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A Student Note: Religious Marriage Contracts: Judicial Enforcement of Mahr Agreements in American Courts*

Published online by Cambridge University Press:  24 April 2015

Ghada G. Qaisi
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During the latter part of the twentieth century, Islamic law or shari'a has had an increasingly practical influence on the types of cases adjudicated in American courts. As the Muslim population continues to grow, the American legal system will inevitably face interesting, complex family law questions that are intertwined with Islamic law. While religious denominations have a genuine and continuing interest in marriage and its rights and obligations, religious laws are clearly subordinate to state secular law. A religious marriage is valid only to the extent that it complies with a state's statutory requirements. Likewise, state statutes regulate divorce and designate specific state courts as the forum for the divorce proceeding. Since marriage and divorce are controlled by secular state law, it is insufficient for Muslims to adhere solely to the shari'a on these matters. However, as the state continues to cede some of its traditional authority in favor of increased private ordering of the institution of marriage, religious adherents are looking to contracts as a means to abide by religious precepts and secular law. These contracts provide methods whereby “parties agree to internal (religious law) resolutions of marital disputes, but the agreement itself is enforceable by the external authorities.”

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Articles
Information
Journal of Law and Religion , Volume 15 , 2001 , pp. 67 - 81
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2000

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Footnotes

*

This paper won first prize in the Virginia Matrimonial Lawyers Association Writing Competition and second prize in the American Judges Association Writing Competition in 2000.

References

1. See Clark, Homer H., The Law of Domestic Relations in the United States § 2.1, 72 (2d ed., West 1987)Google Scholar; see also Weisbrod, Carol, Church and State: An Essay on Constitutionalism and Religious Authority, 126 J. Fam. L. 741, 745–747 (1987–1988)Google Scholar.

2. See Clark, supra n. 1, § 2.3, 86. The laws of all fifty states require a couple to procure a license before marriage; additional procedural requirements, such as statutorily mandated waiting periods or medical examinations, vary according to jurisdiction. See id. at 87-88. Prospective spouses may solemnize their marriage by means of a civil or a religious ceremony so long as the parties and the religious officials comply with the state's secular marriage requirements. See id. at 90. For cases dealing with recognition of Muslim marriages that have failed to comply with statutory requirements, see Aghili v. Saadatnejadi, 958 S.W.2d 784 (Term. Ct. App. 1997) (finding imam qualified to solemnize marriages under Tennessee law and holding that failure of the imam to file the marriage license with the clerk within three days of marriage did not invalidate the marriage); Farah v. Farah, 429 S.E.2d 626 (Va. Ct. App. 1993) (holding invalid proxy marriage celebrated in England because it failed to conform with the requirements of the Marriage Act of England).

3. See Clark, supra n.1, § 15.1, at 697. Parties must obtain a judicial divorce under the secular divorce laws of the state. Spouses that have obtained a religious divorce may consider themselves eligible to contract a second marriage, but in the absence of a civil divorce, the parties are still legally married and the subsequent marriage could raise the possibility of being prosecuted for bigamy. See e.g. In re Spiegel, 24 F.2d 605 (S.D.N.Y. 1928) (holding remarriage after a religious divorce alone invalid). For an explanation of why American courts only recognize civil divorce and not religious divorce, see Shikoh v. Murff, 257 F.2d 306 (2d Cir. 1958).

4. For this reason, it is not uncommon to find Muslims and other ethnic or religious minorities which “marry twice, divorce twice and do many other things several times in order to satisfy the demands of concurrent legal systems.” Pearl, David & Menski, Werner, Muslim Family Law 75 (3d ed., Croom Helm 1998)Google Scholar.

5. See e.g. Nichols, Joel A., Comment, Louisiana's Covenant Marriage Law: A First Step Toward A More Robust Pluralism in Marriage and Divorce Law?, 47 Emory L.J. 929, 987 (1998)Google Scholar (noting Rabbi Michael Broyde's view that signing a prenuptial agreement is the single most important thing couples can do before they get married and that “[premarital agreements] can eliminate most future cases of Agunah if pre-nuptials become the norm in our [Orthodox Jewish] communit”).

