Islamic Marriage Contracts - National Council of Juvenile and Family ...

Abed Awad, Esq., Private PracticeChic Dabby Asian & Pacific Islander Institute on Domestic ViolenceNational Council of Juvenile and Family Court Judges76 th Annual ConferenceSeattle, July 2013© 2013 Abed Awad, Esq 1

Islamic Marriages & DivorcesAbed Awad, Esq.Islamic Marriage Contracts: A Resource Guide forLegal Professionals, Advocates, Imams &Communities• Collaborative Project of:• Peaceful Families Project• Battered Women’s Justice Project• Asian & Pacific Islander Institute on Domestic Violence• Author: Maha Alkhateeb© 2013 Abed Awad, Esq 2

Introduction:1. Who are American Muslims?• There are an estimated 3 to 7 million Muslims in the U.S.• Late 1800s – early 1900s: from Middle East origins• 1960s: South Asian, West Asian, Middle East origins• 1990s: Balkans, Middle East, South Asia, SE Asia• Practices of American Muslims may reflect Islamicteachings to varying degrees and are informed by thediverse homes in which they are raised• Not all Muslims are religiously practicing• Muslims, like the majority of Americans, choose areligious minister to solemnize their marriages.© 2013 Abed Awad, Esq 3

Intro: 2.Muslim Women’s Rightsin Historical Context• Islam gave women rights not granted in 7 th centuryArabia• These included the right to:• Vote• Own, inherit, manage, bequeath, and dispose of property• Inherit, women could not be disinherited by will• Legal capacity to contract• Work• Sexual satisfaction• Consent to marriage© 2013 Abed Awad, Esq 4

Intro: 3. Domestic Violence• Prevalence: 31% report domestic violence in theirlifetime• Types of violence: emotional (45%), physical (31%),financial (16%), sexual (15%)• Other: spiritual abuse, threats to her reputation,immigration-status related abuse, using children, threatsto harm her family members• Trends include: abandonment, forced marriage,appropriating Mahr, unilateral divorce• Islam recommends multi-step process, with mutualconsultation and open discussion to resolve conflict• Islam does not permit men to engage in wife abuse© 2013 Abed Awad, Esq 5

Intro: 4. What is Sharīʿah?• More than “law” in the prescriptive sense• Methodology and process of ascertaining divinemeaning.• A legal system based on the general principles containedin the Qur’an and Sunna.© 2013 Abed Awad, Esq 6

4. Sharīʿah, cont.• Sharīʿah is the moral and legal anchor of a Muslim's totalexistence.• Everything from the way Muslims marry and dissolve theirmarriages, to the way they eat, to how they treat animalsand protect the environment, to the way they conductcommercial trade, and to the way their estate must bedistributed at death, is governed by Sharīʿah. Whether acommercial transaction or a divorce settlement or one'srelationship with parents, the elderly and children isgoverned by the same degree of honesty, good faith, an eyeto fairness, social responsibility, and equity – an ethical lifeseeking to please God.© 2013 Abed Awad, Esq 7

B. MARRIAGE1. Marriage in Islam• Marriage is defined as a compassionate peacefulrelationship, based on gender equality, requiringcouples to consult each other for joint decision-making.• Marriage is a civil contract.• Requires bride and groom to reach majority.• Steps are an offer, acceptance, signing the marriagecontract w/2 witnesses, publicizing the marriage• Non-Civil Marriage / Religious Marriage• When a couple signs an Islamic Marriage Contract withoutregistering for a civil marriage license.• Rights are best protected w/civil marriage license© 2013 Abed Awad, Esq 8

2. Marriage Contract• As a civil contract, the bride has tremendous leeway tonegotiate the terms of her marriage contract.• Popular ‘stipulations’ or terms from the bride include:• Finances• Marital residence, domicile, living conditions• Children• In-laws• Equal right to initiate divorce• Right to work, to education• Equal division of domestic responsibilities• Monogamy, restriction on polygamy© 2013 Abed Awad, Esq 9

