Tag: Muslim Marriage Agreements

Enforceability of Islamic Prenuptial Agreement

Posted by Ron Kauffman on

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.

Texas Islamic Agreement

‘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.

Divorce Causes in India

Posted by Ron Kauffman on

Divorce can have many causes, but in India there is a bizarre case going on in which a Muslim woman has sought divorce in an Islamic court from her husband on the grounds that he does not fight with her enough.

India Divorce

The Spice of Life

The unidentified woman in the Sambhal district of Uttar Pradesh has sought a divorce from her husband after only 18-months of marital bliss. The woman approached the Sharia court in Sambhal to seek a divorce, leaving the court puzzled.

Why was the court so confused?

The chief complaint from the woman is that her husband loves her too much and does not fight with her. The woman claimed that her husband’s love was ‘suffocating’ her.

“He does not shout at me and neither has he upset me on any issue. He even cooks for me and also helps me in performing household chores.”

She further said, “Whenever I make a mistake, he always forgives me for that. I wanted to argue with him. I do not need a life where the husband agrees to anything.”

The Sharia court cleric, as expected, rejected her plea for divorce, terming it as frivolous. When the Sharia court refused to grant her divorce, the woman took up the matter with the local panchayat (the local self-government in villages in rural India), which also expressed its inability to decide the issue.

Florida No Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. So, whether your husband is always forgiving of your mistakes, or worse, very agreeable to anything you want, you don’t need to allege that as a grounds for divorce.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your husband’s nice demeanor. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or annoying behavior in a government enforced quarantine.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

What do you do if you are trapped in quarantine with someone you want to separate from?

To avoid problems during a quarantine, you may have to force yourself to work together – however difficult that may be.

Couples who are separating or separated already, and are parents, are being forced to work as a team and talk through problems that are making forced quarantine impossible. Reassure each other that you will make it through and work together.

The key if you’re living together is to strike the right balance between having quality intimate time together, or if you’re at the brink of your relationship, giving each other some space.

Divorce Bollywood Style?

Back in India meanwhile, the nice husband has gone on record and stated that he loved his wife dearly and always wanted to keep her happy. He also asked the Sharia Court cleric to reject the divorce plea. Of course.

The court has now asked the couple to resolve the matter mutually.

The Tribune India article is here.

 

International Divorce on the Rise in Turkey

Posted by Ron Kauffman on

Fewer people in Turkey got married in 2019 while more filed for divorce as compared to the previous year, said the Turkish Statistical Institute recently. Because many foreign spouses are involved in Turkish divorces, these statistics raise international divorce issues.

Turkey international divorce

What’s Cooking in Turkey

Turkey is a predominantly Muslim country governed by secular laws. Women have equal rights to property and are eligible for alimony after divorce. But Turkey’s conservative Justice and Development Party has pushed a strong family values agenda.

Turkey provides incentives for married couples such as a tax break, and women who work part-time can get subsidized childcare. Despite such measures — and to the government’s dismay — the rate of marriage has declined by 27 percent.

Divorce — though originally sanctioned more than 1,400 years ago by Islamic law — is still widely viewed in Muslim societies as a subversive act that breaks up the family.

Women who seek divorce can often find themselves ostracized and treated as immoral. Despite such taboos and restrictions, however, divorce rates are rising across Islamic countries, even in ultra-conservative places like Afghanistan.

Turkey, in particular, is seeing a record number of divorces, as both women and men are looking for a way out of unhappy and sometimes abusive marriages. Over the past 15 years, the divorce rate has risen from under 15 percent of marriages to nearly a quarter of them.

Domestic violence is almost always cited as a leading reason by Turkish women seeking a divorce. This is true even outside urban areas, which have also seen a slight growth in divorce cases; increasingly, women are willing to seek divorces in smaller, religious towns such as Konya, in central Anatolia, where Nebiye was raised. More of these girls and women also now have access to education and online information.

Florida International Divorce

International divorce often brings up the issue of jurisdiction. Who sues whom, how do you sue for divorce, and in what country are problems in an international divorce case? The answers are more difficult than people think as I have written before.

A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London. However, in Florida, the outcome could be different still.

Rules about children and hiding assets is a problem in every divorce, especially in international cases. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.

The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.

Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.

Choosing possible countries to file your divorce in can be construed as “forum shopping”. The European Union introduced a reform called Brussels II, which prevents “forum shopping”, with a rule that the first court to be approached decides the divorce. But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.

Residency for divorce is a very important jurisdictional requirement in every case. Generally, the non-filing party need not be a resident in the state in order for the court to divorce the parties under the divisible divorce doctrine. The court’s personal jurisdiction over the non-filing spouse is necessary only if the court enters personal orders regarding the spouse.

The durational domicile or residency requirement goes to the heart of the court’s ability to divorce the parties, because the residency of a party to a divorce creates a relationship with the state to justify its exercise of power over the marriage.

Well Done Turkey

According to government statistics, the number of couples who got married was 554,389 in 2018, and 541,424 in 2019, decreasing 2.3 percent. The crude marriage rate – the number of marriages per thousand population – was 0.656 percent in 2019, down from 0.681 percent in 2018.

Age difference at first marriage between male and female was 3 years. The province having the highest mean age difference at first marriage was the northeastern province of Kars with 4.5 years.

TÜİK also gave data on the proportion of marriage with foreign partners of total marriages, saying the proportion of foreign brides rose, while it fell for grooms.

The number of foreign brides was 23,264 in 2019, 4.3 percent of total brides. Syrian women topped the foreign brides with 14.5 percent, followed by Azerbaijani brides with 11.7 percent and German brides with 10.5 percent.

On the other hand, the number of foreign grooms was 4,580 in 2019, 0.8 percent of total grooms,” it noted. When analyzed by citizenship, German grooms took first place, accounting for 34.1 percent of the overall figure. German grooms were followed by Syrian grooms with 13.1 percent and Austrian grooms with 7.8 percent.

The Hurriyet Daily News article is here.

 

Marital Settlement Agreements

Posted by Ron Kauffman on

“Shahs of Sunset” star Golnesa “GG” Gharachedaghi is having an interesting divorce problem. Her pending divorce from her husband, Shalom Yeroushalmi, has run into a serious roadblock: her husband refuses to sign the divorce papers.

According to a Page Six report:

“There are no issues about spousal support, assets or those typical divorce things at all,” the source said. “He is not asking for anything. What he’s basically doing is tormenting her. He’s not signing just to give her a hard time.”

“He just keeps saying he’s going to sign, then he doesn’t sign,” the source added. “He’s trying to drag it out and prevent her from moving on.”

Marital Settlement Agreements

Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities (called “equitable distribution”), alimony, child support, payment of attorney’s fees and costs, and any other items to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability of contracts in Florida is a matter of importance in Florida public policy.

Accordingly, because a marital settlement agreement is treated like any other contract, and is subject to interpretation like any other contract, they can be enforced by the court.

Conclusion

If Yeroushalmi signs the marital settlement agreement, the divorce petition can make its way through the system, allowing the former couple to sever all formal ties. However, if he doesn’t, a judge may grant GG a default divorce after a considerable amount of time of inactivity on Yeroushalmi’s behalf.

GG and Yeroushalmi had a whirlwind romance. They secretly tied the knot at the end of January 2017, though GG realized within days she had made a terrible mistake.

“I wanted to throw up, “she said. “I was just thinking, ‘My dad’s going to kill me right now. And my mom is going to wake me up and then kill me again.’”

She filed for a divorce after one month of marriage.

The Page Six article is here.

Are Muslim Postnuptial Agreements Enforceable?

Posted by admin on

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.