6. Id.

7. When parties enter into a marriage they not only enter into a new relationship, but into a contract based upon the general law of the state. See Maynard v. Hill, 125 U.S. 190, 205 (1888) (establishing the traditional view that marriage is a status relationship involving three parties— husband, wife, and state—and holding that the state may validly regulate such a relationship). Thus, once the marital relationship is formed, the state steps in to hold the parties to various obligations and liabilities. See id. at 211. The prevailing view is that marriage has elements of both status and contract, but that the balance between the two has shifted over time. See Swisher, Peter N.et al., Family Law: Cases, Materials, and Problems § 1.02 at 4 (2d ed., Bender 1998)Google Scholar. To date, only a small minority of jurisdictions have viewed marriage as a contract rather than a status. See e.g. Ryan v. Ryan, 111 S.2d 266 (Fla. 1973); Ponder v. Graham, 4 Fla. 23 (1851)Google Scholar; Seizer v. Sessions, 915 P.2d 553 (Wash. Ct. App. 1996), rev'd on other grounds 940 P.2d 261 (Wash. 1997).

8. See Singer, Jana B., The Privatization of Family Law, Wis. L. Rev. 1443, 1460 (1992)Google Scholar (discussing that privatization has paralleled the rapid social change in America over the last 30 years and comparing the advantages and disadvantages of this trend).

9. See Gregory, John D.et. al, Understanding Family Law § 4.02, 80 (Bender 1993)Google Scholar.

10. See Posner v. Posner, 233 S.2d 381 (Fla. 1970). Prior to the decision in Posner, premarital agreements could not include any contingent divorce planning provisions, while premarital agreements addressing the property rights of a surviving spouse at widowhood have long been upheld in many states. See e.g. Crouch v. Crouch, 385 S.W.2d 288 (Tenn. Ct. App. 1964); see also Brod, Gail Frommer, Premarital Agreements and Gender Justice, 6 Yale J.L. & Feminism 229, 255 (1994)Google Scholar. Since 1970, courts have held that contingent divorce planning provisions in prenuptial agreements should not be invalid per se and must be tested by the objective intent of the parties themselves. See e.g. Posner, 233 S.2d 381; Frey v. Frey, 471 A.2d 705 (Md. Ct. Spec. App. 1984); Unader v. Unader, 506 P.2d 109 (Or. 1973); see also Swisher, Peter N., Divorce Planning in Antenuptial Agreements: Toward a New Objectivity, 13 U. Rich. L. Rev. 175 (1979)Google Scholar [hereinafter Swisher, Divorce Planning].

11. More than half of the states have adopted the Uniform Premarital Agreement Act (UPAA) of 1983, 9B U.L.A. 369 (1983)Google Scholar. The UPAA, authorizes spouses to contract with each other to their respective property rights and support obligations as well as “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing criminal liability.” Id. § 3. Under section 6 of the Act, a premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) the party did not execute the agreement voluntarily; or (2) the agreement was unconscionable when it was executed if a party: (i) was not provided with a fair and reasonable disclosure of the property or financial obligations of the other party; (ii) did not voluntarily and expressly waive, in writing, such disclosure; and (iii) did not have adequate knowledge of the property or financial obligations of the other party. Id. § 6(a).

Non-UPAA states continue to apply either a “traditional” or “modern” approach regarding divorce planning in premarital agreements. See Gregory et al., supra n. 9, § 4.02, 83. Under the traditional approach, a premarital agreement is valid if the (1) premarital agreements provided for full disclosure of the parties' assets, or alternatively, a “fair provision” was given to the needy spouse; and (2) independent legal advice was provided to the less empowered spouse. See e.g. In re Estate of Benker, 331 N.W.2d 193 (Mich. 1982); Friedlanar v. Friedlanar, 494 P.2d 208 (Wash. 1972); see also Gregory et al., supra n. 9, § 4.02, 80. Under the modern approach, courts review premarital agreements for both procedural and substantive fairness. Alimony and support provisions are upheld if (1) the contractual terms were fair, and (2) the contract was made with full disclosure of the parties assets. See e.g. In re Marriage of Spiegel, 553 N.W.2d 309, 314-315 (Iowa 1996) (upholding a prenuptial while admitting difficulty inherent in evaluating agreements for substantive fairness); Brad, supra n. 10, at 256-259; see also Premarital and Marital Contracts: A Lawyer's Guide to Drafting and Negotiating Enforceable Marital and Cohabitation Agreements 8–22, 22–28 (Winer, Edward L. & Becker, Lewis eds., ABA Pub. 1993)Google Scholar [hereinafter Premarital & Marital Contracts].