3. Mahr• Mahr: What is it? Is it a dowry?• Mahr is effect of the marriage contract and isnot a consideration for the contract• Mahr is divided into prompt and/or postponed• Mahr is a debt obligation upon the husbandenforceable against his assets• Mahr is the property of the bride and is distinctand separate from the wife’s rights toinheritance and alimony© 2013 Abed Awad, Esq 10

4. Property Rightsin Islamic Family Law• Islamic law does not recognize the concept of maritalassets – each party keep his or her own propertyacquired and titled in her or his name• Joint property and partnership concepts related tomarriage• Islamic law of Inheritance: Spouse can’t disinheritspouse.• Women have legal capacity to contract, manage andown property.© 2013 Abed Awad, Esq 11

C. DIVORCE1. Three Types of Divorce• Three primary ways to dissolve a marriage under Islamiclaw:1. Talaq/Unilateral Divorce2. Tafriq/Judicial Divorce3. Khul/Mutual Divorce or Wife Initiated• Trend: Abandonment Divorce| “Marry-and-Dump”• Abandonment occurs (1) overseas (2) in U.S.• Divorce is filed (3) overseas or (4) in U.S.© 2013 Abed Awad, Esq 12

C. Divorce: 2. Consequences of Divorce• Mahr: husband’s gift to wife• Waiting Period: generally 3 month ‘cooling down’ period inthe same home but separate quarters. It’s an opportunity toreconcile & confirm wife is not pregnant• Custody• Child support• Alimony© 2013 Abed Awad, Esq 13

C. Divorce: 2. Consequences of DivorceCustody |Hadhana• There really is no Islamic legal equivalent to custody thatwe understand here in the U.S.• Custody is composed of three forms of guardianship.1. Guardianship for rearing2. Guardianship over child’s property3. Guardianship over child’s person• Foreign Custody Decrees© 2010 Abed Awad, Esq 14

D. RELEVANCE OF ISLAMIC LAW IN THE U.S.Islamic family law is a rich, diverse andevolving jurisprudence.• Islamic law, customs and/or traditions have routinelysurfaced in family related litigation in American courtsaround:© 2013 Abed Awad, Esq 15

Relevance of Islamic Law, cont.• Is a Muslim marriage contract enforceable underState law?• Is a foreign divorce decree from a Muslimcountry recognized under State law?• When there is a jurisdictional conflict betweenState and Muslim country, how to approach it?© 2013 Abed Awad, Esq 16

Relevance of Islamic Law, cont.• Is a Muslim marriage in America legal?• Is it void or voidable? Consequences of void marriage• How about Remarriage?Courts around the country are forced toaddress these and many other issuesunique to the Muslim Americancommunities.© 2013 Abed Awad, Esq 17

Relevance of Islamic Law, cont.Sharīʿah is relevant in American litigation either as:(i) a foreign law; or(ii) as a source of information to aid in theinterpretation of a contract or dispute (for example, tounderstand the expectations of the parties in adispute, to clarify an ambiguous term, to correctmistakes, to determine established custom and thelike).© 2013 Abed Awad, Esq 18

E. CASE LAW• The cases in the United States involving the Muslimmarriage contract pertain to whether it is a prenuptialagreement or a simple contract.© 2013 Abed Awad, Esq 19

Sharia as extrinsic evidence• simple contract• basic contract elements: offer, acceptance andconsideration© 2013 Abed Awad, Esq 20

• prenup• in addition to basic contract elements and traditionalcontract defenses, the court inquires whether theparties had advice of counsel and financial disclosuresbefore signing the agreement.© 2013 Abed Awad, Esq 21

Is Islamic Marriage Contract a PrenuptialAgreement?• Some courts treated it as a prenuptial and enforcedMahr• Impact on Wife• Held that the agreement was invalid as it did not complywith the requirements of premarital agreements: adviceof counsel and full and complete financial disclosureswere absent• Impact on wife and/or both parties© 2013 Abed Awad, Esq 22

