In this piece, I’ll try to provide a short essay defining the Mahr, its purpose, its implication and an Ohio court ruling on the enforceability of Islamic marriage contracts.
It should be noted first that an “Islamic” marriage is not an act of worship; it is just a civil contract. In Ohio we say “Islamic” marriage to indicate that the couple being married is Muslim (or at least the husband is Muslim). But the document signed by the bride, the groom, the witnesses and the Imam (the authorized person officiating the marriage) is simply called “Marriage Contract” and should be treated as such.
Definition of Mahr.
Mahr, also called Sadaq or dowry, is what the groom gives his bride at the signing of the Islamic marriage contract. It’s one of the requirements for a valid marriage. It can be in different forms: money, jewelry, livestock, real estate, etc., but it is always something of value, and symbolizes the man’s respect for the woman and his intention to provide for her. Islam does not specify the amount or the form of the dowry. It varies from country to country and from culture to culture. (I have written contracts with Mahrs as low as $100 and as high as $50,000 and had one that offered a truck and another that offered camels.) Other gifts exchanged during the engagement or even after the marriage are normally not part of the Mahr unless otherwise specified.
Purpose of Mahr.
Mahr is an Islamic requirement, among others, for a valid marriage contract. Given by the groom to the bride, it shows that:
1) The woman is being sought. (Like here in the USA, where women traditionally wait for men to propose.)
2) The woman has the right to ownership. Not only is the man accepting this right, but he is also empowering his wife to have her own wealth and handle it herself. The Mahr goes to the woman, not to her father or any other family member.
Please note that this right was given to the woman more than 1400 years ago. Until recently women were themselves the property of their husbands in the western societies. In some places in the Muslim world, the bride’s father has grabbed the Mahr from his daughter with the excuse of managing it for her and an insistence that she is irresponsible or incapable of handling it herself. This is not according to the traditions of Islam and one wonders how poorly the father raised his daughter if she is so irresponsible. Actually, the custom probably arises from places where, before Islam, fathers used to get a ‘bride price’ for their daughters and, after the region converted to Islam, fathers wanted a way to continue getting the money, so they made excuses.
3) The man is and will be financially responsible for his wife and the children.
Advanced and postponed Mahr. 3) The man is and will be financially responsible for his wife and the children.
In principle and preferably Mahr should be given, in its entirety, to the bride before consummating the marriage. Over time it became customary in many places to give part of the Mahr (advanced part) at the signing of the marriage contract with a promise to give the remaining part (postponed part) at a later date.
The marriage contract is a negotiated written agreement between the man and the woman that can include any details in their agreement to become married. A clear description of the Mahr should always be included. Frequently the marriage contract will have the language: “the postponed part of the Mahr will become due to the wife when either a divorce or the death of the husband occurs”. Other contracts may stipulate that the Mahr is due upon request or any other mutually agreed upon terms.
Frequently the postponed part becomes due many, many years (20, 30 or even more years) after the marriage took place. Except for possibly gold, if described in weight, most monetary amounts can lose their buying power, due to inflation, after all these years, leaving the postponed Mahr with almost no value. Attention should be paid to this point when the contract is written.
Divorce and Mahr.
Often Mahr, especially the postponed, becomes one of the major points of contention between husband and wife going through a divorce. This becomes an even bigger problem if the woman files for the divorce, since there is a general confusion among people that in this case the woman has to waive her right to her Mahr. If this were true, all that a man would have to do would be to make his wife’s life miserable to the point where she asks for divorce. Then he could free himself of her and get the Mahr back, or avoid having to pay her the postponed Mahr. Such a practice is prohibited in Islam; Allah S.W.T said:
“ And when you divorce your wives and they approach the end of their appointed period, then either retain them in a becoming manner; or send them away in a becoming manner; but retain them not wrongfully so that you may transgress. And who so does that, surely wrongs his own soul” [2:231]
“….and harass them not that you may create hardships for them” [65:6]
“And if you desire to take one wife in place of another and you have given one of them a treasure, take not aught there from. Will you take it by lying and with manifest sinfulness?” [4:20]When a woman wants a divorce today she goes to a judge, an impartial authority, who investigates the circumstances and decides the issue. There are situations where the wife is required to forfeit all or part of the postponed Mahr and/or return the advanced Mahr as part of a divorce settlement. It depends on the reasons for the divorce. Where the husband has been abusive or neglectful of his responsibilities, he does not have the right to take his wife’s property in exchange for her freedom from him. Unfortunately most couples refuse to go to the judge and binding arbitration for these issues even though the Quran says:
“And if you fear a breach between them, then appoint an arbiter from his folk and an orbiter from her folk. If they (the arbiters) desire reconciliation, Allah will affect it between them. Surely, Allah is All-Knowing, All-Aware.” [4:36]
Spousal Support and Mahr.
