Islamic Marriage Contracts May be Enforceable

Islamic marriage contracts may be enforceable under limited circumstances.

A marriage within the Islamic culture typically requires that the couple sign a marriage contract prior to the marriage ceremony.  The contract usually includes what is called a “mahr.”  This is what the husband intends to give to the wife either immediately upon marriage or it is deferred until the marriage ends either due to divorce or death.  A mahr is the opposite of what English common law called a “dowry,” which is what a husband expected to get after marrying a woman.  The mahr amount for a couple of average means is often somewhere around $25,000, although not only money may be offered as a mahr.

In essence then, the Islamic marriage contract can be considered a sort of prenuptial agreement.  Some courts have been reluctant to enforce these contracts under contract law because payment of the mahr is considered a religious act and federal and state laws prohibit forcing someone to engage in a religious act.  Courts have enforced these contracts, under prenuptial agreement law, but prenuptial agreements must meet specific criteria to be enforceable.  Because of the way the Islamic marriage contract is agreed upon, this poses a problem for its enforcement.

According to the guidelines posted on http://www.ladanlaw.com/, in order to be enforceable in Ohio courts, a prenuptial agreement is enforceable only if 1) it was entered into without fraud, duress, coercion of overreaching 2) there was full disclosure about the spouse’s assets and the other spouse understood the value of those assets and 3) the terms of the contract do no promote divorce or making money off of divorce.

A big problem for the enforcement of a mahr in Islamic marriage contracts is that the contracts are often discussed and signed shortly before the wedding ceremony.  Courts view this as a form of duress when a spouse learns about and signs a contract shortly before the wedding.  This is could be as short as minutes, days or weeks.  Typically then, plans have already been made, guests have been invited, and it would be an embarrassment for a spouse’s family if the wedding were delayed while one of the spouses is considering whether to sign the prenuptial agreement.

So, Islamic marriage contracts may be enforceable under limited circumstances.  The best thing to do to make an Islamic marriage contract enforceable is for both spouses to disclose the value of all their assets and to have ample time to contact a lawyer and to consider whether to enter into the agreement.