MAHR PROVISIONS AND THE CASE FOR SHARI'A ARBITRATION.

Author:Allen, Cora
 
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INTRODUCTION

The global Muslim population is currently estimated at 1.8 billion people, comprising twenty-four percent of the total global population. (1) The United States alone is home to 3.45 million Muslim individuals. (2) Further, both global and national Muslim populations are predicted to grow rapidly over the next half-century. (3) The Pew Research Foundation predicts that between 2015 and 2060, the global Muslim population will grow over twice as fast as the overall world population (4) and that by 2050, the Muslim population in America will reach 8.1 million. (5) These changes would make Muslims the second-largest religious group in the United States (6) and the largest religious group in the world by the second half of this century. (7)

Yet, from a legal standpoint, American courts are still not familiar with many aspects of Islamic legal and cultural traditions. Nowhere is this more apparent than in the context of Islamic marriage. Marriage is a particularly complex area of family law because it is not singularly a civil matter, but instead a fusion of legal rules, religious practices, and socio-cultural expectations and norms. (8) Judicial interpretations in United States courts of Islamic marriage contracts reflect this complexity.

In particular, U.S. courts struggle to interpret provisions within Islamic marriage contracts, called mahr provisions, which regulate the division of property in the case of certain types of divorce. (9) This confusion is due in large part to a misunderstanding of the context and function of the mahr, leading courts to either invalidate these provisions blanketly or otherwise improperly treat mahr agreements as prenuptial contracts. (10) Another common issue presents itself when parties seek enforcement of a mahr agreement that was part of a divorce obtained outside of the United States, specifically when the divorce was achieved through the unilateral method of talaq. (11) Cases demonstrate a multitude of court outcomes, often inconsistent with one another. (12) What results is unreliable holdings, unclear precedent, a disregard for party intentions, and, ultimately, a perverse incentive for either husband or wife (and sometimes both) to seek opportunistic enrichment in a court with little knowledge of the cultural and religious context of these agreements. (13)

This Note suggests that the solution to this chaos is not simply to instruct American judges on the intricacies of Islamic law and marriages (although that certainly would not worsen the issue). Instead, a pluralist approach to Islamic marriages should be adopted, similar to the stance courts have taken on Jewish legal arbitration tribunals. (14) Under this regime, Islamic arbitrators would serve as an alternative to civil courts in resolving conflicts involving mahr agreements, under the oversight of secular law. (15) This approach would not only ensure protection of basic rights, but would also encourage self-regulation by the religious arbitral body to conform to fundamental civil family law principles of due process and equal protection. (16) Finally, it would recognize and validate that there is more than one conception of marriage and divorce within American society. (17)

  1. ISLAMIC MARRIAGE AND MAHR AGREEMENTS

    In order to properly situate mahr agreements within their cultural context, it is important to understand some basic aspects of Islamic law and the functioning of Islamic marriages. (18)

    To begin, it is helpful to note a key difference between the importance of religious law in Islam as compared to Christianity. As a religious practice, Christianity is focused on "doctrinal conformity," that is, that its followers have a particular faith or set of beliefs. (19) Thus, "to be a Christian is in large part about holding a particular set of beliefs about God, Jesus Christ, and salvation." (20) Islam and Judaism, on the other hand, additionally focus on "behavioral conformity" (21) or, as one author put it, "personal observance." (22) This includes the fundamental idea that followers of the religion strive to engage in "a mode of religious living." (23) The emphasis thus lies not only in faith or religious theory, but in daily acts and practices. (24) This idea of religious living in Islam is embodied in the concept of shari'a, which, translated literally, means "a path to water." (25) Although shari'a is often thought of in the United States as "Islamic law," it more accurately "refers to the primary way in which humans should relate themselves to God." (26) Shari'a is operationalized into law by a body of legal theory known as the fiqh. (27) The fiqh was created by classical Islamic legal theorists as they set out to interpret the Quran, the sacred text of Islam believed to have been dictated directly to Mohammad by God. (28) The fiqh governs most aspects of civil law in Islamic countries, including family law and marriages. (29) Though there are variations within Muslim countries, in many, "the formal municipal law closely follows the fiqh on matters of marriage and family." (30)

