marriage agreements were determined to be enforceable.17 Likewise, the appellate court in Florida upheld the award of $50,000 judgment to the wife under a sadaq in Alrilich v. Elchahal,18 finding that the contract was a valid ante-nuptial agreement.
On the other hand, the Court of Appeals in California declined to enforce the provisions where wife had filed for divorce in Dajani v. Dajani.19 The Court applied principles of Islamic law and tradition that hold that the wife forfeits her dowry if she chooses to divorce her husband. The Court also applied state law principles involving ante-nuptial agreements, holding that the enforcement of the agreement would promote profiteering through divorce.
The application of the First Amendment to the enforcement of the Islamic marriage contract in the civil courts was raised in the New Jersey Superior Court in Odatalla v. Odatalla.20 In this case, a bride and groom entered into arms length negotiations along with witnesses, all of which was captured on video and After the documents were signed and witnessed, the ceremony took place. The trial court enforced the dowry, giving a judgment in favor of the wife. The husband appealed, contending that the enforcing the contract violated the Establishment clause of the First Amendment and the dowry portions did not meet the requirements of a contract under New Jersey law.
The New Jersey appellate court looked to the United States Supreme Court decision in Jones v. Wolf
21 for guidance in applying "neutral-principles" of law. Jones arises out of property dispute between two factions of a Georgia church congregation. While one faction sued in civil court for a determination of ownership of the church property, the other group objected, contending that civil courts have no authority to decide church ownership based on doctrinal issues. Justice Blackmun, writing for the majority held;
We cannot agree, however, that the First Amendment requires that States to adopt a rule of compulsory deference to religious authority resolving church property disputes, even when no doctrinal controversy is involved.22
The Supreme Court applied a "neutral-principles" approach, claiming its advantages are completely secular and flexible enough to accommodate all forms of religious organizations. "The method relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." 23 "Furthermore, the neutral-principles analysis shares the peculiar genius in ordering private rights and obligations to reflect the intentions of the parties."24
The New Jersey court in Odatalla held that the application of the neutral principles analysis in the issue of Islamic dowry was a logical extension of the Jones v. Wolf analysis.25 In applying neutral principles of contract law, the Court was able determine that the marriage contract did meet the state law requirements of a contract and was enforceable.
There has been some issue as to the enforceability of the dowry provisions as a valid ante-nuptial agreement. In Texas, the appellate court reversed and remanded the trial court's decision to enforce the provisions of the mahr in Ahmed v. Ahmed.26 While the parties did participate in an Islamic marriage ceremony complete with a mahr agreement, the uncontroverted evidence was that the parties did participate in a civil ceremony six months prior to the Islamic ceremony and as such the agreement was not made prior to the marriage. The appellate court found that there was no sufficient evidence to enforce the agreement as a post-nuptial agreement in that there was no provision as to whether the mahr was to be paid out of the separate property of the husband or the marital property.27
In Zawahiri v. Alwattar
28 the Ohio appellate courts refused to enforce the Islamic marriage contract both on the grounds that it violated the Establishment Clause of the First Amendment and it did not meet the requirements under Ohio law for a valid pre-nuptial agreement. The court can only enforce a pre-nuptial agreement if 1) the parties entered into it without fraud, duress, coercion or overreaching; 2) there was a full disclosure of the nature, value and extent of the prospective spouse's property; and 3) the terms do no promote or encourage divorce or profiteering by divorce.29 The Court also pointed out that prenuptial agreements also must meet all of the requirements of a contract, to include an offer, acceptance, contractual capacity, consideration and manifestation of mutual assent.30
The court found that the marriage contract was not discussed until the day of the marriage after the guests had arrived. After a hurried negotiation the husband agreed to a postponed mahr because he was embarrassed and stressed. As such, the court found that the agreement was entered due to overreaching or coercion.31
In 2010 the Washington Court of Appeals reversed the trial courts enforcement of the mahr in Obaidi v. Qayoum.32 The Court held that the trial court erred in applying Islamic law and principles of fault to the application of the mahr agreement. 33 The Court applied neutral principles as set out in Jones v. Wolf and found that the contract was not enforceable as it was negotiated fifteen minutes before the ceremony, prior to that the husband had never heard of a mahr and the agreement was written in Farsi, which the husband neither spoke or wrote. The appellate court even took into consideration that the trial court made findings that the husband may have been under duress.34
However, in Rahman v. Hassain 35, the appellate court in New Jersey once again enforced the provisions of the mahr, requiring the wife to refund the dowry she was paid. The court found that the wife's pre-existing mental health conditions was an impediment to marriage under Islamic law and the interpretation of Shari 'a that she would have to return the money.
