SHARIAsource

""Khan v. Hasan, the New York intermediate appellate court held that a mahr agreement under which the husband agreed to pay a sum of money to the wife in the event of divorce was unenforceable under New York state law because the verbal agreement did not conform to New York's laws on matrimonial agreements, which require such agreements to be in writing. The Court further held with regard to the question of applying Islamic law to interpret the alleged agreement: 'It is without question that when courts must touch upon questions of religious concerns, they may not consider religious doctrine.'"

The Ohio Court of Appeals affirmed the trial court’s refusal to enforce an Islamic marriage contract, which called for a postponed dowry (mahr) owed by the husband to the wife upon death or divorce of $25,000. The Court found that the groom was coerced into signing the agreement, and thus it was not valid. The Court did not delve into the potential First Amendment Establishment Clause issues considered by the Franklin County Court of Common Pleas.

In Danial Latifi & Anr v. Union of India, the Supreme Court of India (the “Court”) considers whether the Muslim Women Protection of Rights on Divorce Act, 1986 (“the Act”) abrogates its ruling in Mohd. Ahmed Khan v. Shah Bano Begum and Others (“Shah Bano”).[1] In Shah Bano, the Court held that divorced Muslim women unable to support themselves have a right to lifetime maintenance under Section 127 of the Indian Code of Criminal Procedure, which does not conflict with Muslim Personal Law[2] ostensibly limiting rights to mahr[3] and maintenance during the period of iddat.[4] [5] In Danial Latifi, the Court holds that the Act did not overturn Shah Bano, but instead that divorced Muslim women who are unable to maintain themselves are entitled to receive a one-time lump sum payment during the period of iddat sufficient for lifetime maintenance. The Court chiefly justifies this ruling by arguing that abrogating Shah Bano, would violate various constitutional rights of Muslim women. The Court also makes prudential arguments concerning the impact of abrogating Shah Bano on divorced Muslim women’s economic circumstances, and moreover holds that abrogation would be contrary to Islamic law.

[1] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).

[2] India has a uniform criminal code, but different personal codes addressing family law for various religious communities. This dual system is very controversial in India.

[3] A sum agreed upon prior to marriage to be given to a wife in two parts (one deferred and one immediate).

[4] The roughly three-month period where re-marriage is forbidden to divorced women.

[5] Shah Bano produced political backlash resulting in the passage of the Act referenced above, with the intention of overturning the ruling. See supra note 1.

In a divorce proceeding involving a prenuptial agreement (Islamic marriage contract) between a Muslim husband and wife, the California Court of Appeals considered the validity of a provision requiring the husband to pay 3,000 Jordanian dinars as well as 2,000 dinars of either cash or household furniture as a “deferred dowry” (known as mahr or ṣadāq) due to the wife upon death or divorce. The husband claimed that the deferred dowry is not due where, as here, the wife initiates the divorce proceeding. The court concluded that, regardless of the individual claims, requiring payment of one party to the other upon divorce was an example of prohibited “divorce profiteering” and that, “if the court had accepted the position of wife’s expert, the contract would not have been enforceable under the public policy of the state.” Accordingly, the Court upheld the lower court's decision not to enforce that provision of the agreement.

The Texas Court of Appeals reversed a state district court’s decision to uphold an Islamic marriage contract that awarded the wife a deferred dowry (mahr), an amount agreed upon at the time of marriage and due to the wife from the husband or his estate upon death or divorce, of $50,000. The district court had concluded that the amount was due pursuant to a marital contract made by the parties “in contemplation of a forthcoming marriage,” constituting “a valid, binding, and enforceable contract under Sections 4.001-003 of the Texas Family Code.” The appellate court reversed and remanded to the lower court, concluding that the agreement was not a valid premarital contract under the state law, defined as “an agreement between prospective spouses made in contemplation of marriage,” because the religious wedding ceremony occurred before the contract was signed. As the contract fell outside of the definition of premarital contract, the Court concluded that it could not be enforced like one. 

