Does Family Law Uphold “Maher”?

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.


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