Is Mahr/Islamic Marriage Contract a SimpleContract?• In the following cases, the courts construed the Muslimmarriage contract as a prenuptial agreement. Theunique facts of each case combined with the state ofprenuptial jurisprudence in the jurisdiction determinedwhether the mahr was enforceable or not.© 2013 Abed Awad, Esq 23

• Afghani v. Ghafoorian• Akileh v. Elchahal• -- substantial mahr• -- marriage contract is a valid premarital agreement thatdid not violate public policy• -- mahr enforced• --marriage sufficient consideration• --parties agreed to the essential terms of the contract© 2013 Abed Awad, Esq 24

• Like in Afghani and Akileh, the courts in Ahmed v.Ahmed, and In re Altayar and Muhyaddin, determinedthat the Muslim marriage contract was a prenuptialagreement but invalid under state law.© 2013 Abed Awad, Esq 25

• Ahmed• Wife wins at trial level but loses on appeal• Appellate Court found that the parties’ valid civilwedding ceremony occurred six months before signingthe mahr agreement, i.e., they were not ‘prospectivespouses'© 2013 Abed Awad, Esq 26

• Similarly, in Altayar, the court described the mahr as aprenuptial agreement but invalid under state law.© 2013 Abed Awad, Esq 27

• a “[p]renuptial agreement is valid only when it is plainlyshown that the transaction was fair”• “the exchange of 19 pieces of gold for equitableproperty rights under Washington law is not fair . . . .Even if it were a fair agreement, there is no evidencethat he disclosed his assets or that [wife] received anyindependent advice during the three days between theirinitial meeting and marriage.”© 2013 Abed Awad, Esq 28

• Similarly, in Zawahiri v. Alwattar, and Ahmad v. Ahmad,the court agreed that the Muslim marriage contract wasa prenuptial agreement but held that the agreementwas invalid as it did not comply with the requirementsof premarital agreements: advice of counsel and full andcomplete financial disclosures were absent.© 2013 Abed Awad, Esq 29

• In re Marriage of Dajani,• the mahr allowed the wife to profit from filing fordivorce to obtain her five thousand Jordanian dinarsmahr.© 2013 Abed Awad, Esq 30

• Husband seeking enforcement• Shaban v. Shaban• Unlike most other cases where the wife sought thepayment of her mahr, husband asked the court torecognize his Egyptian marriage contract with anominal mahr as a prenuptial agreement to bar thewife from community property and alimony.© 2013 Abed Awad, Esq 31

• Court held the contract was too vague and indefinite tobe enforced• that their marriage shall be governed by the laws ofIslam and the traditions of the prophet alone was“hopelessly uncertain as to its terms and conditions” tosatisfy the statute of frauds on its own.© 2013 Abed Awad, Esq 32

In the following cases, the courts construed theMuslim marriage contract as a simple contract.• Abdallah v. Sarsour, Aziz v. Aziz, and Odattalav. Odatalla, 355 N.J.Super. 305, 810 A.2d 93 (2002), the courts found that the mahragreement satisfied the elements of a valid simple contract andthus enforced the mahr.• Abdallah• Contract was not void for vagueness• “where an agreement is to pay money and no time is specified, it isinterpreted as being an agreement to pay the same on demand;and if it is an agreement to do something other than to pay money,it is interpreted as a promise to do it in a reasonable time.”© 2013 Abed Awad, Esq 33

• Aziz• Islamic marriage contract conformed to therequirements of New York contract law and was“enforceable as a contractual obligation,notwithstanding that it was entered into as part of areligious ceremony.”© 2013 Abed Awad, Esq 34

• Similarly, in Odatalla, the trial court enforced the dowerprovision holding that applying neutral principles of law(i.e. the principles of contract law in New Jersey) tothe mahr agreement satisfied all the elements of a validcivil contract.© 2013 Abed Awad, Esq 35

• The evidence showed the husband:• freely making an offer to the wife by signingthe mahr agreement• the wife accepting the offer by signing the agreementand the husband intentionally binding himself to theagreement by making the payment required bythe mahr© 2013 Abed Awad, Esq 36