The Act replaced the Iranian Family Protection Act 1975 and modified other family law provisions as embodied in the Civil Code and the Divorce Act 1992. It contains procedural matters (Family Courts, Family Consultation Centers) as well as substantial ones (marriage, divorce, custody, nafaqa, alimony and pensions) and the criminal sanctions. Major changes introduced generally are:

A) The Family Court now involves a female consultant judge who is to give her opinion in each case, which the sitting judge (a man as in other courts) has to consider, but not to follow, in deciding the case;

B) The jurisdiction of the Family Court is now extended to additional matters, including child adoption, embryo donation, and sex change;

C) The process for divorce by mutual consent is facilitated;

D) The value of the Mahr (or the portion of the Mahr) for collecting which the debtor imprisonment provisions can be invoked is now limited to a specified amount (equal to 110 gold coin);

E) Temporary marriage needs not be registered now save in specific situations;

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

The first defendant (Neima Mohamed, herein Neima), as the plaintiff in the court of first instance, had submitted that:

1. On 4 April 2004, she and the plaintiff (Mostafa Mohamed, herein Mostafa) were married;
2. On 28 February 2005, the parties had executed a pre-nuptial financial agreement that would regulate their financial affairs during and after their marriage;
3. The agreement stated that Mostafa should pay to Neima $50,000.00 if he initiated separation or divorce proceedings against her; and
4. On 11 September 2008, Mostafa Islamically divorced Neima.

Mostafa denied marrying Neima, did not admit points 2 and 3, and denied Islamically divorcing her. Moreover, Mostafa submitted that any separation of the parties had been initiated by Neima.

Before the court of first instance, Mostafa denied having been married to Neima under Islamic law. Her Honour Magistrate Trad did not answer that question, but rather found that the parties had been in a 'domestic relationship'. Regardless, the parties could not agree who initiated the separation and on which date the separation occurred. Mostafa claimed that Neima had initiated the separation on 11 September 2008 by taking his key to their Rockdale unit, while Neima claimed that Mostafa, on 11 April 2007, had asked her to leave their home, and alternatively, on 11 September 2008, had Islamically divorced her.

On the facts, Magistrate Trad found that Mostafa had initiated the divorce on 11 April 2007, further evidenced by him sending his daughter to tell Neima to leave by a certain date, with directions as to the division of their property. Therefore, her Honour found that sufficient evidence existed to activate cl 11 of the parties' agreement, compelling Mostafa to pay to Neima the agreed-upon sum of $50,000.00 (Moackar Sadak or dowry).

On appeal, Harrison AsJ found that Mostafa could appeal the initial decision pursuant to s 69 of the Supreme Court Act 1970, which granted the Court jurisdiction to quash the decision of a lower court if based on an error of law. Mostafa sought to dispute the findings of Magistrate Trad in their entirety on the following grounds:

1. that her Honour had made errors of fact and law;
2. that the decision suffered from jurisdictional error;
3. that her Honour had failed to acknowledge that the agreement had not been executed in accordance with the law;
4. that her Honour had failed to find that the agreement was unenforceable because it conflicted with public policy; and
5. that her Honour had erred by failing to find that the separation, for the purposes of the agreement, did not have to accord with shari'a law.

With regards to appeal ground 4, Mostafa submitted that her Honour had failed to recognise that the agreement was one of servitude in that it compelled Mostafa to remain in a relationship with Neima, lest he pay her $50,000.00. Moreover, it was contrary to public policy for her Honour to determine which party had left the relationship, and cl 11 was void for illegality as it was a penalty clause. The Court found the precedent cited in support of its submission by Mostafa's counsel to be somewhat irrelevant. It found the precedent cited by Neima's counsel, which stated that the court would, where possible, hold parties seeking separation or divorce to their agreement, relevant. The Court also acknowledged the issue of the payment of Moackar Sadak, noting that the lack of any precedent regarding such payment in Australia may necessitate seeing how other common law countries have approached such agreements. The Court also provided a brief discussion on mahr, based on Ann Black and Kerrie Sadiq's, 'Good and Bad Sharia: Australia's Mixed Response to Islamic Law' (2011) 17 UNSW Law Journal 82, noting that mahr appeared to be what the parties meant by Moackar Sadak. The Court found that cases dealing with mahr from the United States, Canada and the United Kingdom all found such agreements enforceable, provided they could not be invalidated for other reasons. Counsel for Neima submitted that, while some customs might be contrary to public policy, what is of utmost importance in enforcing such an agreement is that the parties to the agreement knowingly and voluntarily adhered to those customs.

