Muslim Divorce Contracts in Florida

On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Monday, April 7, 2014.

The Florida legislature re-introduced an anti-Sharia law bill this term. It is an effort to limit the applicability of foreign law in property division proceedings, especially contract provisions. However, some religious contract provisions have been enforced in Florida, and with good reason. This bill may stop that.

Consider the case in Kansas I mentioned before. Pursuant to Islamic customs, the Husband transferred over $116,000 in premarital funds to his bride, culminating in a Muslim marriage contract-signing ceremony. Then they traveled to Kansas, where a judge conducted a separate marriage ceremony.

Less than two years later, the Husband filed for divorce. The parties signed a mahr agreement and the Wife contends that because of the divorce, she gets the roughly $677,000 agreed to in the mahr from the husband.

However, Kansas passed a bill (similar to what Florida is considering) prohibiting courts from applying foreign law, legal codes or systems that violate the public policy of Kansas – a bill viewed as preventing courts from applying Shari’a law (although the bill doesn’t mention Sharia by name).

Similar to Florida, Kansas generally allows premarital agreements unless they violate public policy, or fails to provide adequate disclosure and is unconscionable.

However, the Kansas court decided not to enforce the mahr, and instead imposed as a property settlement that the ex-husband retains his premarital property after conferring the equivalent of $116,000 in gifts on the wife before the marriage.

The problems with the Muslim mahr agreement found by the court:

The provisions in the mahr would function as a penalty based on fault – since the mahr provides for fault-based payment – contrary to no-fault divorce principles.

The high amount of the divorce payout could be viewed as encouraging divorce, contrary to Kansas (and Florida) public policy.

The religious origins of the agreement are problematical. Mahr agreements stem from jurisdictions that do not separate church and state, creating a tension with our Constitution.

Mahr agreements can be short on operative details, definitions, and explicit requests to have their terms represent an entire remedy at law in a civil courtroom.

Mahr agreements might not meet the Uniform Premarital Agreement Act’s definition of a prenup.

Currently, in Florida, the issue of whether a Muslim prenuptial agreement is enforceable depends on whether it complies with Florida’s secular contract law. If so, secular terms may be enforceable as any contractual obligation.

The anti-Sharia bill is a hot-button issue again this year. Religiously motivated agreements should be interpreted as secular documents, if a court can use neutral principles without evaluating religious doctrine.

The Kansas case can be read here.