While the appellate courts in Georgia have yet to deal with the issue of the Islamic dowry, the application of neutral principles of Georgia law will give the court some level of direction and guidance to determine the enforceability of such an agreement. The Georgia Code provides that contracts in contemplation of marriage are to be liberally construed to carry out the intent of the parties and th is no requirement of any specific language, only that the contract must be signed by the parties to be married and in the presence of two witnesses.36 Shari 'a requires that the contract for marriage must bear two witnesses in order to attest to the existence of the marriage, to make sure that the relationship is not illicit. However the Supreme Court of Georgia has held in Lawrence v. Lawrence
37 that a contract that references provisions for alimony and property division is a contract in contemplation of divorce and not subject to the same rules of construction.
The Supreme Court of Georgia ruled in Cousins v. Cousins 38
that where parties enter into a martial settlement agreement, the its meaning and effect should be determined according to the usual rules of contract construction. The Georgia Code provides that construction of the contract is a question of law for the courts to determine.39 The cardinal rule of contract construction is to take the document as a whole to determine the intentions of the parties. 40 This can be difficult as most Islamic marriage contracts are hastily written at the close to the time of the ceremony and are short on details. That would open the contract to the statutory rules of contract construction to include the inadmissibility of parole evidence to explain the terms of the written agreement.41 Further, some may argue that the terms of the written agreement lack and consideration. In order to form a contract under Georgia law, there is required valuable consideration.42 While there may be some question as to consideration in the Islamic marriage documents, the Georgia code provides that marriage in and of itself can be valuable consideration for a contract.43
If the courts determine the requirements are met for the existence of a contract, the three-pronged test for enforceability set out in the Scherer v. Scherer
44 must be applied. (1) was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) Is the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable? 45 Only of the answer to all three questions is "no" can the agreement be considered enforceable. However, given the appropriate facts and circumstances, the Islamic marriage contract can be considered enforceable under Georgia law, applying neutral principles as outlined in Jones v. Wolf.46
However, in protection of the economically disadvantaged party, the Georgia Supreme Court has found ante-nuptial agreements unenforceable where the economically advantaged party has failed to disclose their income and assets prior to the marriage. 47 In fact there is an affirmative duty of each party to disclose the material facts and there is no requirement that the other spouse exercise due diligence to determine the assets of the other.48 On the other hand, persons planning marriage are not in a confidential relationship and each must exercise ordinary diligence in verifying contract terms. 49 If the parties enter into the agreement with full knowledge of each other's economic status the agreement may be enforceable, despite the financial disparity. 50
While the courts thought the United States have made desperate rulings on the issue of the enfocement of the Islamic dowry, they have generally followed the same logic through the determination whether or not to enforce the contract. They have cleared the issue of the First Amendment by applying neutral principles to and looked to the non-religious portions of the agreement. In doing so, the courts look to the agreement to determine of the agreement meets the requirement of the contract under state law and then determines if the agreement is enforceable as an ante-nuptial agreement. The courts have on few circumstances relied on the Muslim traditions and Shari 'a to determine the intent of the parties, neutral principles of contract and family law decide these cases.
