The Texas Supreme Court recently had to decide whether an Islamic prenuptial agreement is enforceable. Especially interesting is whether the agreement’s, Arbitration by Fiqh Panel Clause, can be enforced in a family law case involving children.
‘All My Exes Live In Texas’
The Wife, Ayad, and her Husband, Latif married in 2008. In connection with their marriage, they signed an “Islamic Pre-Nuptial Agreement”.
In the Islamic Pre-Nuptial Agreement, they said: “Belief that Islam . . . is binding on them in all spheres of life, and that any conflict which may arise between the husband and the wife will be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court, or in its absence by a Fiqh Panel.”
The three-person Figh Panel will be selected and provides that the panel “will not represent the parties in conflict, but rather, serve as impartial arbitrators and judges, guided by Islamic Law and its principles.” The majority decision of the Fiqh Panel will be binding and final.
Although the Wife’s signature appears on the Islamic Pre-Nuptial Agreement, she alleges that she did not become aware of its contents—or even see it—until she and her husband began experiencing marital difficulties in 2020.
The Wife argues she was “defrauded” into signing a prenup that violated her fundamental rights. In January 2021, she filed for divorce and sought to be appointed joint managing conservator of the couple’s six-year-old son.
Wife argued the term “Islamic Law” was too indefinite; the Agreement was void because it violated public policy; Husband’s previous breaches of the Agreement had excused Ayad from performing; and the Agreement was unconscionable.
The trial court held a hearing on Husband’s motion to enforce, and concluded it would order the parties to arbitrate under the Agreement. The court held a second hearing in which it gave each party twenty minutes to address solely whether the Agreement was entered into voluntarily.
The trial court ruled it had no discretion under the Texas General Arbitration Act but to enforce the Agreement and refer the parties to arbitration per the terms of their Agreement, but would review the award to determine if it violated constitutional rights or public policy, and would hold a hearing to determine whether the award was in the best interest of the child.
The Wife sought review in the Supreme Court of Texas.
Florida and Islamic Prenuptial Agreements
I’ve written about religious prenuptial agreements, such as the Mahr (Islamic Prenuptial Agreement) before. Prenuptial agreements are not just for celebrities. Anyone who brings personal or business assets into their marriage can benefit from a prenuptial agreement.
Prenups are also important to have in place before a couple starts investing in businesses, buying properties, and accumulating mountains of debt. Many religions, especially Islam, have terms couples want to be governed by in the event of divorce.
But just having a prenup is not enough. Prenups are frequently challenged in court. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.
Florida also adopted the Uniform Premarital Agreement Act. The UPAA requires that all premarital agreements be in writing and signed by both parties. It is enforceable without consideration other than the marriage itself.
Because prenuptial agreements may be challenged in court, Florida courts must consider things such as fraud, duress, coercion, in addition to the constitutionality of prenups, whether they violate Florida law or Florida public policy.
‘Deep in the Heart of Texas’
The Supreme Court of Texas agreed with the Wife that the family court was required to hear and determine her challenges to the Agreement’s validity and enforceability before referring the parties to arbitration.
The Family Code, which provides that a trial court “may” refer suits for dissolution of marriage to either binding or nonbinding arbitration based on the parties’ written agreement is subject to certain limits.
Before arbitration, if a party to a divorce asserts that the agreement to arbitrate is not valid or enforceable,” then the court may order arbitration only if it determines that the agreement is valid and enforceable.
Here, the court incorrectly concluded it “must refer parties to arbitration when it is contracted by the parties,” and that it had “no discretion but to enforce the Agreement.” Since the trial court did not resolve the Wife’s challenges in its order compelling arbitration, and incorrectly concluded it could not, the trial court erred.
The Texas Supreme Court opinion is here.