• Obaidi v. Qayoum and Habibi-Fahnrich v. Fahnrich• marriage contract was construed as a simple contractbut found that the parties did not have a meeting of theminds and that the contract was entered into underduress and overreaching.© 2013 Abed Awad, Esq 37

• Habibi-Fahnrich v. Fahnrich• "SADAQ being a ring and half of husband'spossessions” was undefined, indefinite and not specificto have a meeting of the minds to meeting therequirement of a valid contract under New York law.© 2013 Abed Awad, Esq 38

• Obaidi• contract written in Farsi• husband did not speak, read or write Farsi• neutral principles of contract law governed the interpretationof the contract• concluded that there was no meeting of the minds becausethe husband was advised of the mahr ceremony fifteenminutes before he signed the document and he did not read,write or speak Farsi and he was pressured to sign theagreement by the families.© 2013 Abed Awad, Esq 39

DIVORCESharīʿah as Foreign law• In the following cases the courts refused to recognizeforeign divorces obtained unilaterally/ex partebyhusbands.• Rahawangi v. Al-Samman• divorce decree obtained via proxy without notice wasnot recognized© 2013 Abed Awad, Esq 40

Divorce, cont.• Tarikonda v. Pinjari• the wife was not afforded the basic rudiments of dueprocess, she was not present in court and no hearing onthe merits was held.• it would be against public policy to recognize the Indiandivorce because Islamic law differs substantially fromMichigan law in regards to property distribution.© 2013 Abed Awad, Esq 41

Divorce, cont.• In the following cases the courts recognized foreigndivorces in which the parties actively participated in theforeign litigation.© 2013 Abed Awad, Esq 42

Divorce, cont.• In S.B. v W.A.• Parties moved to Abu Dhabi for work• While living there for several years, the parties commenceddomestic violence and divorce proceedings• The trial court recognized the Abu Dhabi decisions finding that thedivorce decree was obtained after trial and two appeals. Therewas no question that the court had jurisdiction over the partiesand the divorce because the parties resided in Abu Dhabi at thetime. The court found nothing in the divorce decree that wouldviolate New York’s public policy.© 2013 Abed Awad, Esq 43

Divorce, cont.• The court in Aqel v. Aqel recognized a foreigndivorce decree obtained in Jordan.• The husband did not finalize his divorce in Jordanwhen he married American.• His marriage was annulled and he return to Jordanto finalize his divorce. After obtaining a revocabledivorce in Jordan, he remarried the American wife.© 2013 Abed Awad, Esq 44

Divorce, cont.• In the following cases the validity of the foreign divorceturned on whether the parties were residents in theforeign country.• In Husein v. Husein• Ex parte divorce in Palestine without residency was notentitled to comity© 2013 Abed Awad, Esq 45

• Aleem v. Aleem, Pakistani Embassy in Washington DCdivorce where the parties were Maryland residents for20 years was not entitled to comity.© 2013 Abed Awad, Esq 46

• Sherif v. Sherif• The parties established residence in Egypt at the time ofthe divorce.• During their presence in Egypt, the husband obtained adivorce consistent with Egyptian law.• The trial court recognized the Egyptian divorce as amatter of comity and dismissed the wife’s spousalsupport action.© 2013 Abed Awad, Esq 47

Important Issues:• Religious divorces (ṭalāq ) taking place in the UnitedStates are not valid.• A divorce in the United States must be a judicial divorce.© 2013 Abed Awad, Esq 48

• However, an American court is likely to recognize areligious divorce obtained from a foreign consulate if thedivorce complied with basic due process and wasmutual and both parties appeared.© 2013 Abed Awad, Esq 49

• Divorce only terminates or severs the maritalrelationship.• If the divorce did not resolve the financial and nonfinancialaspects arising out of the marriage –alimony, equitable distribution, child support andcustody – either spouse is able to commence anaction to determine these open issues as the fewcases above have confirmed.© 2013 Abed Awad, Esq 50

