Islamic Prenuptial Agreements (Mahrs) Are Enforceable by American Courts, Like Other Prenups

From Nouri v. Dadgar (Md. Ct. Spec. App. Apr. 7):

These two cases, consolidated for purposes of this opinion, present the same issue of first impression in Maryland: May a civil court adjudicating a divorce enforce a provision in a religious marriage contract that requires one spouse to make a payment to the other?

We hold that a Maryland court may enforce such a provision only if, under secular legal principles, the contract satisfies the requirements of an agreement entered into by parties in a confidential relationship. That is, (1) “the burden of proof … falls upon the party seeking to enforce the agreement”; and (2) “[t]he correct standard for determining the validity of [the] agreement … [is] whether there is an ‘overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or procurement.'”

Each of the couples in these consolidated cases was married in both a civil ceremony and an Islamic religious ceremony. In connection with the Islamic ceremonies, each of the couples entered a marriage contract that contains a mahr, a provision that, as relevant here, required each of the husbands to pay a quantity of gold coins to each of the wives. The enforceability of those mahrs is the sole issue in each of these appeals. To provide context for our analysis, we will first explore what a mahr is and then turn to the facts of the two cases on appeal….

All four of the parties in these cases are of Iranian descent, and their Islamic marriages were inspired by practice in Iran. Marriage in Islam is a contractual undertaking, the basic elements of which are offer, acceptance, and mahr. Mahr (also sometimes called sadaqa) is “a sum of money or some other economically valuable asset that a husband must give to a wife.” Mahr is a religious obligation, prescribed by the Quran, that has been incorporated into the civil law of many Muslim countries, including Iran. A mahr also is included in the marriage contracts of many Muslim Americans who choose, like the couples in these cases, to be married in an Islamic marriage ceremony….

The precise nature and amount of the mahr varies in each contract. [The mahrs in these two cases were worth nearly $500,000 and $225,000. -EV] Every Islamic marriage contract must have a mahr, however, and if one is missing, then it will be implied.

The mahr is a personal obligation of the groom to the bride, which, “[g]enerally speaking[,] … is divided between an immediate gift to the wife” (the “prompt” or “immediate” mahr) “and a deferred payment.” In principle—or sometimes, under the explicit terms of the contract—the wife is entitled to the deferred mahr upon demand at any time following the marriage, and “any delay is a matter of contractual forbearance on her part.” In practice, though, “[s]uch delays are standard,” and the deferred mahr typically becomes “due upon divorce or the husband’s death.”

The parties’ experts offered at least two explanations for the historical development of mahr in Islamic marriage contracts. Each explanation is grounded in features of Islamic law that differ from the law of Maryland.

First, a mahr can operate as a disincentive for a husband to exercise his disproportionate power to divorce his wife without cause under Islamic law. Traditionally—and today, “where [] Islamic law has been adopted as the secular law of a jurisdiction”—”a husband has a virtual automatic right to talaq, []i.e., to divorce his wife by acknowledging ‘I divorce thee’ three times[].” “[T]he wife only has a right to talaq if it is in the written marriage agreement or if [the husband] otherwise delegates that right to her.” Otherwise, she may obtain a divorce only with her husband’s consent or for cause from an Islamic judge. If the husband invokes his right of talaq, however, then the mahr generally becomes payable immediately.

Second, because Islamic law does not recognize marital property, a mahr can provide a wife with some financial security in the event of divorce or the husband’s death. Under traditional Islamic law, upon dissolution of a marriage, the wife is not entitled to a disposition of marital property, nor does she have any claim to alimony or child support. Absent operation of a civil law providing such rights, the mahr is thus the exclusive compensation payable to the wife upon divorce.

Although the governing laws in this country recognize marital property and do not recognize talaq divorces, many American couples continue to enter Islamic marriage contracts that contain mahrs….

The court concluded that mahrs can be enforced under “neutral principles of law,” like secular prenuptial agreements. Under Maryland law, such agreements are enforceable, though under special rules applicable to agreements (whether secular or religious) entered within “confidential relationships”:

[Under Maryland precedents,] “… a confidential relationship exists, as a matter of law, between the parties entering an antenuptial agreement.” … [T]he existence of the confidential relationship means that: (1) “the burden of proof correctly falls upon the party seeking to enforce the agreement”; and (2) the “correct standard for determining the validity of an antenuptial agreement [is] … whether there is an ‘overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or procurement.'”