12. See e.g. Hodkinson, Keith, Muslim Family Law: A Sourcebook 89 (Croom Helm 1984)Google Scholar; Nasir, Jamal J., The Status of Women Under Islamic Law 42 (Croom Helm 1990)Google Scholar.

13. See Nasir, supra n. 12, at 56. Commonly used stipulations include agreements on mahr, that the marriage will not be polygamous, and specifications of the wife's financial independence, right to work, or education. See id; see also al-Hibri, Azizah Y., Marriage Laws in Muslim Countries: A Comparative Study of Certain Egyptian, Syrian, Moroccan, and Tunisian Marriage Laws, 4 Intl. Rev. Comp. Pub. Policy 227, 234–237 (1992)Google Scholar.

14. Nasir, supra n. 12, at 86. Various translations of mahr into English, such as dower, dowry, brideprice, or “token of respect,” fall short of legal meaning of the term. The definition adopted by the Islamic scholar Abu Zahrah expresses the concept of mahr in Islamic law:

The [mahr] is a due which the husband must pay to the wife in accordance with the marriage contract, but it is not a condition which affects the validity of the contract, nor is it an essential requisite. Therefore, if the [mahr] is not mentioned in the contract, the contract is still valid.

1 Law in the Middle East141 (Khadduri, Majid K. & Liebesny, Herbert J. eds., Middle East Institute 1955)Google Scholar.

15. See Siddiqui, Mona, Mahr: Legal Obligation or Rightful Demand?, 6 J. Islamic L. 14, 15 (1995)Google Scholar.

16. Mahr should not be confused with “dowry,” which is a payment from the wife's family to the husband. Dowry payments are not part of the Muslim legal tradition, while mahr is an integral concept of Muslim marriage law. See Fyzee, Asaf A., Outlines of Muhammadan Law 133 (4th ed., Oxford U. Press 1974)Google Scholar. Unlike “dowry” which passes from the wife to the husband, mahr is designed to protect the wife and is therefore paid by the husband to the wife. See Nasir, supra n. 12, at 88.

17. The dower is not an essential or a condition for the “validity or binding effectiveness of the marriage contract.” Siddiqui, supra n. 15, at 15. An Islamic marriage contract is valid even without a specified amount of mahr. See Nasir, supra n. 12, at 87. It is also valid if the parties simply agree not to have a specified amount of mahr in the marriage contract. See al-Hibri, Azizah Y., Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. U. J. Intl. L. & Policy 1, 38 (1997)Google Scholar [hereinafter al-Hibri, Law & Custom]. However, in both instances, a husband still has the obligation to pay an appropriate mahr to the wife. See id. at 38 & n. 8; see also Siddiqui, supra n. 15, at 15 (explaining that where mahr is not stipulated, the wife is entitled to mahr al-mithl (proper dower) which is based on the mahr given to women of a similar social status or female relatives). By virtue of being implied in every marriage contract, mahr acts as a protective force for the woman. Most personal status codes in Muslim countries require that every marriage contract contain a mahr provision to protect the financial interests of the wife. See al-Hibri, Azizah Y., Symposium on Religious Law: Roman Catholic, Islamic, and Jewish Treatment of Familial Issues, 16 Loy. L.A. Intl. & Comp. L.J. 68, 68 (1993)Google Scholar [hereinafter al-Hibri, Symposium].

