Islamic Prenuptial Agreements in American Courts

Start at Parbeen v. BariYesterday’s decision was made by the Florida Court of Appeal in Fourth District. Judge Alan Forst authored an opinion, which was joined by Chief Judge Burton Conner, Judge Jeffrey Kuntz, and other judges.

The case involves a prenuptial arrangement between the couples on September 14, 2015. Its impact on their divorce proceedings. The parties decided to instead of signing a standard prenuptial agreement they would have signed, they entered into an Islamic traditional prenuptial contract called a Mahar. Even though the agreement was made in Bangladesh, it is not a legal contract that should be applied to the secular laws of Bangladesh.

This Mahr agreement between the parties is two pages in length and has few legal operative clauses. The only exception to an explicit promise from Former Husband to pay Former Wife 15 lac Bangladeshi Taka (15,00,000. Taka). In the case of divorce, five and ten lac Takas would be payable. {The trial court found that Taka was worth $11,772.43 in United States Dollars. [A “lac” or “lakh,” on the Indian subcontinent, means 100,000, especially with regard to money; 100 lakh, which is to say 10,000,000, is a “crore.” -EV]} …

Although the trial court found that Former Wife was generally restricted by the Mahr to recover the staded amount of her recovery, the Court of Appeals disagreed.

Both the former husband and ex-wife claim the Mahr agreement can be enforced under Florida law. This assertion is correct. We have previously stated that prenuptial agreements are enforceable if they were entered into freely—even if the agreement is objectively unreasonable. The Second District of Florida has ruled that Mahr agreements can be enforced as prenuptial arrangements, despite the fact that there is limited Florida Mahr law. Look! Akileh v. Elchahal (Fla. Ct. App. 1996) (“[A Mahr’s]No matter if the contract was made as part of religious ceremonies, secular terms will be enforceable as a contractual obligation. (quoting Aziz v. Aziz (N.Y. Sup. Ct. 1985))).

This is where the primary disagreement between the parties lies in the interpretation of Mahr agreements. Former Husband asserts that a Mahr agreement is a form of insurance designed to provide protection for a spouse who has been separated. Former Husband says that concepts such as equitable division and alimony do not exist in Islam. The Mahr, which should be understood as Former Wife’s entire recovery, is to exempt the equitable portion of former wife’s marital home. On the other side, Former Wife points out that the Mahr agreement does not contain any language that would indicate an intent to end traditional notions like equitable distribution and support for temporary cases.

Akileh“Florida contract law” applies to the secular terms [a Mahr agreement].” Thus, while the parties to a prenuptial agreement—Islamic or secular—may contract away their traditional marital rights, they must do so in a way that comports with Florida law, which has a rebuttable presumption in favor of equitable distribution of property in the event of a divorce.

This presumption must be overcome [under Florida law]Prenuptial agreements must be clear in their language and express the desire to waiver equitable distribution. It is not enough to refer to waiver in boilerplate terms. Furthermore, “[t]Only in cases where the contractual language seems unclear, the court might resort to extrinsic and construction evidence. The same rules of contractual analysis apply to any prenuptial waiver of temporary support….

In this case, however, the Mahr agreement’s clear meaning doesn’t unambiguously indicate a wish to waiver equitable distribution or temporarily support. Two-page, preprinted Mahr agreements are available. All relevant blanks have been filled in using a typewriter. The majority of information in the Mahr agreement concerns personal and family details, as well as the dates, witnesses and other procedural issues. The agreement’s “amount” section contains the following insertion: 15,00,000. – (FIFTEEN LAC). TAKA ONLY,” which five lac was required to be paid at marriage. A Mahr agreement does not mention the distribution of past, present or future property. Therefore, the Mahr Agreement cannot be overcome by strong public policy favoring equitable distribution and, where circumstances warrant, temporary support.

The answer to Former Husband provides an in-depth history of Mahr Agreements, describing it as a traditional Islamic legal instrument that is intended to support brides during a divorce. The Shari’a does not allow for concepts like the equitable division of property or temporary spousal assistance, according to Former Husband.

But, as per AkilehFlorida contract law covers the secular terms and conditions of Mahr agreements. In this instance, Former Wife is not prohibited from seeking temporary support or alimony. The agreement states that the Former Husband must pay Former Wife ten lakh Taka after their divorce. Consequently, the trial court erred when it held that the Mahr agreement barred Former Wife from seeking additional forms of distribution and support….