Spousal Support and Mahr.
Another general confusion among people is the false idea that, in the case of divorce, the Mahr is the only thing the wife “may be” entitled to. You find a wife spent years and years of her life supporting (financially and otherwise) a husband while he is going to medical school and/or sponsoring his American citizenship, then a divorce takes place and the husband thinks that all that he owes her is the postponed Mahr of 2000 rupees (about $50) written decades ago. This is wrong. The wife is entitled to an equitable spousal support determined by a judge in a court of law. Allah S.W.T said:
“For divorced women is a suitable Gift. This is a duty on the righteous” [2:241]
Enforceability of Islamic Marriage Contract.
While courts in other states have enforced Mahr or dowry provisions in Islamic marriage contracts, no case in Ohio holding similarly can be found. To the contrary in a recent Ohio case involving a Muslim couple, the court refused to enforce the Mahr provision.
Fulanah Al Fulanyyah (the wife in this case) argued that the Islamic marriage contract should be enforced as an ante- [pre-] nuptial agreement. Fulan Al Fulani (the husband in this case) countered that the Islamic marriage contract could not be enforced because to do so would be a violation of the First Amendment of the United States Constitution and the Ohio Constitution. Contracts in Ohio cannot be made to force someone to obey a religious requirement. So the State does not get into the obligation of enforcing religious rules of different churches or other religious organizations. Fulan argued that he signed the contract under pressure the day of the marriage and didn’t really know or understand what he was signing. I was there at the contract negotiations with the couple and their families and I bear witness that Fulan knew exactly what he was doing and what he was signing, but love of money over Allah can make people into liars. As you see some men are willing to say anything to run away from their religious obligations. What does the USA Constitution have to do with a few thousand dollars owed to the wife?
The judge, in her ruling on the case, wrote “Furthermore, even if enforcement was not prohibited on constitutional grounds, the Islamic marriage contract fails to meet the requirements of a valid antenuptial agreement”
Then the judge wrote “Based on the holding in Steinberg and the consideration of other policy concerns, this court finds the Mahr provision in the Islamic marriage contract is unenforceable in an Ohio court.
Nonetheless, the court stresses that [Fulan’s, the husband’s] testimony that he did not believe the Mahr provision was anything more than ink on paper was not credible.” [Steinberg v. Steinberg (6/24/82) was a previous case concerning forcing compliance with religious obligation.]
The Judge also wrote “Although not enforceable by this court, the court is hopeful [Fulanah] will be able to enforce the provision and obtain relief through other religious means.”
In the end this is what is going to happen as the Prophet PBUH said,
”The claimants would get their claims on the day of Resurrection so much so that the hornless sheep would get its claim from the horned sheep (in reference to the harm caused by horned sheep to hornless sheep).”
So either you pay it in this life or you will pay it in the hereafter.
Recommendations.In regard to the Mahr provision I make the following recommendations:
1) The bride should ask for all of her Mahr prior to consummating the marriage. If this is impossible (like in most cases) then:
2) Consult with an attorney to supplement the Islamic marriage contract with a legal instrument, enforceable in Ohio courts, pertaining to the Mahr. This becomes more important when the postponed Mahr is great in value.
3) In case of a contested divorce, to resolve exclusively the Mahr contention, I recommend accepting binding arbitration (which could be enforceable in a court of law).
If you believe that you are right about how the Mahr should be dealt with in divorce, then you should not be afraid of arbitration. If you don’t get the outcome you believe you are entitled to, then either educate yourself better to understand how you are wrong, or accept that Allah knows the truth and will compensate you elsewhere, either in this life or the Hereafter, accept the decision of others and move on with your life.
