By Iman Abdulkadir Mohamed
The California Court of Appeal In re the Marriage of Turfe,[1] examined a novel legal theory made by a Muslim husband that claimed that he was 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.
The parties married in 2000. An Imam officiated their marriage and the parties signed a standard Islamic marriage contract, which included a mahr provision. The wife’s mahr stipulated in the contract was: “5 Golden coins paid in advance and a copy of the Quran deferred.”[2] Two children were born of the marriage.
In March 2012, the wife filed for divorce. In January 2014, the husband moved to amend his response to include a request 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. Both experts agreed that the mahr was a requirement for a valid Islamic marriage contract, but they 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 a fraud to the essentials of the marriage. The California court did not buy this argument. This argument, the court explained, would not invalidate the parties’ marriage “based solely on something required by his religious belief but not required by California law.”[3] 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 [. . . .] The Court finds that 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, even if proved, does not provide grounds for annulment, however important the Mahr Agreement was to [husband] personally.[4]
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.”[5] The wife testified that the Mahr Agreement was “traditional” and “symbolic” and that it would not limit her community property rights.[6] The husband, on the other hand, testified that the mahr was the maximum financial rights the wife would receive in the event of divorce and that she intentionally deceived him to sign the marriage contract. With clearly dramatically opposed factual versions of their expectations and understanding of the Mahr Agreement, the court concluded that there was “insufficient” evidence of fraud to annul the marriage.[7]
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.[8] 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 have advice of counsel. Both of these requirements were absent here.[9]
The fact that the parties entered into the agreement with out having a clear understanding of the impact the Mahr Agreement would have on their property rights in the event of divorce combined with the disagreement of their respective Islamic law experts, constituted the court explained, “substantial evidence” to support the trial court’s decisions that wife didn’t deceive husband to enter the Mahr Agreement.[10]
Not surprisingly, the husband did not challenge on appeal the trial court’s determination that the Mahr Agreement was not an enforceable prenuptial agreement because the California appellate court in In re Marriage of Shaban[11] had previously held that a mahr agreement was unenforceable as a prenuptial agreement.
This decision raises several interesting Islamic legal issues. Both Islamic law experts apparently had testified that a mahr is required for a valid marriage. This opinion is 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.[12] A marriage contract is concluded if a bride accepts an offer of marriage with two witnesses.[13] 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/dowry is an obligation that the groom has to give the bride when they conclude the marriage contract.[14] Mahr is not an exchange or consideration given by the groom for the marriage contract.[15]
Mahr/dowry is an effect of every Muslim marriage contract whether mahr/dowry is specified in the contract or not. A marriage contract entered into without specifying mahr/dowry is still valid. In such event, a Muslim court implies a proper mahr/dowry. Generally, in a Muslim jurisdiction, this entails a proceeding to ascertain the custom of the community and the socio-economic status of the wife to determine the proper mahr/dowry for the wife.
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 and most recently in Ravasizadeh v. Niakosari.[16]
The Appellate Court in Ravasizadeh confirmed that a marriage contract is a simple contract. While this 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.[17]
Finally, the husband’s annulment argument was an ingenious and creative argument that I myself have never seen in my close to twenty 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 decisions 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 California 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.
Notes:
[1] 23 Cal. App. 5th. 1118 (2018).
[2] Id. at 1122.
[3] Id. at 1122-23.
[4] Id. at 1123.
[5] Id.
[6] Id.
[7] Id. at 1124.
[8] Id. See Cal. Fam. Code §1615, amended by Stats. 2001, Ch. 286, Sec. 2 (effective January 1, 2002):
(a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:
(A) That party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party.
(B) That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
(C) That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
(b) An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.
(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following:
(1) The party against whom enforcement is sought was represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
(2) The party against whom enforcement is sought had not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
(3) The party against whom enforcement is sought, if unrepresented by legal counsel, was fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. The explanation of the rights and obligations relinquished shall be memorialized in writing and delivered to the party prior to signing the agreement. The unrepresented party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and indicating who provided that information.
(4) The agreement and the writings executed pursuant to paragraphs (1) and (3) were not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.
(5) Any other factors the court deems relevant.
[9] The parties’ Islamic marriage contract was executed in Michigan. Technically, the laws of Michigan may apply to determine whether the Islamic marriage contract was a valid prenuptial agreement and/or whether the marriage was valid. Unlike California, Michigan has not adopted the Premarital Agreement Act. But like California law, Michigan law requires financial disclosures and advice of counsel for a valid premarital agreement.
[10] In re the Marriage of Turfe, supra note 1, at 1124.
[11] 88 Cal. App.4th 398; 105 Cal. Rptr.2nd 863 (2001).
[12] See generally Abed Awad, Marriage, in The Oxford Encyclopedia of Islam and Women 625-30 (Natana J. DeLong-Bas ed., 2013).
[13] Id.
[14] Mahr/dowry is not a bride price. See id.
[15] See, e.g., David Pearl & Werner Menski, Muslim Family Law 179 (3d ed. 1998) (“Mahr/dowry is not a consideration for the contracting of the marriage; the dowry must be clearly seen as an effect of the contract of marriage rather than the price paid by the husband for acquiring the various rights which accrue to him on marriage.”); see also Jamal J. Nasir, The Islamic Law of Personal Status 86-7 (2d ed. 1990).
[16] 94 Mass. App. Ct. 123 (2018). See, e.g., Aziz v. Aziz, 127 Misc. 2d 1013, 488 N.Y.S. 2d 123 (Sup. Ct. Queens, 1985; Habibi-Fahnrich v. Fahnrich,1995 WL 507388 (N.Y.Sup. July 10, 1995); Odatalla v. Odatalla, 355 N.J. Super. 305 (2002); Abdallah v. Sarsour, 2006 Va. Cir. LEXIS 60 (2006); Rahman v. Hossain, 2010 WL 4075316 (2010); and In re Marriage of Obaidi, 2010 Wash. App. LEXIS 2886 (2010).
[17] See, e.g., Ahmed v. Ahmed, 261 S.W. 3d 190, 196-197 (App. 14th District, 2008) (holding that a mahr agreement was not a valid premarital agreement under Texas law but remanding to the trial court “to allow [wife] another opportunity on remand to prove that the Mahr agreement is enforceable on grounds other than as a premarital agreement, be it a partition and exchange agreement or otherwise.”).