18. The distinction between “prompt” and “deferred” dower is very important in theory and in practice. Where the mahr remains unpaid or undelivered, it becomes a senior debt of the husband and will be paid to the woman or her heirs, see al-Hibri. Symposium, supra n. 17, at 69. If the marriage contract does not specify the mahr to be prompt or deferred, the general presumption is that it is prompt, but this varies according to social custom. See Nasir, supra n. 12, at 89-90.

19. See al-Hibri, Symposium, supra n. 17, at 68; see also Fyzee, supra n. 16, at 132-133. In general, women prefer to have a substantial deferred dower because it is viewed as security for later years. See al-Hibri, Symposium, supra n. 17, at 68. Additionally, it is seen as security against the possibility of an unjustified divorce by the husband or a provision in case of the husband's death. See id.

20. See e.g. Avitzur v. Avitzur, 58 N.Y.2d 108 (N.Y. 1983), cert. denied, 464 U.S. 817 (1983) (equating ketubah with an antenuptial agreement allowing the parties to agree in advance to methods of dispute resolution); Aziz v. Aziz, 488 N.Y.S.2d 123 (N.Y. Sup. Ct. 1985). But, there is an argument to the contrary: that the ketubah may not be interpreted under traditional contract law because it fails to comply with basic contract principles, mainly because it usually not negotiated or bargained for at arms' length. See Greenberg-Kobrin, Michelle, Civil Enforceability of Religious Prenuptial Agreements, 32 Colum. J.L. & Soc. Prob. 359, 359 & n. 117 (1999)Google Scholar (“[T]he standard hallmarks of a contract are often absent in religious prenuptials, as they are rarely freely negotiated.”); Kahan, Linda S., Note, Jewish Divorce and Secular Courts: The Promise of Avitzur, 73 Geo. L.J. 193, 216–219 (1984)Google Scholar (arguing that absence of intent to be contractually bound when signing the ketubah); cf. Simeone v. Simeone, 581 A.2d 162 (Pa. 1990) (treating premarital agreements as ordinary contracts). This decision, and UPAA § 6, which some say goes even further, have been criticized as “shedding the common law principles protective of women.” See Brod, supra n. 10 at 253, 275-279.

21. See al-Hibri, Symposium, supra n. 17, at 67.

22. See generally Warmflash, Laurence M., The New York Approach to Enforcing Religious Marriage Contracts: From Avitzur to the Get Statute, 50 Brook. L. Rev. 229 (1984)Google Scholar. For instance, New York courts have recognized contracts requiring a husband to give a wife a Jewish divorce in addition to a civil divorce and have granted specific performance of such agreements.

23. See id. In religious divorce cases, one spouse may raise a Free Exercise claim asserting that the state cannot force the spouse to do something he or she considers to be religious, usually by arguing that the state cannot enforce a ketubah without violating the First Amendment. See e.g. In re Marriage of Goldman, 554 N.E.2d 1016, 1022-1024 (111. App. Ct. 1990) (finding the husband's free exercise claim to be without merit); see also Marshall, Lawrence C., Comment, The Religion Clauses and Compelled Religious Divorces: A Study in Marital and Constitutional Separations, 80 Nw. U. L. Rev. 204, 215 (1985)Google Scholar.

24. 403 U.S. 602 (1971).

25. Id.; see also Barshay, Ilene H., The Implications of the Constitution's Religion Clauses on New York's Family Law, 40 How. L.J. 205, 207 (1996)Google Scholar at 207 (noting that the third-prong of the test is the most difficult hurdle to overcome).

26. See Jones v. Wolf, 443 U.S. 595 (1979). Historically adopted by the Supreme Court in intrachurch property disputes, this approach employs objective standards of law to maintain neutrality and detachment from religious beliefs or practices. See id. at 604; see also Barshay, supra n. 25, at 209-213.

27. The Supreme Court has held that courts may look to and apply religious doctrine where courts “defer to the interpretation given by the religious authority [and] do not attempt to resolve any dispute within the church about the substance of the doctrine.” Jones, 443 U.S. at 602 (citing Serbia E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724-725 (1976)).

