Our blog post about Zawahiri v. Alwattar (No. 07AP-925) will provide our readers with extremely important practice tips on how to handle the enforcement of a Muslim Marriage Contract. As we’ll explain in detail below, the way a claimant describes her Muslim Marriage Contract – as a prenuptial agreement or as a simple contract – could have a direct impact on the likelihood of its enforcement. Refresh your memory of Zawahiri by reading our short case digest, which can be found by clicking here.
In Zawahiri, the Court held that the Muslim Marriage Contract, as a prenuptial agreement, was not enforceable; however, the Court also held that a Muslim Marriage Contract could be enforceable as a simple contract. The Zawahiri case is a great example of how your knowledge of Islamic law, the Muslim Marriage Contract and American law can make or break your case seeking to enforce it. American courts considering a Muslim Marriage Contract must first try to understand what it is. The benchmark is American law. Is there anything similar to a Muslim Marriage Contract in American law?
In Zawahiri, the wife sought enforcement of her Muslim Marriage Contract. She relied on the theory that the Muslim Marriage Contract was an Islamic prenuptial agreement. At trial, the Court denied her request, holding that her Muslim Marriage Contract was an invalid prenuptial agreement. The Trial Court explained that under Ohio law a valid prenuptial agreement requires advice of counsel and full and complete financial disclosures. Of course, like the majority of Muslim Marriage Contracts, neither requirement was present in her case. On appeal, the wife changed her legal theory, arguing that the Marriage Contract was enforceable as a simple contract, not as a prenuptial agreement. Unfortunately, the Appellate Court refused to consider the new simple contract theory because the wife did not argue it at the trial level; as such, the Court held that wife waived her contract theory claim. The Court noted:
“Consequently, [wife] now contends on appeal that the marriage contract does not constitute a prenuptial agreement. However, at trial, [she] asserted a contrary argument. Below, [wife] argued that the marriage contract was a valid prenuptial agreement, and she insisted that the trial court enforce it as such . . . . Because [wife’s] new appellate argument contradicts the argument she presented to the trial court . . . we conclude that [wife] waived the argument.”
Interestingly, in dicta, by not considering the simple contract theory as waived and noting that the the wife would likely be able to obtain enforcement in a religious tribunal and possibly in a Syrian court, the Court left open the possibility of enforcement under the simple contract theory.
We have rounded up the majority of reported American cases across the country, and have noticed some trends. The cases fall into one of two categories: courts treating the Muslim marriage contract either as (1) an Islamic prenuptial agreement; or (2) as a simple contract between consenting adults.
While several courts have enforced the Muslim Marriage Contract as a prenuptial agreement, more and more courts are moving against enforcement under the prenuptial agreement theory for the simple reasons stated in Zawahari.
GROUP 1 CASES
[courts holding that the Muslim Marriage contract is a prenuptial agreement]
Enforced [Muslim Marriage Contract is a prenup and is valid]
Chaudry v. Chaudry, 159 N.J. Super. 566 (1978-New Jersey)
Akileh v. Elchahal, 666 So. 2d 246 (1996-Florida)
Afghani v. Ghafoorian, Record No. 1481-09-4 (2010-Virginia)
Not Enforced [Muslim Marriage Contract is a prenup but invalid]
In Re Marriage of Dajani, 204 Cal.App.3d 1387 (1988-California)
Chaudhary v. Ali, Record No. 0956-94-4 (1995-Virginia)
Ahmed v. Ahmed, 261 S.W.3d 190 (2008-Texas)
Zawahiri v. Alwattar, No. 07AP-925 (2008-Ohio)
In Re Marriage of Obaidi, 154 Wash.App. 609 (2010-Washington)
GROUP 2 CASES
[courts holding that the Muslim Marriage Contract is a simple contract]
Enforced [Muslim Marriage Contract is a simple contract and is valid]
Aziz v. Aziz, 127 Misc.2d 1013 (1985-New York)
Odatalla v. Odatalla, 355 N.J. Super. 305 (2002-New Jersey)
Abdallah v. Sarsour, No. CH-2005-2339 (2006-Virginia)
In the Matter of the Marriage of Altayar, 139 Wn. App. 1066 (2007-Washington)
Not Enforced [Muslim Marriage Contract is a simple contract but not valid]
Habibi-Fahnrich v. Fahnrich, No. 46186/93 (1995-New York)
In the Matter of the Marriage of Obaidi, 154 Wash.App. 609 (2010-Washington)
If there’s anything you’ve learned today, let it be this: Beware of how you characterize the Muslim Marriage Contract because more often than not, it is a matter of winning or losing.