As someone whose interest in secular law grew out of my studies of Jewish law, I’ve always been especially fascinated by the ways in which the two systems of law interact. A recently published article, “How To Judge Shari’a Contracts: A Guide To Islamic Marriage Agreements In American Courts,” got me thinking about some of the parallels and common experiences between Jews and Muslims in interacting with secular American courts.

Some Jewish Examples

Last month I was reading a case (Tsirlin V. Tsirlin, 2008) about an Israeli Jewish couple living in New York. The wife asked the husband for a get, the Jewish bill of divorce, and he gave her one in front of a Brooklyn Beit Din (Jewish court). The husband’s father brought the get to an Israeli court, on the strength of which the Israeli court issued a decree of divorce for the couple. Shortly afterward, the husband later filed for divorce in New York, also seeking orders for custody/visitation and child support. The wife moved to dismiss the action for divorce on the grounds that the New York courts should recognize the Israeli divorce. Judge Jeffrey Sunshine ruled that:

“If this court were to sanction the utilization of a ‘Get’ to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a ‘Get’ in New York could register it in a foreign jurisdiction and potentially, later on, rely on the ‘Get’ to obtain a civil divorce in New York thereby rendering New York State’s Constitutional scheme as to a civil divorce ineffectual… It would have the practical affect [sic] of amending the Domestic Relations Law section 170 to provide a new grounds for divorce.”

In this case, the wife tried (and failed) to use Jewish law and legal procedures to get out of the application of American laws about divorce, personal status, division of property, and child support/custody.  More common, at least recently, is for American Jews to try to use American law to get out of the application of Jewish laws about divorce. Specifically, Jewish law would permit a husband to be separated from his wife, even to have a civil legal divorce from his wife, but continue to withhold a religious divorce – leaving her an agunah, religiously unable to ever marry or have sexual relations with anybody else and rendering any future children of hers mamzerim, ritual bastards. Rabbis, including prominent Orthodox rabbis, have collaborated to create civilly enforceable prenuptial contracts (like the RCA contract), according to which the husband would be liable to pay his wife a certain amount for each day that they are civilly but not religiously divorced, or at least would be legally obligated to appear in front of a Jewish court.

Islam and American Law

American Muslims, like American Jews, are a religious minority with a strong religious legal tradition that does not really line up at all with American family law, which grew out of a secular Christian history. I was glad to come across a relatively new article that explains, in accessible terms, some of challenges and opportunities that American Muslims have been encountering (and attempting to exploit) when interfacing their personal status laws with American marriage and divorce law.

Theory

As Oman explains in in “How To Judge Shari’a Contracts: A Guide To Islamic Marriage Agreements In American Courts,” in American law, as in the Christian religious tradition, marriage is an act performed by an officiant for a couple. In conjunction which a couple may or may not create a premarital contract that will have some kind of enforceability depending on the content and the jurisdiction. On the contrary, in Muslim law, the contract drawn between the spouses is and constitutes the marriage.

The core of the marriage contract is the fixing of the amount of the mahr, which is comparable to a ketubah. Still a requirement in Jewish marriages, though it has not been enforceable for likely at least a thousand years, the ketubah is meant to protect the bride’s security and promises that the groom will pay her a certain sum in case he dies or divorces her.

Perhaps the most significant difference is that unlike the ketubah, the mahr continues to be a valid and often enforced obligation in modern day communities. Another difference is that technically, the wife is entitled to her mahr immediately, whereas the ketubah became due upon the husband’s death or divorcing of the wife. The essentially universal Muslim practice, however is to write it into the contract that the husband may delay the payment of the mahr until his death or the dissolution of the marriage – if the dissolution is ordered by an Islamic court (which is restrictive in theory and very rare in practice) or if it is a one-sided divorce. If they divorce by mutual consent, the wife must generally pay him the sum of the mahr, which amounts to foregoing the money altogether.

(By default, only the husband has the right to unilaterally divorce his wife, but if it is written into the marriage contract, the wife may exercise that right as well. Muslim feminists have advocated for this to be a standard part of Muslim marriage contracts).

Muslim law does not recognize the concept of marital property – the wife’s property and earnings are her own and the husband’s property and earnings are his own. During the marriage the husband has an obligation to support his wife but after the marriage she has no claim on his property. This means that if the wife has not worked outside the home and/or has not saved her own money, she will be left with no money or means of support other than the mahr.

Practice versus Theory

In theory, the marriage contract is freely negotiated and freely consented to. For many reasons, this is not always the case in practice. The consent of a never-married woman’s guardian is substituted for her own, for example, which can result in coerced marriages. Additionally, many countries base their laws upon Muslim law but have enacted standardized contracts that limit the abilities of the parties to customize their agreements. Pakistan, for example, only permits one standardized contract with fixed terms. That contract, unsurprisingly, does not permit a woman to negotiate to have the right to unilaterally divorce her husband.

Finally, even when there is theoretically freedom of negotiation, the cultural context (and Muslim law is practiced across an incredibly broad swathe of cultures) of any particular marriage may set default terms with practically as much authority as formal law, and the negotiating power between spouses/families is rarely if ever truly equal.

In American Courts

Like American Jews, American Muslims have tried to use the contractual groundings of their religious marriages to either escape obligations imposed by the secular system (like the couple in Tsirlin v. Tsirlin, and others before them) or to bolster/protect religious practices or believers (like the Jewish prenuptial contracts that try to get American courts to protect Jewish women from the harshness of Jewish law).

Muslim husbands have argued that the marriage contract should be seen by American courts as an agreement that the divorce be entirely governed by Muslim law, and thus that the wife should have no right to any marital property, or else that the wife has accepted the mahr in place of any other division of property. Or else, similar to Tsirlin, they have argued that a unilateral divorce executed elsewhere must be recognized in the United States, and thus the American court should not have jurisdiction over the division of property (with the result that the wife is entitled to nothing). Muslim wives have tried to argue that they are entitled to the mahr in addition to any other division of property, and/or if there is no property to be divided at the end of a marriage, that they are entitled to payment of the mahr out of the husband’s potential future assets.

American courts have only accepted any of these arguments once, in Chaudry v. Chaudry, which Oman argues was ruled in error since the court held that the wife had freely negotiated away her right to any division of property, even though she was married in Pakistan under a default contract whose text she did not have input into. Nevertheless, even when the courts have rejected these arguments, the specific grounds for their rejection leave open the possibility that Muslim couples could, with care and jurisdiction-specific legal advice, craft contracts that would be enforceable under American law.

Oman considers that a positive outcome. However he argues that the courts should treat Muslim marriage contracts not as “premarital contracts” but as simple contracts. On the one hand, that means that there are fewer restrictions on them, for example, there need not be full financial disclosure. On the other hand, that means that such a contract could never displace secular laws about distribution of property – the spouses would always be entitled to whatever American law judged appropriate, and in addition to that the wife would be able to enforce the payment of her mahr. Oman argues that the court can decide on a case by case basis if coercion or duress in the contract formation process should make the mahr unenforceable in any particular case.

Similarly to how tools like the various prenuptial agreements constructed by modern rabbis are meant help discourage Jewish husbands from withholding a religious divorce, an appropriate modern construction of the mahr could help discourage Muslims husbands from unilaterally religiously divorcing their wives.

(N.B. The information about Muslim marriage and divorce is based on law professor Nathan B. Oman’s scholarship and arguments in “How To Judge Shari’a Contracts: A Guide To Islamic Marriage Agreements In American Courts.”  I can only hope that I’ve done his work justice. For those interested, the paper is very approachable and provides a great overview of Muslim marriage and divorce law).