28. 443 U.S. at 602; see also United Methodist Church v. Super. Ct. of Col., 439 U.S. 1369 (1978) (commenting that it may also be appropriate for a secular court to resolve religious issues where fraud or breach of contract is alleged).

29. 488 N.Y. S.2d 123 (N.Y. Sup. Ct. 1985).

30. Id. at 124.

31. Id.

32. Id.

33. 58 N.Y. 2d 108 (N.Y. 1983), cert. denied, 464 U.S. 817 (1983). The Jewish couple had been married in a Jewish ceremony and entered into a ketubah containing a Lieberman clause. See id. at 112. The clause, usually found in an orthodox or conservative Jewish ketubah, essentially provides that in the event of marital difficulty, the couple recognizes the authority of the Beth Din to resolve the dispute. For further explanation of the clause and its use, see Breitowitz, Irving A., Between Civil and Religious Law: The Plight of the Agunah in Am. Socy. 96–97 (Greenwood Press 1993)Google Scholar [hereinafter Breitowitz, Plight of Agunah]. The husband was granted a divorce on grounds of cruel and inhumane treatment. 58 N.Y. 2d at 112. The wife sought to bring the husband before a Beth Din in order to initiate the ger process and receive a religious divorce. Id. When the husband refused to appear, the wife argued that the ketubah was a marriage contract that the husband had breached. Id. The court reasoned that the parties, in signing the ketubah, entered into a contract which formed the basis of their marriage. Id. at 113. The contractual obligations were analogized to that of a secular antenuptial agreement calling for the arbitration of a dispute. Id. at 114. The court held that nothing in the law or public policy prevents judicial recognition and enforcement of the secular terms of a religious marriage agreement. Id. at 115. The court denied that the religious character of the ketubah was a constitutional barrier to the court's ability to grant the relief requested and thus enforcement of the marriage contract did not violate the Constitution. Id.

34. 488 N.Y.S.2d at 124 (citing Avitzur); see also Schwartz v. Schwartz, 583 N.Y.S.2d 716, 718 (N.Y. Sup. Ct. 1992) (holding “courts may use ‘neutral principles of law’ to resolve disputes touching on religious concerns”).

35. 666 So.2d 246 (Fla. Ct. App. 1996). Less than a year after the parties married, the wife contracted genital warts from the husband. Id. at 247. The marriage deteriorated and the wife left the marital residence, she filed for divorce upon learning that the husband was planning to leave the state. See id. The husband counterclaimed for dissolution of marriage. Id.

36. Id. at 247.

37. Id.

38. Id. at 248. The trial court further stated that even if there had been a meeting of the minds, the sadaq was meant to protect the wife from an unwanted divorce. Therefore, since the wife was the one who initiated the divorce, she would not be entitled to the sadaq. Id. At trial, the wife testified that her right to receive a deferred dower is not affected by the cause of the divorce. Id. The wife's expert, an imam, testified that a wife's right to receive the dower was not negated by her filing for divorce. Id. at 247. The husband testified that he believed the deferred dower is forfeited when a wife chooses to divorce her husband. Id. However, the husband also testified that a woman who seeks a divorce is entitled to her dower if she is abused (darar). For a further discussion on this point of Islamic law, see Nasir, supra n. 12, at 25.

39. 666 So.2d at 247. The issue of enforceability of the sadaq as an antenuptial agreement was one of first impression in Florida. See id. “When the husband proposed marriage to the wife, he recognized that she had the right to a sadaq.” Id. Akileh's father expressed to his future son-in law his desire that the sadaq for his daughter be paid in two parts: prompt and deferred. Upon completion of their negotiations, the husband, the wife and the wife's father agreed to a sadaq of $50,001. Id.

40. Id. at 248.

41. Id. at 249.

42. Id. at 248-249. The court went on to say that the husband did not make his unique understanding of the sadaq known to the wife prior to signing the certificate of marriage.

43. Id. at 248.

44. 1995 WL 507388 (N.Y. Sup. Ct. July 10, 1995).

