Mehr: A Most Solemn Pledge

by some Muslims, are based on ignorance or some un-Islamic cultural habits.

There is no fixed amount. However, the Sharia advises that it be reasonable and established according to the husband’s financial circumstances and the location’s socioeconomic conditions. In other words, those norms that existed in seventhth-century Arabia or elsewhere in the Muslim world are irrelevant. As financial conditions change, the amount of mehr must be determined accordingly.

The Prophet (salla Allahu ‘alayhi wa sallam), who urged moderation in all matters, said, “The nikah that is greatest in blessings is the one that is least burdensome” (al-Haythami, “Kitab al-Nikah,” 4:255). And yet some Muslims declare a large mehr to boast how much their daughter is “worth,” only to seek a way out when it has to be paid.

Sometimes the bride’s family pressures the groom and his family for a large amount (and even by mutual agreement) or the groom does so to impress the in-laws or attract the desired bride. Such deceit is based on the common assumption that this is just a “paper” commitment, for people are often overheard saying, “Write whatever you want, for no one asks and no one pays.” One wonders if they have forgotten that Muslims should only commit to what they can — and intend to — pay. It is unlawful to deny her the mehr, especially after having had intimacy with one’s wife: “How can you take it away after each one has enjoyed the other, and they have taken a firm covenant from you.” (4:21).)

Mehr is not recognized in all American courts. For instance, Alabama, Arkansas, Arizona, Louisiana, Kansas, Mississippi North Carolina, Oklahoma, South Dakota, Tennessee, and Washington prohibit the use of “foreign law” (read “Sharia”) in their state courts.

Mehr is poorly understood in the U.S. For example, American courts routinely dismiss such agreements as non-binding, symbolic or superfluous. With the rise of Islamophobia and attempts to ban the Sharia, some state courts refuse to honor this “foreign law.” Some Muslim men also argue — wrongly — that an ex-wife only receives her mehr and nothing else. While many judges are fair and want to honor this particular contract, they don’t know the relevant legal details or become confused with claims and counterclaims.

Like some other faith communities, Muslims should set up arbitration councils so that Muslim scholars can look at the issues associated with mehr and other family issues from the overall perspective of the Sharia. After all, Islam teaches fairness and justice in all matters. ih

Muzammil H. Siddiqi, Ph.D., is a former ISNA president, imam and religious director of the Islamic Society of Orange County, Garden Grove. He chairs the Fiqh Council of North America, is a founding member of the World Economic Forum’s Community of West and Islam Dialogue (C-100) and signatory of A Common Word Between Us and You (2007).

Do Muslims know there is no waiver of mehr, the wife’s inalienable and legally-protected right?

BY ABED AWAD

For the past 22 years, I have been representing Muslim Americans in contested family matters, including mehr disputes. With more than 6 million Muslim Americans, I estimate there are more than 1 million executed Muslim marriage contracts in the U.S.

An introduction to the Islamic law governing these contracts, followed by a summary of how American courts have resolved such disputes, is provided below.

The Quran describes marriage (zawaj or nikah) as “a most solemn pledge” (4:19). The woman and man were created from “one soul,” the Quran explains, in order for you to “find solace” together. The intimate marital relationship thus becomes a divine “wonder” in which “love and mercy” are instilled in the couple’s hearts to bring them tranquil “comfort” (30:21). Marriage, then, was the building block that sustained moral Muslim societies. Muslim jurists concluded that marriage is obligatory for most Muslims.

In addition to its moral and social underpinnings, marriage is considered a civil contract. A valid marriage contract requires an offer of marriage and its acceptance in the presence of two Muslim witnesses. With some exceptions, a male guardian (wali), normally the bride’s father, must be present to render the contract valid.

The bride has tremendous leeway to negotiate her marriage contract’s terms. Conditions in the contract are valid as long as they do not violate Islamic law. Popular stipulations cover finances, marital residence, domicile, living conditions, children, equal right to initiate divorce, rights to work and to education, equal division of domestic responsibilities and restrictions on polygamy.

A mehr or sadaq is a standard provision in every Muslim marriage contract. The mehr is a specific amount of money or property that the groom pledges to pay to the bride. Generally, ithas two portions: the immediate portion paid prior to consummation, and the remaining portion deferred until after their union has been consummated. This latter portion is to be paid: (1) upon demand, (2) as specified in the contract, (3) upon talaq (a form of divorce) or (4) death of the husband. In fact, this right is so established that in most Muslim countries the husband is subject to imprisonment if he fails to pay the mehr. If he predeceases

his wife, the mehr is a preferential debt to be paid from his gross estate; if the wife predeceases her husband, her mehr passes to her Islamically defined heirs.

