Should Mahr Agreements Be Characterized as Premarital Agreements?

By: Razan Hamideh

There is growing confusion amongst courts as well as attorneys on how to deal with the issue of Mahr provisions in divorce litigation. Is it a prenuptial agreement under the Texas Family Code? Is it a partition and exchange agreement made after the parties are married? Could it be a simple contract that sets out specific terms? Or should we not even bring it up at trial because it bears the word Islam in it and touches upon First Amendment arguments such as the Establishment Clause?

What is Mahr?

The Islamic Marriage Contract known as Nikah, lays out the agreement between the spouses including the Mahr agreement. Like other contracts, the marriage contract requires offer and acceptance with the wife offering the terms and the husband accepting. Mahr is a spousal gift from the husband to the wife that is divided into two parts: the immediate Mahr which is given upon the signing of the Islamic Marriage Contract and the delayed Mahr, which is given in one of three occasions: the death of the husband, at a designated time in the couple’s lifetime, or in the event of divorce. The delayed Mahr during dissolution of marriage is the most litigated in American Courts. The interesting part is that interpretations have varied across Texas courts as well as courts nationwide. Some courts have interpreted Mahr agreements as premarital agreements, some courts indicating they could be postnuptial agreements and some refusing to address the issue altogether due to First Amendment concerns.

Differences between prenuptial agreements and Mahr:

First, Islamic marriage contracts are not made in contemplation of marriage as premarital agreements, but rather they create the state of marriage. Unlike prenuptial agreements where the parties drafting the agreements are prospective spouses who usually wed after the document has been signed, Mahr agreements are part of the Islamic marriage contract that establishes a marriage at the time the document is signed. Second, the underlying purpose of premarital agreements is to allow prospective spouses to privately order their property interests as a substitute to the state’s default marital property division laws. Mahr agreements, in contrast, are not intended to substitute a spouse’s property interest post-divorce such as spousal support and a fair and equitable division of property. Instead, the Mahr amount is a straightforward gift of money from one spouse to the other. Third, Islamic marriage contracts offer requirements and guidelines (e.g., requiring two witnesses) that do not match the formation requirements or guidelines of most premarital agreements (e.g., providing or waiving the right to financial disclosures). Fourth, premarital agreements are gender-neutral and generally intended to protect the assets of the wealthier party in the event of divorce. Mahr agreements, however, are intended to provide the wife with added financial security, regardless of the premarital financial assets of either party.

Why it should not be considered a premarital agreement:

The financial terms of a prenuptial agreement are set up to function in lieu of any inheritance, or the application of other community property, equitable distribution or spousal maintenance laws. A Mahr agreement is intended to supplement, not substitute, other legal obligations between spouses. Mahr should not be interpreted as a prenuptial agreement that substitutes equitable property division post marriage but instead as a simple spousal gift. Either spouse could be unjustly affected by this incorrect characterization. Depending on the terms agreed to by the spouses, the deferred Mahr could be for a meager amount, which would not be fair and equitable for an unemployed spouse that has been married for 10 plus years. The opposite could be true as well. As to Establishment Clause concerns, there is a vast difference between (1) interpreting religious law and (2) applying a contract according to it’s secularly ascertainable terms. The first of which is prohibited by the Ecclesiastical Abstention Doctrine. The ecclesiastical abstention doctrine requires that if a particular legal claim before a court requires the resolution of ecclesiastical questions, then the court must abstain from resolving those questions and instead defer to the religious entity’s authority. The latter is permissible even if the intent behind the contracting parties’ decisions is religiously based.

Moving forward

We can start by advising clients who wish to draft Mahr agreements to ensure that they are consistent with Texas contract laws. The Fourteenth Court of Appeals has found that it is sufficient “to look to the relationship between the parties and the circumstances surrounding the contract to determine if the terms were sufficiently definite for the parties to understand their obligations.” Ahmed v. Ahmed, 261 S.W.3d 190 (Tex. App.—Houston [14th Dist.] 2008, no pet.). This Court found that the arguments of vagueness to oppose the enforceability of a Mahr as a premarital agreement or a marital agreement was insufficient because both parties knew what they had agreed to and could be enforced against them. Additionally, making specific references to the fact that the Mahr amount is a gift to be included in a final divorce decree from one spouse to the other is vital for issues of enforcement. We can encourage clients to add alternative dispute resolution language to Mahr agreements or other choice of law language that could better suit the parties’ needs.

______________________________________________________________

Razan is an associate attorney at Hamideh Law Firm. Her primary practice includes personal injury, family law and civil litigation. She has experience both locally and internationally. Razan has also taught law at the first ever Women’s Law School in the Eastern Province of Saudi Arabia. During her free time, she enjoys spending time with her husband and two daughters.