    This strong tie between modern municipal law and the fiqh on domestic matters is paralleled by strong support of traditional Islamic family law by Muslim populations worldwide. (31) Though Muslims today are not equally comfortable with all aspects of the fiqh, most Muslims who believe that shari'a should be the law of the land support adhering to religious family law. (32) Fewer, for example, support aspects of the fiqh relating to severe punishments for criminal acts, such as whippings or cutting off hands. (33)

    So what does marriage look like under Islamic law? (34) Unlike marriage in the Christian tradition which is considered a sacrament, or a "sign[] of grace," (35) Islamic marriage is fundamentally a contractual arrangement. (36) There are several basic requirements to an Islamic marriage contract. First, there must be mutual agreement by the parties. (37) This often involves negotiations between the groom and the bride's guardian, or wali, usually her father or another male relative. (38) As a safeguard to ensuring consent, many countries require at least one, or sometimes two witnesses to be present. (39) However, while the fiqh requires that the bride consent freely to the marriage and the marriage contract itself, (40) some authors suggest that, in reality, even with witnesses present, brides may not always have the option to withhold consent. (41) Protesting a marriage agreement or terms within it may be viewed as disrespectful and could have serious social consequences for the bride, including ostracism from her family or, in extreme cases, risk of physical harm. (42) These consequences do not stem from the tenets of religious Islamic law itself, but rather from the patriarchal cultural legacies that existed in most now-Muslim countries, often even before Islam was a predominant religion. (43)

    In addition to mutual consent, a second fundamental element of an Islamic marriage contract is the inclusion of a mahr agreement. (44) With its origins in the Quran itself, the mahr (45) is property given to the wife by the husband to indicate his willingness to marry as well as his respect for the bride. (46) Sometimes the mahr is compared to a "bride price" in the Western tradition; however, unlike the latter, the mahr is given directly to the wife, not to her father or family. (47) It can range from a symbolic token to a large sum of money, property, a portion of a business, or any other thing of value. (48) Mahr provisions are typically found within the marriage contract, which itself is often a standard one-page, fill-in-the-blank form provided by a government, an Islamic family court, or, as may be the case within the United States, a local Islamic foundation. (49) Parties write their names, addresses, and the amount of the mahr, but little else. (50) The agreement usually contains a boilerplate statement that Islamic law governs the contract, but generally does not indicate which of the many schools of Islamic law takes precedence. (51)

    There are two parts of every mahr provision: a prompt (or advanced) mahr, given at the time the marriage takes place, and a postponed (or deferred) mahr, which the wife receives if the marriage ends by either the death of the husband or divorce. (52) The postponed mahr, in particular, serves an important social function and is given great weight in Islamic courts. (53)

    The purpose of the postponed mahr is rooted in the distinct differences in the position of men and women within Islamic society and law. (54) Though men and women are considered spiritually equal, they are traditionally thought to nonetheless bear different social responsibilities. (55) Men are traditionally seen as the providers of the family, and thus many women often do not work or have a means of independent income separate from their husbands. (56) Again, this patriarchal cultural legacy does not stem from the teachings of Islam itself but rather from the historical fact that Islam arose in the context of seventh century society and social mores. (57)

    Further, women and men have different rights in divorce, as is illustrated by the three methods of divorce under Islamic law. The first way to dissolve an Islamic marriage is through a process called talaq, which, until recently, has been the most common method of obtaining a divorce. (58) Through talaq, a husband can unilaterally and extra-judiciously divorce his wife by making a specific pronouncement or declaration of his desire to divorce. (59) Some religious sects and countries have additional requirements, such as that a witness be present (60) or that the pronouncement be certified by a judge. (61) However, except for these rather limited procedural requirements, the right to talaq divorce is traditionally quite broad and may be exercised for any reason. (62)

    A woman, on the other hand, has no such right, and her only avenue for initiating...

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