A Muslim marriage is dissolved, cancelled or terminated by several methods. A husband’s unilateral and exclusive right to dissolve the marriage is called talaq. But talaq, which literally means “repudiation of a marriage,” is only one method to dissolve a marital relationship under Islamic

In Altayar v. Muhyaddin 139 Wash.App. 1066 (Wash.App.Div. 2007), the court construed the mehr as a prenuptial agreement but held that it was invalid under state law because a “[p]renuptial agreement is valid only when it is plainly shown that the transaction was fair” and that “the exchange of 19 pieces of gold for equitable property rights under Washington law is not fair .... Even if it were a fair agreement, there is no evidence that he disclosed his assets or that [wife]

THE CIRCUMSTANCES SURROUNDING PRENUPTIAL AGREEMENT ARE NOT APPLICABLE TO A MEHR AGREEMENT, BECAUSE IT IS NOT A WAIVER OF THE RIGHTS TO WHICH A WIFE IS ENTITLED UNDER STATE LAW OR ISLAMIC LAW.

law, for there are numerous other options. The two other primary methods are tafreeq (judicial divorce based on fault) and khul’. In the latter case, the wife asks her husband to consent to her request for a divorce in exchange for some financial compensation, which may involve her waiving the payment of any deferred mehr. If she chooses to dissolve her marriage in this manner, she must prove the need for a divorce based on various grounds, such as causing harm, failure to support and/or separation.

The due date for the deferred mehr depends on the contract’s terms. Shia law provides that the mehr is due upon demand if the contract does not specify a due date. Sunni law requires that it be paid upon divorce or the husband’s death if the contract is silent on the due date. A wife requesting khul’ may waive her deferred mehr to obtain her husband’s consent. A husband who wrongfully withholds the divorce or creates an abusive marital environment to force her to request khul’ in order to extract financial leverage is actually violating Islamic law. In such a case, the wife is not required to forfeit her deferred mehr.

HOW HAVE AMERICAN COURTS RESOLVED MEHR DISPUTES? The First Amendment prohibits American courts from interpreting and/or applying religious law. For this reason, they have evaluated Muslim marriage contracts under two secular legal theories: They are either prenuptial agreements or simple contracts. received any independent advice during the three days between their initial meeting and marriage.”

Unlike Altayar, the court in Odatalla v. Odatalla (the author was the attorney for the wife), 355 N.J. Super. 305, 309-312, 810 A.2d 93 (Ch. Div., 2002) enforced the mehr agreement, finding that it satisfied the elements of a valid simple contract.

“Clearly”, the Odatalla court explained, “the Mehr Agreement [here] ... is nothing more and nothing less than a simple contract between two consenting adults. It does not contravene any statute or interests of society. Rather, the Mehr Agreement continues a custom and tradition that is unique to a certain segment of our current society and is not at war with any public morals.”

In re Marriage of Obaidi, 154 Wn. App. 609; 226 P.3d 787 (2010), the court adopted the simple contract theory in Odatalla but found that the mehr agreement was not enforceable. The husband was advised of the mehr ceremony 15 minutes before he signed the Farsi marriage contract. However, because he did not read, write or speak Farsi and the families had pressured him to sign the agreement, the court held there was no meeting of the minds.

In the consolidated appeals of Nouri v. Dadgar (the author was the Islamic law expert for the wife) and Ghazirad v. Mojarrad, 245 Md. App. 324 (2020), the Maryland Court of Special Appeals adopted the stringent prenuptial standard. The same trial judge in both matters held that the mehr — valued at $492,750 in Nouri and $225,000 in Ghazirad — were enforceable contractual obligations. The trial court applied the simple contract theory.

The Appeals Court agreed with the trial judge that a mehr agreement is enforceable under neutral principles of law, does not violate public policy or involve the resolution of religious issues. But that was not enough to affirm its validity. The Appeals Court therefore reversed the trial decision and returned it to the trial court to apply the new more stringent prenuptial agreement standard, which requires legal advice and financial disclosures before signing the mehr agreement.

NEVER A PRENUPTIAL AGREEMENT Prenuptial agreements, unlike the Muslim marriage contract, were created in the 20th century. Until recently, many states considered them to be contrary to public policy. Prenuptial agreements attempt to alter the state-imposed statutory default formula for spousal rights. Courts considered a prospective wife to be in an unequal bargaining position, and therefore in need of certain protections before validating waivers of a statutory marital rights. Not surprisingly, the majority of states require premarital agreements to include advice of counsel and fair financial disclosure. This is a near impossible burden for a Muslim wife to meet, inasmuch as the bride and groom in a Muslim marriage ceremony never exchange financials nor consult an attorney to review their marriage contract.

The circumstances surrounding a prenuptial agreement are not applicable to a mehr agreement, because it is not a waiver of the rights to which a wife is entitled under state law or Islamic law. The mehr does not waive the spouses’ state law rights, including community property, equitable distribution, alimony and inheritance.

Since the seventh century, Muslim women have received their mehr as a matter of law, religion and traditions. Unfortunately, recent cases like Nouri are based on misunderstanding the nature of the mehr. The unjust consequences of this misunderstanding are far reaching. Millions of mehr in the U.S. would not satisfy the stringent prenuptial standard. ih

Abed Awad is an attorney and international Islamic law expert who taught at Rutgers University Law School and Pace Law School. He is AV rated by Martindale-Hubbell and is a fellow of the International Academy of Family Lawyers. Awad is the CEO and founder of Shariawiz.com, the most trusted and award-winning online portal for making Islamic wills and Islamic trusts.