Maher (also spelt Mahr and Mehr) is a sum of money that the man agrees to pay the woman in a Muslim marriage contract. The idea is to provide some financial security for the wife. Often, this amount is not paid right away or is payable upon divorce. The question is: does secular American family law uphold this obligation to pay in a religious prenuptial agreement?
The answer is both yes and no. There is not much judicial authority on this issue. A recent Ohio case found that payment of Maher should not be upheld in part because the payment was a religious act. On the other hand, there has been a New Jersey case that upheld payment of Maher as constituting part of a valid contract, rather than a prenuptial agreement.
The answer to the question is likely going to depend on the precise wording of the Maher in the marriage contract, the circumstances of its execution (e.g. was it executed minutes before the actual wedding ceremony), and the precise law regarding prenuptial agreements in the state in which the couple lives (each state’s laws are different).
In the recent Ohio decision the Maher was held to be unenforceable:
Ruling against a Muslim woman, the judge said: “the obligation to pay $25,000 is rooted in a religious practice, the dowry is considered a religious act, not a legal contract.” Now-divorced Raghad Alwattar argued that the dowry was part of an enforceable pre-nuptial agreement. The judge ruled, however, that a prenuptial agreement must be entered into without duress. Here husband Mohammed Zawahiri was hurried into making the agreement only a few minutes before the wedding
This case is on appeal.
In the New Jersey case, the Mahr was upheld. The judge said:
Why should a contract for the promise to pay money be less of a contract just because it was entered into at the time of an Islamic marriage settlement?” The court found that under the doctrine of “neutral principles of law,” it could enforce the agreement’s secular components – specifically a promise to pay $10,000. The wife presented the parties’ wedding video showing two families negotiating the terms as an imam prepared the document, which everyone read before signing. The judge concluded that it was “nothing more and nothing less that a simple contract between two consenting adults. It does not contravene any statute or interests of society.”
The above cases show some of the ways that a Maher can be attacked in court. There are many other ways of attacking a Maher including failure to raise it as an affirmative defense, unconscionability, failure to disclose assets, and duress.
Another consideration is legal fees. In these cases, the amounts at issue were in the $10,000 to $25,000 dollar range. I’m sure that both parties combined spent amounts in this range on attorneys.
Personally, I believe that Maher should not be enforceable in court. Because Maher is a religious matter, the resolution of any disputes relating to it is necessarily religious in nature. There should be a separation of church and state. The secular courts should not be put in the position of being arbiters of religious documents. Involving the judiciary in contentious matters of religious doctrine is an inappropriate intrustion of the judiciary into the realm of religion.
 | Do-it-yourself Prenuptial Agreement |
| Free Consultation with our Attorneys |
All this is very interesting.
very interesting, and a nice contrast of the two cases. i should point out that there have been several states that have considered the mahr issue (Florida, New Jersey, New York, California). most of them have upheld it as enforceable, depending, of course, on how the duty is phrased in contractual terms.
the issue here is not quite as simple as “maher is a religious matter.” in fact, it’s not – in islamic law, marriage is a matter of contract. if we’re going to say that american law is going to dictate what is or is not a religious matter – well, that is a strange result indeed. so, taking our cue from the actual definition of mahr, it is actually simply a matter of contract. this is where state law comes in: do the mahr terms in question actually satisfy the secular requirements for a valid contract? if so, then the mahr should be enforced. if not, then it should not – no matter it’s religious importance to some. this is where the separation between church and state can and should play it’s proper role.
keep in mind that the enforcement of mahr does not require a religious act – it’s religious importance already concluded at the end of the marriage ceremony itself. enforcing the mahr after a deadbeat husband refuses to pay only involves the payment of money. that’s all.
so the language you quoted from the new jersey case is key: why should mahr be less of a contact?
Actually marriage in Islam is purely and solely, a contract between individuals, it has nothing to do with religion as such, except the rules for marriage are laid down in the Quraan. Upon consumation of the marriage the wife has the right to the mahr stipulated in the contract, otherwise she may get only half.
The concept of marriage as a religious contract, sanctified by God, is a christian concept developed in the early middle ages to enable the church more control over wealthy families.
If a muslim person would invoke this concept as an Islamic concept you could accuse them of ”bidah” or innovation, a concept absolutely forbidden in Islam.
In India, Supreme Court of India in Daniel Latifi case has held that mehr is amount which is payable at the time of divorce to mohammedan wife. However the courts should not necessarily stick to the amount which is mentioned therein in the contract, as muslim wife is not entitled to maintenance except what she gets through mehr, hence enough money should be paid to her in the form of mehr which is sufficient for remaining life sustainence. Hence the amount which is payable as mehr may be increased if courts are of opinion that it is not sufficient.
Recent Ontario decision upheld enforcement of Maher:
Khanis v. Noormohamed [2009] O.J. No 2245 (Ont. S. C.J.)
I disagree with the point presented that this is a matter of seperation of church and state. The marriages refered to in this article were religious in conception, yet, the state granted the divorces. Maher is a concept in many pre nups, it is just not identified as such. Hence they should all always be enforced by the courts. This is just one womans opinion, thank you for providing a forum for my voice.
you are so right – this should be in court ruling, both parties signed this in a muslim tradition, and if the wife decides to leave the marriage, she is breaking muslim law, muslim culture, she will forsure not get it
Of course Mahr should be enforced. However it should be regarded as a prenuptial agreement, which is what it is. It’s a private agreement governing what would happen in the event of divorce. Calling it a Muslim name or the fact that it’s in accord w/Muslim religious practice has no bearing.
This means that it also must be entered into with the same requirements as a prenup.
The first decision was correct. The second one was wrong.
[...] full post on Prenuptial Agreements This post has been viewed 2 times. Couples Seeking Couples Couples Seeking Women Men Seeking [...]
Would be interesting to see a few more cases on this.
Man and woman marry. Maher is agreed to be paid at a later during the Nikah ceremony. Few months into marriage, wife is having extramarital affairs with other men while husband is at work. Wife is divorced. Question: Is the maher still due the ex wife? Some people say yes…some people say no? Thoughts?
Mahr has no place in secular law. It i relogious- based and initiated by Quaran andenterd by muslim man and woman in different social context.. It is buy and sell contract and selling sedx for money, it is in conflict with variety of local family laws and if Mahr even is considered a contract, it comes with other contractual items like wmen do not have right to divorce, there i no provision of spousal support, a contract can not be implemented unilaterally, it is a family debt which should be devided. Better speaking a secular court can not enforce the maher as it violates local laws ad creates wide rang of complexity. People who think it i a pre-nap have no ida about the legal matters. Any court rulling that orders in favor of Mher can ealy b overturned b Supreme court
Is Maher payable if the wife seeks to leave the husband. Over a silly mistake he made[ Swore at her a few times and then left the house] – later said sorry and sat her down and promised he would not do it again!
1 is she allowed to get a Khula over such a little matter
2 Does she have a right to Maher is she is leaving him!
“why should mahr be less of a contact?”
Stupid question. Selling the body and putting price tag on herself is prostitution. It is against the dignity of women and that so-called agreement does have other clauses which stress out the obedience of the wife-to-be. A partial execution of agreement make it void. From the comments here I can see that people(women and pussified guys) just want free ride. They ignore many legal facts, which is no surprise
Mahr is alimony paid in advance to a Muslim woman or her father/guardian making the man free to divorce her in simplest way – Talaq, Talaq, Talaq – anytime. A rich man can marry and divorce innumerable women. Divorce rate in gulf countries therefore used to be in the rage of roughly 20-40% in the first year.