Divorce proceedings are emotionally and financially taxing, but the complexity of the process increases significantly with added cultural issues surrounding the marriage. In Islamic cultures, the bride and groom enter into a marital agreement either on or shortly before the wedding date. This contract includes the promise of a gift from the groom to the bride, which is called mahr. The bride may claim the gift at the time of marriage, or at any later date of her choosing. The mahr is the wife’s separate property and the husband has no legal claim to it. Different cultures prescribe various forms of mahr, but generally the contract includes a future promise, at an unknown date, of gold or money. It is pertinent to note that mahr is not a price that the groom pays for the bride, but rather, a gift from the husband to the wife. In other words, the mahr is not an exchange or consideration given by the husband for the marriage contract.
These marital contracts provide significant legal challenges in the United States, where some jurisdictions construe the Muslim marriage contract as a prenuptial agreement, and others interpret them based on neutral principles of contract law. Virginia courts have grappled with the issue of Islamic marital contracts accompanying divorce proceedings for years.
The issue arose in 2006 in the Circuit Court of Fairfax County in Abdallah v. Sarsour. The case came before the court upon the parties’ request for equitable distribution, attorney’s fees, and a Final Decree of Divorce. At trial, the husband argued that the parties’ Islamic marital contract was void for vagueness and for failure of consideration. The court opined that “[w]here an agreement is to pay money and no time is specified, it is interpreted as being an agreement to pay the same on demand; and if it is an agreement to do something other than pay money, it is interpreted as a promise to do it in a reasonable time.” Based on this reasoning, the court held that the marriage contract was not void for vagueness. The court further held that the contract was not void for lack of consideration, because the agreement was fully integrated and no additional terms were included.
The issue of interpreting an Islamic marital contract arose again in 2010 in Afghani v. Ghafoorian, before the Court of Appeals of Virginia in Alexandria. In this case, the husband appealed a ruling of the Circuit Court of Fairfax County ordering him to pay 514 gold coins to his wife in accordance with the parties’ Iranian marital agreement. The Court of Appeals construed the agreement as a premarital contract between the parties and affirmed the circuit court’s decision. The Court of Appeals relied heavily on the circuit court’s finding that the wife was owed 514 gold coins because they were “due and payable under the binding contract entered by the parties… .” The Court further discussed the importance of Virginia Code §20-150, noting that parties in Virginia are free to enter into premarital agreements “with respect to any matter” so long as it is “not in violation of public policy or a statute imposing a criminal penalty.”
The decisions in these two cases convey the implications of Islamic marriage contracts and the willingness of Virginia courts to uphold their terms. The Court of Appeals decision in Afghani v. Ghafoorian implies that such contracts will be considered similar to prenuptial agreements, and their provisions will be honored. It is important to consider that these contracts do not necessarily negate spousal support in divorce proceedings, since such support is deemed a separate obligation between husband and wife.
If you have questions about how to proceed in a divorce action involving mahr or another pre-marital promise, be sure to discuss the process and potential impact with an experienced family law attorney. The family lawyers at Livesay & Myers, P.C. handle divorce cases across Northern Virginia. Contact us to schedule a consultation today.