45. Id. at 1.

46. See id. The parties were married in a civil ceremony followed by a religious ceremony. Prior to signing the sadaq, the husband was given an explanation of the Islamic religion and was asked to sign the agreement. Less than a year after marriage, the wife brought a divorce action and requested the court to enforce the terms of the sadaq. Id.

47. Id. at 1-3.

48. Id. at *2. Specifically, this turned on whether the mandates of the Statute of Frauds requiring “the writing to contain all material terms and conditions so that one reading it can understand what the parties have agreed upon” were satisfied. Id.; see also N.Y. Gen. Oblig. Law § 5-701(1). The court determined that the instrument did not define the material terms of the contract, namely “one half interest,” and that the parties did not agree on these material terms. Second, the material terms were not specific enough “so that anyone reading the contract should be able to understand the dictates of the agreement;” because the terms “postponed” and “one half of the possessions” are not defined. Finally, the agreement was “insufficient on its face” because there was no evidence of any agreement by the parties. See id.

49. See e.g. Breitowitz, Plight of Agunah, supra n. 33; Dorff, Elliot & Rosett, Arthur, A Living Tree: The Roots and Growth of Jewish Law (S.U.N.Y. Press 1988)Google Scholar; Barshay, supra n. 25; Greenberg-Kobrin, supra n. 20; Marshall, supra n. 23; Solovy, Jodi M., Student Author, Civil Enforcement of Jewish Marriage and Divorce: Constitutional Accommodation of a Religious Mandate, 45 DePaul L. Rev. 493 (1996)Google Scholar.

50. See e.g. Burns v. Burns, 538 A.2d 438, 440 (N.J. Super. Ct. Ch. Div. 1987) (dismissing the constitutional issues with a few lines and noting that religious faith was not at issue because the husband would have been willing to give a get for an amount of money); Koepell v. Koepell, 138 N.Y.S.2d 366 (Sup. Ct. 1954) (upholding constitutionality of a requirement that defendant husband fulfill an earlier agreement to appear before a rabbinical court).

51. See e.g. In re Marriage of Goldman, 554 N.E.2d 1016 (111. App. Ct. 1990) (stating marriage and divorce are not religious events, but rather contractual in nature); Minkin v. Minkin, 434 A.2d 665 (N.J. Super. Ct. 1981) (holding that giving a get is not a religious act). But see e.g. Victor v. Victor, 866 P.2d 899 (Ariz. Ct. App. 1993) (holding court has no jurisdiction to force husband to give a get); Steinberg v. Steinberg, 1982 WL 2446 (Ohio Ct. App. June 24, 1982) (interpreting clause to obtain a get to be a religious act which would violate the First Amendment).

52. Even if this approach is struck down as unconstitutional, a court could still enforce a prenuptial agreement under the theory of “reasonable accommodation.” See Zorach v Clauson, 343 U.S. 306 (1952). This doctrine allows the government to make exceptions for individuals whose religious beliefs would be violated by a particular government action. See id. Professor Breitowitz posits that the government may remove barriers of religion when such accommodations are reasonable and where strict application of the Free Exercise Clause would result in hardship. The court would be allowed to remove the barrier (caused by the strict application of the Free Exercise Clause) to the extent permissible by the Establishment Clause. See Breitowitz, Plight of Agunah, supra n. 33, at 192-193. Under this view of the “reasonable accommodation” doctrine, certain judicial actions should not constitute compelled specific performance of a religious obligation. See Greenberg-Kobrin, supra n. 20, at 388-389 (arguing that non-enforcement of an agreement to appear before a rabbinical court would result in severe hardship to the spouse who wishes to obtain the divorce and thus judicial action would remove the barrier while preventing the court from enforcing a religious obligation).

53. 204 Cal. App. 3d 1387 (Cal. App. 1988). The husband resided in the United States and the wife in Jordan when the couple married by proxy in Jordan. The wife subsequently joined her husband in California and they married in a civil ceremony. Three years into the marriage, the wife petitioned for dissolution of the marriage. Id. at 1387-1388. The primary issue at trial was the husband's obligation according to the terms of the marriage contract to pay the mahr. The parties disputed regarding the amount of the mahr and its legal effect under Islamic law. Each side's expert witnesses testified regarding a wife's right to the dower where she initiates divorce. The trial court found that under Islamic law, where a wife initiates dissolution of the marriage “she forgoes the dowry,” basing its decision on the testimony of the husband's expert witness. The wife appealed arguing the husband's expert was not qualified and because of the unjust result of the trial court's ruling. Id. at 1388.