The party seeking to enforce the agreement may show the absence of overreaching in a number of ways. He or she may (a) “document[] a full, frank, and truthful disclosure of his or her assets and their worth before the antenuptial agreement is signed,” (b) demonstrate the other party’s “knowledge of th[ose] assets,” (c) show that the agreement “was not unfairly disproportionate … at the time the agreement was entered,” or (d) otherwise prove that “overreaching did not occur.” With respect to the last option, the Court suggested that “the trial court may consider such factors as the extent of the disclosure (if any), whether the attacking party had the opportunity to seek legal advice before signing the agreement, and whether the attacking party voluntarily and knowingly relinquished his or her rights.” …

The mahrs were not inherently “void as against public policy”:

First, properly construed and analyzed as contracts between parties in a confidential relationship, the mahrs do not conflict with public policy because Maryland law expressly permits couples to enter contracts that alter the presumptive consequences of the dissolution of a marriage….

{To avoid any misunderstanding, we add a cautionary note about our holding today…. [O]ne purpose attributed to mahrs—as they developed in societies governed by legal systems that do not recognize marital property—is to provide women a means of support after divorce or the husband’s death. As a result, some have argued that entering a mahr constitutes an implied waiver of rights to marital property, a monetary award, or spousal support. Neither Dr. Nouri nor Mr. Ghazirad has advanced that argument here. In any event, based on our holding that mahrs may be enforced only if their purely secular terms satisfy the heightened standards applicable to agreements entered into by parties in a confidential relationship, we do not see how any such purportedly implied waiver could ever be enforceable in a Maryland court.}

Second, the mahrs do not unreasonably encourage divorce. Neither of these mahrs is expressly contingent on divorce. Thus, In re Marriage of Noghrey, 215 Cal. Rptr. 153 (Ct. App. 1985), on which Dr. Nouri and Mr. Ghazirad both rely, is inapposite. There, the California intermediate appellate court addressed the enforceability of a ketubah [Jewish marriage contract] provision that promised the wife “$500,000.00 or one-half of [the husband’s] assets, whichever is greater, in the event of a divorce.” The court held that the provision “encourage[d] and promote[d] divorce” and was therefore “contrary to the public policy of th[e] state and unenforceable.” It reasoned that the agreement “constitute[d] a promise by the husband to give the wife a very substantial amount of money and property, but only upon the occurrence of a divorce.” If “the husband suffer[ed] an untimely demise,” conversely, then that would “nullify[] the contract, and the wife’s right to the money and property.” The ketubah provision thus “encouraged [the wife] … to seek a dissolution, and with all deliberate speed,” to obtain the amount promised. { Neilson v. Neilson, 780 P.2d 1264 (Utah Ct. App. 1989), and In re Marriage of Dajani, 251 Cal. Rptr. 871 (Ct. App. 1988), … are to similar effect as Noghrey ….}

Here, unlike the agreement in Noghrey, neither of the agreements is expressly ontingent on divorce, nor is either subject to cancellation upon the husband’s death. Moreover, one purpose for which mahrs exist generally is to discourage divorce, and nothing in the record of either case suggests that the prospect of a mahr payment actually encouraged the breakup of either marriage. Although the contents of most premarital agreements could, depending on circumstances, be deemed to encourage one party or the other to seek a divorce—or at least to make that path more palatable—Dr. Nouri and Mr. Ghazirad have not demonstrated that mahrs generally, or these mahrs specifically, unreasonably “encourage[d] or promote[d] dissolution” of marriage in violation of public policy….

And the court expressed skepticism about the argument that the contracts violated the Equal Protection Clause “because, as a matter of Islamic religious practice, they are payable only by men to women, and never by women to men” (though it ultimately didn’t fully resolve it, because it hadn’t been properly made):

The essence of the argument is that under Islamic religious law, a mahr is an obligation that runs from a man to a woman, and never the other way. As we have discussed at length, however, the duty of a secular court is to interpret the secular terms of a contract, not Islamic (or any other) religious law.

We do not consider, much less pass judgment on, any religious doctrines or personal beliefs that may have motivated parties to enter a mahr or craft its terms, and we will enforce the secular terms of the agreement provided they are valid under neutral principles of law and do not offend the laws or public policy of our State or federal governments. Indeed, a Maryland court would not treat any differently an identically-worded provision running from a woman to a man or between individuals of the same sex and gender, whether contained in an Islamic marriage contract, a contract arising in a different religious context, or an entirely secular agreement.

Here, the secular terms of Dr. Nouri’s mahr require him to pay Dr. Dadgar a certain sum. Enforcing one spouse’s agreement to make a payment to the other does not offend guarantees of equal protection.

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