Saturday, January 17, 2009

Is Mahr Enforceable in a Court of Law?






Love Struck

When I was in law school in Toledo, one of my classmates told me that when he married his Palestinian wife, on the wedding eve, the father of the bride made him sign a paper saying that he owes his wife $100,000 in the event of a divorce. The love struck young man was reluctant to sign it but could not protest given that that would have caused a lot of problems (a possible bridezilla outbreak?). He told me that now he knows that that paper has no value as a contract since if it did meet all the requirements of a valid contract as set by Ohio law and was executed under duress.

It does not have to be this way.

What is Mahr? It’s easy to say what it is not-
It is not dower, not dowry and not bride price.
Mahr is frequently misunderstood as dowry. It is not. It is not a bride’s price, and not dower. Dowry is assets (goods, money and real estate) that a wife brings to her new husband- it’s a common practice in India. It becomes the husband’s property. Bride price is money that is given to the parents of the bride to marry their daughter. Dower is the wife’s interest in the property of the husband.
Mahr clearly is not bride price, dower or dowry.

Simply put Mahr is, in essence, a gift from the man to the bride. There is no valid Islamic marriage without a stated Mahr which can be upfront and/ or deferred. The Mahr is an intinsic element of the religious marriage agreement.

Most of the time it’s money but could be real estate or other things of value. It can be paid upfront or deferred upon the event of the dissolution of the marriage. If the wife asks for a divorce, and the husband is not at fault, then the wife is usually required by Islamic law to return the Mahr to her husband.
Mahr is not an Ante-nuptial Agreement
Mahr agreement has been compared to a pre nuptial agreement. It is not a pre- nuptial agreement and courts applying the standards and requirements for a valid pre- nuptial agreement are bound to erroneously invalidate a Mahr agreement.
A pre- nuptial agreement, unlike a standard contract, has a lot of requirements that are determined by state law such as that there is full disclosure of the assets of the parties and that the parties had the opportunity to seek legal counsel. This is a very high standard to meet. A pre-nuptial agreement is a mechanism to resolve the financial issues of the parties in case of a divorce. This is not the purpose of the Mahr agreement.
The Mahr agreement, by its very nature, is not an ante-nuptial agreement.
It’s more accurate to understand the Mahr agreement as a regular contract between adults.
Can Mahr be Devised As a Valid Contract?
If the requirements of a valid contract as defined by state law are met, then there is a strong likelihood of the Mahr agreement being upheld in the court. The common defenses against the enforcement of a contact, such as duress, should be kept in mind when drafting and executing a Mahr contract. If it looks like any other valid contract then the allegations that it is simply a matrimonial action, a religious ceremony or religious agreement, should not be recognized as changing the nature of the Mahr as a contract under state law regardless if it is part of a religious ceremony.
Institutional Response Needed
What needs to be done is an institutional response to the dilemma of Islamic issues arising in the context of the American legal system. Legal documents and strategies should be developed to become standard templates to be used by parties agreeing on Islamic matters such as the Mahr.

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