54. Id. at 1389.

55. Id. (citing In re Marriage of Higgason, 516 P.2d 289 (Cal. 1973)). Also placed in this category are divorces involving a ketubah (a marriage document which represents the obligations of the husband under Jewish faith to, inter alia, provide for his wife upon divorcing her). Even though the ketubah is a device created to provide economic security for a wife and to prevent discourage divorce (since the husband alone has the right to divorce at will), California courts reject the practice because the “effect … [is] to encourage a dissolution by providing [the] wife with cash and property in the event the marriage failed.” Id. at 1390.

56. Id. at 1390.

57. Courts, such as California, have voided clauses that allow a party “to profit from” or otherwise “encourage” procuring a divorce from their spouse. See Brod, supra n. 10, at 255 (noting that “states currently implement the policy of protecting marriage by refusing to enforce premarital agreements that promote divorce”); see also Davis v. Davis, 1996 WL 456335 (Conn. Super. Ct. July 29, 1996) (finding agreement unenforceable because it gave husband incentive to divorce because his wife would receive $25,000 for each year the couple lived together).

58. It also contradicts the principle of faskh whereby the wife will be entitled to her dower even when she initiates divorce if she can prove darar (harm). See Nasir, supra n. 12, at 126-131.

59. See Siddiqui, supra n. 15, at 17.

60. See id. The wife may lose the dower in the situation where the husband or wife dissolves the marriage before consummation for a reason whereby the husband or wife could lawfully be granted an annulment, for example, when either party chooses to dissolve the marriage upon reaching legal capacity. See id.

61. Professor al-Hibri makes an excellent point and demonstrates the absurdity of this view by stating that one could argue by the same token that Islamic marriage contracts also encourage murder because the wife receives her deferred dower upon the death of her husband. Professor Azizah Y. al-Hibri, Address delivered before the NGO Forum to the Fourth U.N. World Conf. on Women (Huairou, China, Sept. 1996). Ironically, premarital agreements allowing for distribution upon death have long been upheld by the majority of jurisdictions. See supra n. 11 & accompanying text.

62. See generally Swisher, Divorce Planning, supra n. 10.

63. See e.g. Mulford v. Mulford, 320 N.W.2d 470 (Neb. 1982); Duncan v. Duncan, 652 S.W.2d 913 (Term. Ct. App. 1983).

64. See e.g. Reilling v. Reilling, 474 P.2d 327, 328 (Or. 1970) (quoting Clark, Homer H., Law of Domestic Relations 28–29 (W. Publg. 1968)Google Scholar (“The real reason for invalidating such antenuptial contracts seems to be that although the provision may be fair at the time they were made, they may not be later when the separation or divorce occurs. The wife may thus be left with entirely inadequate support, or the husband with an excessively heavy liability to his wife [or vice versa].”).

65. See e.g. Posner v. Posner, 233 So.2d 381, 384 (Fla. 1970); Volid v. Volid, 286 N.E.2d 42, 46 (111. App. Ct. 1972); Unader v. Unader, 506 P.2d 719, 720 (Or. 1973).

66. See e.g. Newman v. Newman, 653 P.2d 728, 732 (Colo. 1982).

67. See supra n. 11.

68. See Cal. Civ. Code § 5203, amended by § 5300 et seq (affecting premarital agreements executed on or after Jan. 1, 1986), and subsequently amended by Fam. Code §§ 1600 et seq. The California code expressly permits parties to a premarital agreement to contract with regards to all of the items in section 3 of UPAA, with the exception of (a) (4) which allows parties to contract regarding “the disposition of property upon separation, marital dissolution, death or the occurrence or non-occurrence of any other event.” This leaves California law silent on the subject of a party's right to agree about modification or elimination of spousal support. Cf. Des Jardins, Robert P. & Haapala, Michael J., State of California: Premarital Agreements and the Waiver of Premarital Support, 40 Orange County L. 36 (12 1998)Google Scholar. When California adopted the UPAA, the legislature did not adopt the section permitting a waiver of spousal support based on the holding of In re Marriage of Dawley, 551 P.2d 323, 329-331 (1976) (holding prenuptial agreement violates public policy if it “encourages or promotes divorce”).

