Long Island Family Law and Mediation Blog
Under Islamic law, marriage itself is a civil contract, and both spouses must have the legal ability to make a contract to create an enforceable marriage. Traditional Muslim marriage contracts include a provision called mahr. The mahr is automatically a wife’s separate property under Islamic law, and it supposed to help the wife financially after the dissolution of a marriage and to discourage a husband from exercising the right to repudiate the marriage.
Before entering into a marriage contract, the parties customarily discuss the amount of mahr. However, it’s not “consideration” for the marriage, and the mahr isn’t a prenuptial agreement, according to Islamic attorneys and scholars. The actual giving of the gift is postponed to the dissolution of the marriage or the death of the husband. Within Islamic law, the mahr is considered a gift that a husband must give the wife once a marriage contract is concluded.
New York courts, however, have usually interpreted the mahr as a dowry or a prenuptial agreement, rather than a simple contract. If they are approached as a simple contract, mahr and other agreements before an Imam are likely to be enforced. However, prenuptial agreements in New York must also be in writing and signed before the marriage. Although there is no obligation to make financial disclosures, if they are voluntarily made, they must be true.
Whether a marriage-related agreement before an Imam will be enforced depends also on whether it meets the requirements of any other prenuptial agreement that a couple wishes to enforce in New York. In OY v. AG, a plaintiff asked for an order against the defendant in connection with the parties’ Egyptian marriage contract. The couple was married in a Muslim ceremony in Egypt. The marriage contract required a mahr to be paid if the husband died or the parties were divorced. The mahr in this case was $131.00.
The husband argued the parties were bound by the contract they entered into when they married in Egypt under Islamic law and Egyptian civil law. He submitted materials to prove that the initial marriage agreement comported with legal requirements because it was written and signed by the parties and acknowledged in accordance with Islamic and Egyptian law.
The court explained that the Islamic marriage contract was an enforceable document in New York, even though it was executed under Islamic law. It cited an earlier case in which a mahr agreement was executed and signed in New York under Islamic law under the supervision of an Imam. When the wife divorced, she sought the payment of the mahr, and the court found the parties had executed an enforceable contract that satisfied the requirements of the statute of frauds.
The court also cited a different case in which the ceremony was performed in front of an Imam in New Jersey. Although the signatures were witnessed, and videotape showed the parties read and signed the license and mahr voluntarily, the mahr was not enforced because it was executed after the marriage and thus didn’t qualify as a prenuptial agreement under New Jersey law.
The court reasoned that in the current case, the husband didn’t confirm that the mahr could be enforced in New York. The mahr in this case wasn’t signed by the plaintiff but by her uncle as her proxy. The court explained that if this was consistent with Islamic law or Egyptian civil law, even though it was signed by the wife’s uncle as proxy, the defendant had to provide proof to that effect.
Citing to another case, the court explained that a mahr is only enforceable if it is also properly authenticated under New York law. However, in this case, the amount conferred only a tiny benefit of $131. Therefore, it found that there was no reason to expend time trying to prove the validity of the mahr and that it wasn’t enforceable in New York.
Similarly, in HT v. AE, a 2014 case, the court explained that a couple’s agreement before or during a marriage is enforceable in a divorce if it’s written, subscribed by both spouses, and acknowledged or proven in the manner by which a deed is entitled to be recorded.
If you are trying to enforce a marital agreement during divorce in New York, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law attorney and mediator.
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