Law is unclear on Muslim marriage contracts in California

The California Court of Appeal in In re Marriage of Turfe, 23 Cal. App. 5th. 1118 (2018), examined a novel legal theory made by a Muslim husband who claimed that he was fraudulently induced to marry his wife because, by executing the Islamic marriage contract, the wife had agreed that her property rights in the event of divorce would be exclusively limited to those contained in the contract. By seeking additional property rights not contained in their marriage contract, the husband argued his wife committed a fraud that warranted an annulment.

An Imam officiated their marriage and the parties signed a standard Islamic marriage contract, which included a "mahr provision" -- "an agreement based on Islamic law under which a husband agrees to pay a dowry to his wife. Generally, there is a short-term portion and a long-term portion. The short-term portion is due immediately. The long-term portion is the amount that the wife is entitled to take with her in the event of a divorce." In re Marriage of Obaidi and Qayoum, 154 Wash.App. 609, 612 (2010). The wife's mahr stipulated in the contract was: "5 Golden coins paid in advance and a copy of the Quran deferred."

After the wife filed for divorce, the husband moved to annul the marriage based on fraud and he requested the specific performance of the mahr agreement because there was no community property to be divided. Each party presented the testimony of an Islamic law expert who agreed that the mahr was a requirement for a valid Islamic marriage contract, but disagreed on whether such contract precluded the wife from sharing in the community property.

The husband's theory of the case was that the mahr agreement precluded the wife's community property rights and that this agreement was a personal religious issue for him going to the essence of their marriage. The wife's refusal to abide by the mahr agreement, therefore, meant that he was induced to enter this marriage by fraud. The court disagreed. This argument would not invalidate the parties' marriage "based solely on something required by his religious belief but not required by California law." The court further elaborated: "While California law allows for a premarital agreement on property division in the event of divorce ... such an agreement is not required for a marriage to be valid under California law ... neither the Mahr Agreement, nor any fraud in connection with it, goes to the essence of the marital relationship. Consequently, [husband's] claim of fraud with respect to the Mahr Agreement ... does not provide grounds for annulment."

In the end, the court was "not persuaded" that the wife "intentionally misrepresented her intention under the Mahr Agreement in order to induce [husband] into marriage." The wife testified that the mahr agreement was "traditional" and "symbolic" and that it would not limit her community property rights. It concluded that there was "insufficient" evidence of fraud to annul the marriage.

The next argument the husband made was that the mahr agreement was a valid prenuptial agreement. The trial court concluded that the mahr agreement did not satisfy the statutory requirements for a premarital agreement under California law. See Family Code Section 1615(a). For a premarital agreement to be valid under California law, the parties to the contract must exchange "fair, reasonable, and full disclosure of the property or financial obligations of the other party" and have had advice of counsel. Both of these requirements were absent here. The fact that the parties entered into the agreement without having a clear understanding of the impact it would have on their property rights in the event of divorce combined with the disagreement of their respective Islamic law experts constituted "substantial evidence" to support the trial court's decisions that wife didn't deceive husband to enter the mahr agreement.

Not surprisingly, the husband did not challenge on appeal the trial court's determination that the agreement was not an enforceable prenuptial agreement, given the decision in In re Marriage of Shaban, 88 Cal. App. 4th 398 (2001), had previously held that a mahr agreement was unenforceable as a prenuptial agreement.

The Turfe decision raises several interesting Islamic legal issues. Both Islamic law experts apparently had testified that a mahr is required for a valid marriage. This is opinion incorrect. While a mahr is a feature in almost every Muslim marriage contract, a mahr is not required for the validity of a Muslim marriage. Islamic law considers marriage a civil contract. See generally Abed Awad, "'Marriage,' subentry on historical practice and legal foundation," in N. DeLong-Bas (ed.), The Oxford Encyclopedia of Islam and Women, New York: Oxford University Press, 625-30. A marriage contract is concluded if a bride accepts an offer of marriage with two witnesses. Id. In this matter, all of the elements of a valid marriage contract were established as evidenced from the fully executed marriage contract with the mahr provision, which the husband was requesting the trial court to enforce.

Mahr is an obligation that the groom has to give the bride when they conclude the marriage contract. Mahr is not an exchange or consideration given by the groom for the marriage contract. See, e.g., David Pearl and Werner Menski, "Muslim Family Law" (3rd Ed. 1998), p. 179; see also Jamal J. Nasir, "The Islamic Law of Personal Status" (2nd Ed. 1990), pp. 86-87. It is a part of every Muslim marriage contract whether specified in the contract or not. A marriage contract entered into without specifying mahr is still valid. In such event, a Muslim court implies a proper mahr. Generally, in a Muslim jurisdiction, this entails a proceeding to ascertain the custom of the community and the socioeconomic status of the wife to determine the proper mahr.

The other significant holding with respect to the mahr agreement is the appellate court's confirmation that a Muslim marriage contract is not a prenuptial agreement. This is consistent with the trend in cases around the country, most recently in Ravasizadeh v. Niakosari, 94 Mass.App.Ct 123 (2018); see also Abdallah v. Sarsour, 2006 WL 1134034 (Va. Cir. Ct. Mar 20, 2006); Aziz v. Aziz, 127 Misc.2d 1013 (1985); Odattala v. Odattala, 355 NJ Superior 305 (2002); Rahman v. Hossain, 2010 WL 4075316; Obaidi v. Qayoum, 226 P.3d 787 (Wash.App. Div. 3 2010); and Habibi-Fahnrich v. Fahnrich, 1995 WL 507388 (N.Y.Sup. July 10, 1995).

The appellate court in Ravasizadeh confirmed that a marriage contract is a simple contract. While this concept was not expressly examined in the case here, the simple contract theory permits the court to enforce the parties' contract without the stringent requirements of prenuptial law and does not preclude the parties' property rights under California law. See, e.g., Ahmed v. Ahmed, 261 S.W.3d 190, 196-97 (App. 14th District, 2008).

The husband's annulment argument was a creative argument that I have never seen in my close to 20 years of handling these types of matters. The appellate court, however, did leave a viable opening for this argument to be successful under the appropriate facts. What would the decision have been had the parties' "discussed" the impact of the mahr on their property rights in the event of divorce? Would such notice and knowledge convert the Muslim marriage contract into an enforceable prenuptial agreement? I don't believe so. The requirements of the Uniform Premarital Agreement Act are absolute: advice of counsel, fair financial disclosure, and knowing waivers. But a discussion that the mahr agreement as precluding property rights would that constitute fraud sufficient to annul the marriage? That question remains open. Unfortunately, like Shabhan, Turfe has not clarified the law on Muslim marriage contracts in California. 