The Georgia Appellate Courts have yet to decide the issues of the enforceability of Islamic marriage contracts and dowry provisions, the Courts are well equipped with the tools it needs to decide the issues. The clear guidance from other jurisdictions points for the Courts to interpret these religious documents in using the existing laws regarding contracts and ante-nuptial agreements.
- Bleckhorn, Lindsey E., Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women Southern California Law Review Volume 76, page 189. (2002)
- El-Alimi, Dawoud, Marriage
Modern Muslim Society Marshall Cavendish Corporation. 2011 p. 44.
- Id. @ p. 45.
- Smith, Jane I., Islam in America Columbia University Press, New York. (1999) p.118
- El-Alimi, Id. @ p.45
- El-Alimi, Id. @ p.45
- El-Alimi, Id. @ p.47
- Smith, Id @ p.119
- El-Alimi @ p. 48
- El-Alimi @ p. 48
- Al-Sheha, Abdul Rahman (Translated by Mohammed Said Dabas) King Fahd National Library. (2000) p. 102
- El-Alimi, Id. @ p. 58
- El-Alimi, Id. @ p. 58
- El-Alimi, Id. @ p. 59
- Al-Sheba, Id @ p. 103
- Aziz v. Aziz, 127 Misc. 2d 1013, 488 N.Y.S. 2d 123 (1985).
- Hurwitz v. Hurwitz, 216 A.D. 362, 215 N.Y.S. 184 (1926).
- Akilieh v. Elchahal, 666 So. 2d. 246 (1996).
Dajani v. Dajani, 251 Cal. Rptr. 871, 204 Cal. App 3rd 1387 (1988).
- Odatalla v. Odatalla, 355 N.J. Super. 810 A2d. 305 (2002).
- Jones v. Wolf, 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed. 2d 775 (1979).
- Jones v. Wolf, Id. @ 605.
- Jones v. Wolf, Id. @ 603.
- Jones v. Wolf, Id. @603.
- Odatalla v. Odatalla, Id @ 96.
- Ahmed v. Ahmed, 261 S.W. 3d 190 (2008)
- Ahmend v. Ahmed, Id. @195.
- Zawahira v. Alwattar, 2008 Ohio 3473 (2008)
- Zawahira v. Alwattar, Id. @ 3479.
- Zawahira v. Alwattar, Id. @ 3479
- Zawahira v. Alwattar, Id. @ 3483
- Obaidi v. Obaidi, 154 Wash. App. 609, 226 P. 3d 787 (2010).
- Obaidi v. Obaidi, Id. @ 790
- Obaidi v. Obaidi, Id. @ 791
- Rahman v. Hossain, Docket No. A5191-08T3 Superior Court of New Jersey, Appellate Division (2010).
- O.C.G.A. § 19-6-63
- Lawrence v. Lawrence, 286 Ga. 309, 687 E.E. 2d 421 (2009).
- Cousins v. Cousins, 253 Ga. 30, 315 S.E. 2d 420 (1984).
- Dohn v. Dohn, 276 Ga. 826, 584 S.E. 2d 250 (2003).
- Carlos v. Lane, 275 Ga. 674, 571, S.E. 2d 736 (2002).
- O.C.G.A. § 13-3-2
- O.C.G.A. § 13-3-40
- O.C.G.A. § 19-6-60
- Scherer v. Scherer, 249 Ga. 635, 292 S.E.2d 662 (1982).
- Scherer v. Scherer, Id. @ 641.
- Jones v. Wolf, Id @ 603.
- Alexander v. Alexander, 279 Ga. 116, 279 S.E. 2d 48 (2005); Corbett v. Corbett, 280 Ga. 369, 628 S.E. 2d 585 (2006).
- Blige v. Blige, 283 Ga. 65, 656 S.E. 2d 822 (2008).
- Mallen v. Mallen, 280 Ga. 43, 622 S.E. 2d 812 (2005).
- Dove v. Dove, 285 Ga. 647, 680 S.E. 2d 839 (2009).