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Mahr ? Islamic Marriage Contract ? Held to be Not Enforceable

By Jeremy Morley

An Ohio court has reportedly ruled that a promise made as part of a mahr ? a dowry gift given by the groom to his bride upon an Islamic marriage ? could not be enforced at law.

The Ohio Case The case in Ohio stemmed from the marriage of a Muslim couple ? the bride living in Ohio and the groom from Ireland. The bride?s father and the groom agreed on the terms of the mahr contract immediately before the marriage. Pursuant to the written one-page marriage contract, the groom gave his wife as a dowry a gold bracelet, a ring and a promise of a $25,000 payment. Less than two years later, the marriage was over.

In court, the wife argued that the mahr should be considered as a prenuptial agreement and the bride demanded enforcement of the promise to pay $25,000. Judge Dana S. Preisse in Common Pleas Court, Domestic Relations, Franklin County, Ohio refused to do so. She ruled that because "the obligation to pay $25,000 is rooted in a religious practice, the dowry is considered a religious act, not a legal contract. She held that a prenuptial agreement must be entered into without duress or coercion. In this case, she said, the agreement was made just a few minutes before the wedding ceremony, and the husband did not have time to consult an attorney. Furthermore, a prenuptial agreement is designed to protect a person's assets in the event of a divorce. By contract, the mahr was designed to give the wife money in addition to whatever assets she owned, so that it could not be considered a prenuptial agreement.

Other Cases Cases concerning mahr agreements ? some domestic and others entered into overseas ? have been litigated in several U.S. courts. The agreements have occasionally been upheld but only when presented as a simple contract and not as a prenuptial agreement. The distinction and application of the principles is well illustrated by two New Jersey cases.

In Odatalla v. Odatalla 810 A.2d 93 (N.J. Super.Ch. 2002), the Superior Court of New Jersey stated: ?Why should a contract for the promise to pay money be less of a contract just because it was entered into at the time of an Islamic marriage settlement?? The court found that under the doctrine of ?neutral principles of law,? it could enforce the agreement?s secular components ? specifically a promise to pay $10,000. The wife presented the parties? wedding video showing two families negotiating the terms as an imam prepared the document, which everyone read before signing. The judge concluded that it was ?nothing more and nothing less that a simple contract between two consenting adults. It does not contravene any statute or interests of society.?

By contrast, in Attia v. Amin, New Jersey Ch. Div., June 12, 2006, the court is reported to have held that the requirements of a valid contract had not been met since the amount of the payment was inequitable and the defendant had signed the agreement under duress, fearing that, if he did not do so, the marriage would not take place and that he would be deported. In an interesting additional argument, the court reportedly relied on testimony of the husband's expert witness that a mahr is valid only if the wife is not more than 50 percent at fault for the divorce. The judge held that since the wife had made false charges of terrorism against the husband and had even called the FBI against him she was more than 51 percent at fault, which voided the mahr.

So When is a Mahr Enforceable?

Clearly a mahr is not a prenuptial agreement as that term is understood in American law and as understood through most of the world. It does not resolve the financial obligations between spouses ? even parties to a Muslim marriage ? under the civil law under American law. But it might create a claim to a specifically agreed sum of money if it constituted a valid contract.

Finally it should be noted that the Ohio case has prompted the imam who married the couple to change how he performs weddings. It is reported that from now on, he will make the husband sign a promissory note for the mahr, as well as the marriage contract, in order to make the promise more enforceable in the civil courts.

For more on international prenuptial agreements see our website section. For more on Islamic marriage and divorce see our website section

Full post as published by International Family Law on October 21, 2007 (boomark / email).