• In religious divorces taking place abroad, the standardcomity factors must be considered: due process, notice,fairness, opportunity to participate and the like.• Furthermore, the residency and marital domicile of theparties is a major factor courts consider before grantingcomity to a foreign divorce decree.© 2013 Abed Awad, Esq 51

• The norm in today’s global village is that couples or eachof them have multiple residences.• How should a court deal with cross border divorces,assets in multiple jurisdictions and income from morethan one jurisdiction?© 2013 Abed Awad, Esq 52

• Which country has jurisdiction? Does the first filer havean advantage? If the matter is pending in one country,should the other country stay its proceedings pendingan outcome?© 2013 Abed Awad, Esq 53

Religious Marriages and MarriageLicenses• The following cases examine the different approaches todetermine the validity of religious marriage that did notcomply with all of the state law formalities.© 2013 Abed Awad, Esq 54

• Yaghoubinejad v. Haghighi the parties marriage is voidfor lack of marriage license© 2013 Abed Awad, Esq 55

• Ellehaf v. Tarraf, the parties were married in an Islamicceremony in Michigan without obtaining a marriagelicense.• holding that the parties were never legally marriedbecause they did not obtain a marriage license.© 2013 Abed Awad, Esq 56

• In Mussa v. Palmer-Mussa, religious marriage was validuntil dissolved by judicial authority© 2013 Abed Awad, Esq 57

• Matter of Farraj• The law of the marital domicile governed validity ofmarriage without license.• Marriage that took place in New Jersey would be voidbut under New York law would be voidable. Marriagefound valid© 2013 Abed Awad, Esq 58

Domestic Religious Divorces• In Mussa and Shikoh v. Murff, 257 F.2d 306 (2 nd Cir.1958), the court made clear that religious divorces in theUnited States are not a substitute for civil divorcejudgment.© 2013 Abed Awad, Esq 59

• Muslim marriages are valid and recognized in the UnitedStates like any other religious marriage.© 2013 Abed Awad, Esq 60

• The issues raised in the above cases are not the validityof religious marriages that take place in the UnitedStates, but rather the validity of a religious marriagethat take place in the United States and fail to complywith the state regulatory requirements such asobtaining a marriage license before the marriage issolemnized by an authorized religious figure.© 2013 Abed Awad, Esq 61

• The New York voidable approach to resolving marriagevalidity issues is far more equitable than New Jersey’s voidapproach.• recognize relationships that are less formal with or without awriting• New Jersey and many other states recognizes a cause ofaction called palimony for financial damages for breaching apromise to support your partner for life in writing and somewithout a writing.• Many states also recognizes a cohabitation between twopeople in a marriage like arrangement as sufficient as anactual marriage for purposes of terminating an alimonyentitlement.© 2013 Abed Awad, Esq 62

Withholding religious divorces for extortion• Many husbands utilize the religious divorce as a swordto extract financial leverage in the divorce settlement orsimply to make the wife’s remarriage unlikely out ofvindictiveness.© 2013 Abed Awad, Esq 63

• For example, in Hammoud v. Hammoud, the husband simplyrefused to grant his wife a religious divorce despite the court’sencouragement.• The trial court acknowledged that it did not have “authority tocompel to religious divorce” but found that the wife’s inability toremarry without a religious divorce was a relevant factor to beconsidered in favor of her spousal support claim.• The appellate court reversed the spousal support award forvarious reasons, including that the open-ended duration of thespousal support award “was structured to pressure [husband] toagree to an Islamic divorce.”© 2013 Abed Awad, Esq 64

• New York only state with Get Law• Ohio, for example, will not even enforce a settlementagreement providing for the granting of a religious divorce onunconstitutional entanglement grounds. Steinberg v.Steinberg, 1982 WL 2446 (Ohio App., 1982) (unpublished).• The New Jersey Appellate Court recently held that a court isonly authorized to direct the parties to obtain a religiousdivorce if their settlement agreement provided for it.Otherwise, the court has no authority to direct either partyto cooperate to obtain a religious divorce. Lowy v. Lowy, A-472-10 (App.Div. 2011) (unpublished).© 2013 Abed Awad, Esq 65