69. UPAA § 3 (a) (8) provides that parties can contract over any aspect of marriage that is not against public policy. Furthermore, the drafters of UPAA assert that it did not change state law, but only clarified it. See id. However, the legislative history behind California's adoption of UPAA makes clear the intent to “allow California case law to continue to prevail on the issue of spousal support in premarital agreements.” See In re Marriage of Pendelton, 72 Cal. Rptr. 2d 840 (Cal. Ct. App. 1998). rev. granted; cf. Des Jardins & Haapala, supra n. 68, at 69 (discussing holding of In re Marriage of Pendleton that premarital agreement provisions waiving spousal support were not unenforceable per se, and stating “It is not unreasonable in today's society for parties contemplating marriage to address the issue of support in the event of dissolution. The [California] practitioner must, however, caution the client that the subject is still unsettled.”

70. See e.g. Cross v. Gross, 464 N.E.2d 500, 506 (Ohio 1984) (holding that a prenuptial agreement could validly deal with alimony and property division and that an agreement would be invalid if it promoted or encouraged profiteering by divorce); see also Premarital & Marital Contracts, supra n. 11, at 7 n. 19.

71. As of 1998, forty-one states and the District of Columbia permit modification of support rights through premarital agreements, including waiver of spousal support rights. See 72 Cal. Rptr.2d at 841. Additionally, courts are becoming more strict about what circumstances will justify non-enforcement of premarital agreements. See e.g. Marsh v. Marsh, 949 S.W.2d 734 (Tex. Ct. App. 1997) (78-year-old man; 58-year-old wife) (husband failed to prove un-conscionability even though he was not represented by counsel and the agreement which was signed shortly before the wedding was one-sided).

72. The legal rationale behind the “public policy rule” may be summarized under two assumptions: (1) antenuptial agreements that contemplate the possibility of divorce promote termination of the marriage and (2) alimony and spousal support are of such public importance that they cannot be left to the parties' contractual control. Those courts which do articulate a rationale behind their public policy pronouncement tend to interpret the rule by a subjective judicial standard, rather than by basing the decision on the actual intent of the parties or the objective terms of the contract. See Swisher, Divorce Planning, supra n. 10, at 176-178.

73. See e.g. Adbal-Haqq, Irshad & Abdal-Haqq, Qadir, Community-Based Arbitration as a Vehicle for Implementing Islamic Law in the United States, 1 J. Islamic L. 61 (1996)Google Scholar. The organization known as Karamah: Muslim Women Lawyers for Human Rights has also been studying means to establish these courts in the near future. Cf. Poulter, Sebastian, The Claim to a Separate Islamic State of Personal Law for British Muslims, in Islamic Farn. L. 147 (Mallat, Chibli & Connors, Jane eds., Graham & Trotman 1990)Google Scholar.

74. While there are no Islamic courts that Muslims can resort to which have the power to enforce marital rights, most states will permit Islamic arbitration committees to decide disputes under Islamic law. See Brooks, Sylvia & Hoover, Felix, Religions Have Rules for Dealing with Divorce, Columbus Dispatch, 06 5, 1998Google Scholar, at 1E, available in 1998 WL 5698309. Islamic tribunals will also provide an effective means of enforcement as shari'a validity of these contracts comes into question.

75. Berger, Michael S. & Lipstadt, Deborah E., Women in Judaism from the Perspective of Human Rights, in Human Rights in Judaism: Cultural, Religious and Political Perspectives 77, 89–111 (Broyde, Michael J. & Witte, John Jr. eds., Jason Aronson Publishers 1998)Google Scholar.

76. Nichols, supra n. 5, at 987.