Are Muslim Postnuptial Agreements Enforceable?

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, July 15, 2014.

Postnuptial property division, like prenups, help couples plan their future. Can agreements have Muslim or other religious principles in them? Illinois recently ripped one up.

I’ve written before about the enforceability of Muslim marital contracts. As the Volokh Conspiracy recently reported though, there is a new contract from Illinois that had some mixed non-religious and religious provisions. For example:

Husband shall name Wife as a tenant by the entirety of the property. Should Wife unreasonably file for divorce she will forfeit her right to any share of the home.

Husband and Wife agree to base their life and marriage on the Holy Quran and Sunnah, as practiced in the Islamic religion.

Husband and Wife agree not to call the police for any incident.

Husband and Wife agree that any violation of any of this agreement avails each party to forfeiture of all rights herein, including custody.

The Illinois appellate court said the contract was unenforceable. Not because you can’t have Islamic principles in a contract, but because the contract violated normal, non-religious principles. For example:

It gave the husband sole power to determine which parent gets custody of the children.

An “unreasonable divorce,” the linchpin on which the entire agreement turns, is vague, ambiguous, and uncertain.

The court also held the agreement was “substantively unconscionable” because it was so one-sided. The Wife forfeited all her rights to the largest asset, if she unreasonably filed for divorce, but not the husband.

Muslims, as all religious peoples, are entitled to enter into contracts that reflect their unique religious principles. But all agreements in the United States are limited by standard contract law, family law and Florida public policy.

The Volokh Conspiracy is here.