ENFORCEABLE MARRIAGE CONTRACTS

Article I, Clause I, of the United States Constitution elevated contracts above interference by Congress or the states making contracts as cherished and protected as First Amendment freedoms. Sometimes the contracts at issue arise from religious transactions but if the contracts are sufficiently non-religious in language that Neutral Principles of Law can be applied to enforce them courts may do so.

In Nouri v Dadgar, Slip Op. (Maryland App. 2020), in a consolidated case, two Islamic marriage contracts, known as “Mahrs,” contained a clause, sometimes called a “Sadaq,” that required upon divorce the male spouses to immediately pay $608,000 and $492,750 (the value of gold coins and trips set forth in the “Mahrs”), respectively. The purpose of these marriage contracts was to discourage divorce. The appellate court held the “Mahrs” were not against the public policy of Maryland and objectively determinable terms were enforceable. However, the Court remanded the cases to the trial courts to reconsider whether these particular “Mahrs” met the standards for validity of civil contracts, that because the contracts arose in a “confidential relationship” there had to be a determination that the contract was not tainted by overreaching, unequal bargaining power or other inequities. (This summary may not be doing full justice to this very well-reasoned and documented opinion, which was also an excellent short primer on the subject.)

We reported on a Connecticut court opinion from 2019, Tilsen v Benson, Slip Op., 2019 WL 6329065 (Supp. Ct. Conn., 2019), in a post entitled Church Prenuptial Agreements. In Tilsen, the prenuptial Torah based “ketubah” was not deemed enforceable in a civil court because of the Ecclesiastical Abstention Doctrine. The Torah agreement required interpretation by experts in Torah law. In the Maryland case reported above, the “Mahrs” were held to be Islamic marriage contracts and not pre-nuptial agreements.

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