In Islam,a mahr (also transliterated mehir, mehr, meher, mehrieh or mahriyeh) is a mandatory payment, in the form of money or possessions paid or promised to pay by the groom, or by groom’s father, to the bride at the time of marriage, that legally becomes her property. While the mahr is often money, it can also be anything agreed upon by the bride such as jewelry, home goods, furniture, a dwelling or some land. Mahr is typically specified in the marriage contract signed during an Islamic marriage.
There is no Illinois statute or case law that requires enforcement of a mahr in domestic relations court but many lower courts in Illinois have found a mahr to be the equivalent of a prenuptial agreement. As Illinois and Chicago in particular becomes more diverse, I’m sure there will eventually be an official “mahr law” but until then, we have to work around the issue with our existing statutes and case law.
To determine if a mahr is a prenuptial agreement we must first look to the Illinois Statutes.
750 ILCS 10/2, “Definitions as used in this Article: Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
(2) “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
750 ILCS 10/3, “Formalities. A premarital agreement must be in writing and signed by both parties. It is enforceable without consideration.”
750 ILCS 10/5, “Effect of marriage. A premarital agreement becomes effective upon marriage.”
750 ILCS 10/7(a) “A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
(1) that party did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
(i) was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
(ii) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
(iii) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.”
750 ILCS 10/7(c), “An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law”
A court can enforce a mahr as a valid pre-marital agreement if it meets the enforceability requirements set forth in the Illinois Uniform Pre-Marital Agreement Act. While there are not any Illinois cases that establish that Islamic marriage contracts are valid prenuptial agreements, courts from many states have recognized Islamic marriage contracts when they meet the state’s statutory requirements for premarital or antenuptial agreements. For example, in Akileh vs. Elchahal, a Florida court, reflecting on its own statute, held that when the parties agree on the essential terms of the contract, and that agreement is made part of a anteupital contract, in contemplation of a forthcoming marriage, the contract is enforceable. 666 So.2d 248 (1996 Fla. App.)
While Illinois courts have not addressed Islamic marriage contracts, they have upheld premarital contracts from other religious traditions under similar circumstances. See In re Marriage of Goldman, 196 Ill. App.3d 785 (1st Dist. 1990). In Goldman, the appellate court evaluated whether or not a ketubah, a Jewish certificate of marriage, required the husband to later obtain a “get,” a document that a husband must transfer to a wife in order for the divorce to be valid under Jewish law. While neither party was Orthodox at the time of the wedding, the husband requested and the parties signed an Orthodox ketubah which said, specifically, that the parties take eachother to be husband and wife, “according to the law of Moses and Israel.”
At the time of the divorce, the husband refused to obtain the get, making several arguments about why the ketubah wasn’t enforceable. Specifically, he claimed that the terms were too vague to support specific performance because neither divorce nor the specific obligation to secure a “get” was specifically referenced. Additionally, he argued that the agreement was signed immediately before the marriage, without the presence of counsel.
The appellate court in Goldman rejected the husband’s arguments. In that case, the court found that explicit terms were unnecessary because both parties were familiar with what was promised due to their familiarity with the culture. The court discusses how the parties “intended the ketubah to be a contract that the status and validity of the marriage would be governed by Orthodox Jewish law.
Any case involving a mahr is bound to be held to the same standard as the Goldman case. With a mahr, both parties are signing a document that required them to be bound by the regulations of Islamic marital law, just as the parties in Goldman signed a documents requiring them to be bound by Jewish law.
A mahr may not be considered a valid prenuptial agreement where the party obligated to make the payment is unfamiliar with the traditions surrounding the mahr or is coerced to agree at the very last minute (like the day before the wedding). A mahr may also be held invalid if the terms are substantively unfair.
If you have signed a mahr and are now considering divorce in Chicago Cook County, Illinois, you need to find a lawyer familiar with these concepts. Contact my Chicago, Illinois office to learn more.