Religious Rearing and Custody• In Jabri v. Jabri, 193 A.D. 782 (App.Div. 1993), unless theparties have a written agreement regarding religiousrearing the custodial parent may determine the religiousupbringing of the children.© 2013 Abed Awad, Esq 66

• Similarly, in Najmi v. Najmi, 2008• “A domestic relations court may consider the religiouspractices of the parents in order to protect the bestinterest of a child. However, the United StatesConstitution flatly prohibits a trial court from everevaluating the merits of religious doctrine or definingthe contents of that doctrine. Furthermore, custody maynot be denied to a parent solely because she will notencourage her child to salute the flag, celebrateholidays, or participate in extracurricular activities.”© 2013 Abed Awad, Esq 67

• The Najmi approach is almost uniform around thecountry, i.e., the court has no authority to decidereligious rearing disputes on doctrinal grounds. Rather,the court only weighs in when the religious rearingdispute impacts the best interests of the children.• Moreover, the court will always defer to the parent ofprimary residence or physical custodian in connectionwith religious instructions with the proviso that thechildren should also be exposed to the other parent’sreligion.© 2013 Abed Awad, Esq 68

• Religious rearing agreement?• However, if there is an agreement about religiousrearing, unless the agreement violates public policy or isdetrimental to the best interests of the children, theagreement would likely control. Also, the history orstatus quo of the religious rearing during the time theparties were an intact family would be relevant to thecourt.© 2013 Abed Awad, Esq 69

Foreign Custody Decree• In the majority of reported and unreported cases, if theforeign custody decree was not based on the bestinterests of the child, our courts are reluctant to grantthem comity.© 2013 Abed Awad, Esq 70

• For example, Charara v. Yatim,78 Mass.App.Ct. 325(Mass. App.Ct. 2013), the court refused to recognize aLebanese child custody determination because it wasdecided under law that was not in substantialconformity with Massachusetts best interests standardbut rather based on a presumption in favor of the father.© 2013 Abed Awad, Esq 71

• In Hosain v. Malik, 671 A.2d 988 (1996) andS.B. v W.A.,38 Misc.3d 780 (2012), the court found that the foreigncustody decrees were based on best interests, therefore,were granted comity.© 2013 Abed Awad, Esq 72

• Abouzahr. Abouzahr, 361 N.J. Super. 135 (App. Div.2003), for example, articulates a balancing test toameliorate the risk anchored in the facts of the case notbright line rules.© 2013 Abed Awad, Esq 73

• The fact that the country where the child will visit is a nonsignatoryto the Hague Convention was found not to be a perse prohibition to visitation abroad. Furthermore, the courtheld that:• “[i]n addition to the laws, practices and policies of theforeign nation, a court may consider, among other things, thedomicile and roots of the parent seeking such visitation, thereason for the visit, the safety and security of the child, theage and attitude of the child to the visit, the relationshipbetween the parents, the propriety and practicality of a bondor other security and the character and integrity of theparent seeking out-of-country visitation as gleaned from pastcomments and conduct.”© 2013 Abed Awad, Esq 74

RESOURCES1. Abed Awad Esq. Collection of Articles www.abedawad.com2. Asian & Pacific Islander Institute on Domestic ViolenceBibliography on Gender, Domestic Violence & MuslimWomen; Directory of Programs Serving Muslim Survivors;Islamic Marriage Contracts: Resource Guide3. Battered Women’s Justice Project & API Institute IslamicMarriage Contracts: A Resource Guide for LegalProfessionals, Advocates, Imams & Communities.4. Muslim Advocacy Network Against Domestic Violenceinfo@manadv.org5. Peaceful Families Project www.peacefulfamilies.org6. Karamah: Muslim Women Lawyers for Human Rightswww.karamah.org7. Technical Assistance1. API Institute: info@apiidv.org2. Battered Women’s Justice Project: technical assistance@bwjp.org© 2013 Abed Awad, Esq. 75

SHUKRAN© 2013 Abed Awad, Esq 76