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Written by Daria B. Janka, Esq. & Cynthia N. Grob, Esq.
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American Courts increasingly must deal with how to treat shari’ah law in divorce proceedings.
To quote a Mhar Agreement: “This is a prompt Mahr: One gold coin, sum of money and jewelry to be given prior to marriage, sum of money deferred and to be paid upon the divorce of the parties. This contract is to be governed by Islamic Law.”
Did you know that the First Amendment might not preclude a Court from enforcing a Mahr agreement? How far have the Courts gone on to treat the agreement as a valid prenuptial agreement, or to nullify it, or to incorporate it as part of the equitable distribution division of the assets?
Mahr agreements are Islamic religious agreements entered into prior to marriage and are governed by Shari’ah law. For many Muslims the Shari’ah is more than “law” it includes the methodology and process of ascertaining divine meaning and as such forms the moral and legal anchor of a Muslim’s existence. In all interactions, under Shari’ah, a Muslim is governed by the same degree of honesty, good faith, an eye to fairness, social responsibility, and equity essentially they are to live an ethical life seeking to please God.
Many times Mahr agreements contain all elements of a secular contract between the parties. Mahr is not a dower because it does not involve the bride’s father paying the groom but rather the groom must pay a price for the woman. If they do not agree to a price, one will be determined by the Court. In the bluntest terms, in the Islamic world, marriage is more of a contract than a sacrament. Islam emphasizes orthopraxis rather than orthodoxy and theology. The difficulty lies where a particular religion has developed an extensive system of laws. Those laws govern marriage and divorce, alike. Under New Jersey jurisprudence, it is a basic established principle that “a contract is a set of promises for the breach of which the law gives a remedy, or performance of which the law in some way recognizes as a duty.” Reinstatement (Second) of Contracts § 1 (1979).
The questions our Courts are faced with are what are Mahr agreements, what did the parties agree to, and is their contract enforceable? Is a Mahr a prenuptial agreement? Is it a simple contract?
In the New Jersey case of Odatalla v. Odatalla, 355 N.J. Super 305 (2002), the Court applied a two-prong test to determine whether a religious agreement is enforceable during divorce proceedings. Namely, is the contract: (1) capable of specific performance under “neutral principles of law” and (2) once those “neutral principles of law” are applied, does the agreement in question meet the state’s standards for those principles? The trial court enforced the dower provision holding that applying neutral principles of law (i.e., the principals of contract law in New Jersey), the Mahr agreement satisfied the all of the elements of a valid civil contract. The court used the evidence adduced from a period prior to the contract to interpret the meaning of the words of the contract and concluded that the ten thousand dollar deferred portion of the Mahr was due upon the dissolution of the marriage under the contract. It is important to note that the Court equitably distributed marital property, assets and debt and made findings as to alimony in the matter.
This New Jersey Court decision closely followed the New York Court decision in the case of Avitzur v. Avitzur, 58 N.Y.2d 108 (N.Y. 1993) addressing Jewish marital agreement. In Avitzur, the Court held there was nothing in law or public policy that prevented judicial recognition and enforcement of the secular terms of a religious marriage agreement because there was no excessive entanglement between church and state when the court applied neutral principles of contract law to decide the case. This approach is consistent with Jones v. Wolf, 443 U.S. 595, 9 S. Ct. 3020 (1979) which explained that the “neutral principles of law” approach that allows agreements to be enforced based upon neutral principles of law as opposed to religious doctrine.
This approach, however, could run afoul of the parol evidence rule, which bars the introduction of extrinsic evidence to clarify the meaning of a contract, and is in essence rewriting agreements. The parol evidence rule of contract law stands for the principle that parol evidence cannot be introduced to create, vary or contradict a term of a contract not otherwise present in the written agreement. The overreaching use of parol evidence undermines the certainty of the contract and invites problems with the statute of frauds, which requires agreements to be in writing in order to be enforceable. The Odatalla Court, however, used an exception of the parol evidence rule, which stands for the preposition that evidence can be introduced to interpret the meaning of the written words of a contract.
To avoid unnecessary confusion with regard to agreements which are likely to be enforced, you may want to contact an attorney to determine whether additional language should be included in your religious contract to avoid “double dipping”. We are taking the time to write about this to show you that entering into an agreement for religious purpose is far from a trivial question. You must understand how a religious agreement may affect your future rights. We, at Cooper Levenson Attorneys at Law, have earned a recognition as a specialized and experienced law firm in the representation of clients in various areas, including contract and family law.