Harrison AsJ found that, in enforcing such agreements, courts of common law countries have applied common law or the relevant legislation (if any), rather than sharīʿa law. Moreover, that none of these courts found that agreements such as that made by the parties in this instance contradict public policy. Harrison AsJ also dismissed Mostafa's argument that it was not for the Court to decide who left the relationship, stating that '[c]ourts are often called upon, especially in family matters, to determine sensitive factual matters such as when a relationship has ended, or whether it was indeed a de facto relationship...'.

With regards to Mostafa's submission that cl 11 was a penalty clause, Harrison AsJ disagreed. Her Honour found that the Property (Relationships) Act and the Family Law Act allowed parties to enter into financial agreements. Moreover, that cl 11 formed part of the 'greater bargain' between the parties.

Harrison AsJ also dismissed Mostafa's submissions that the court of first instance did not have jurisdiction to adjudicate the validity of the agreement, or to determine whether or not the parties' separation had to accord with sharīʿa law. The Court found that as the agreement had neither specified an appropriate dispute resolution forum or jurisdiction (common law or sharīʿa law), nothing precluded the court of first instance from adjudicating the case. Secondly, that Magistrate Trad had not considered the meaning of 'divorce' under sharīʿa law, instead determining when the separation had occurred on the facts. The Court also noted that Mostafa had not relied on any expert evidence relating to sharīʿa law, and that Magistrate Trad was in no way required to apply sharīʿa law to interpret the parties' agreement.

Mostafa's counsel conceded the inapplicability of the Property (Relationships) Act but argued that Magistrate Trad had applied it regardless. The Court found it irrelevant whether or not the agreement satisfied the requirements of the Property (Relationships) Act, stating that Magistrate Trad had correctly applied the laws of contract to the agreement.

Mostafa also submitted that as the parties had not been married under Australian law, the agreement was unenforceable because the terms 'separation' and 'divorce', per cl 11 of the agreement, are inapplicable to de facto relationships. The Court agreed to consider whether or not marriage under Australian law was a condition precedent to the enforceability of the agreement, but concurred with Neima's counsel that, among other submissions, the agreement did not specify marriage under Australian law as a condition precedent to the enforceability of the agreement, or to cl 11 specifically. Moreover, that the word 'separation' is distinct from 'divorce' and is applicable to the cessation of a de facto relationship. The Court also noted that the agreement was to secure the parties' individual assets, as both parties had been previously married and had significant assets individually.

With regards to which party initiated the separation and on what date, Harrsion AsJ noted Magistrate Trad's deliberations and that her Honour was unable to rely on any 'so-called independent witnesses' because all the evidence provided by witnesses had been informed by what the parties had told them. Magistrate Trad had, therefore, relied on Neima's evidence that, on 11 April 2007, the parties had argued and Mostafa had waved a knife in front of Neima. That evening Mostafa's daughter, accompanied by a police officer, had come to collect some of Mostafa's belongings and to give her a list separating the parties' belongings. On 13 April 2007, Neima moved out of the parties' unit. While the parties had attempted to reconcile, in September 2008, following another argument, Mostafa said the words 'you are divorced' to Neima. Mostafa denied this, stating that Neima had initiated the separation in September 2008 by asking him to leave their Lakemba unit. Mostafa also denied saying the words 'I divorce you'.

All other submissions made by Mostafa on appeal were dismissed on the grounds that they were not covered in Mostafa's submissions. Harrison AsJ also found that Magistrate Trad had made her findings pursuant to ample evidence. Harrison AsJ noted that this appeal raised religious and cultural issues not previously dealt with by the Australian courts, and that the question of how such agreements should be dealt with would be referred to the Australian Law Reform Commission and NSW Law Reform Commission for their consideration.