The Islamic Marriage Contract in U.S. Courts
The Legality of the Nikkah and Prenuptial Agreements in America
Jun 30, 2008
Marriage in Islam is not a sacrament, but a covenant. It is solidified when the couple agrees to or signs a legally binding marriage contract, or nikkah.
Although a couple may include highly detailed prenuptial agreements in their marriage contract, cases do arise where a spouse contests the terms agreed upon. How then can American Muslims ensure the legality of the marriage contract at the time of its signing?
Dr. Azizah Y. al-Hibri and a Model Islamic Marriage Contract
For the past twelve years, University of Richmond law professor Azizah Y. al-Hibri has been researching this very issue as part of her efforts to write a book about the Islamic marriage contract. Her manuscript, which provides the basis for a model marriage contract and guidelines on how to make it legally binding in U.S. courts, is almost completed.
"It has taken a very long time to write because the conclusions must be steeped in religious jurisprudence," emphasizes Dr. al-Hibri, who is also president and founder of KARAMAH, a group of women lawyers who advocate women's rights.
"The project started as a book on marriage contracts, but it has mushroomed. It now addresses both the Muslims and the courts, and it presents to them a comprehensive Islamic world view on gender, marriage, family and the status of women."
Islamic Jurisprudence Not Widely Understood
Honoring the terms of a marriage contract is further complicated in U.S. courts, where few Americans — Muslims included — understand the contract's intricate workings and jurisprudence.
Expert witnesses must be well-informed and carefully selected in order not to establish unfair precedents against Muslim marriage contracts in American courts. Dr. al-Hibri points to cases when Muslim expert witnesses, asked to explain the marriage contract, provided an incomplete or erroneous testimony leading to an adverse decision by the court regarding Muslim marriage contracts as a whole.
Dr. al-Hibri hopes that her book will provide the necessary jurisprudential foundation for future expert testimony and court analysis about this subject.
Muslims Themselves Not Educated in Jurisprudence
The Islamic jurisprudence must also be explained to Muslims themselves, many of whom are not well-educated in their own religion.
As example, Dr. al-Hibri notes that many Muslims are unaware that there is a type of divorce which a woman may initiate directly without forfeiting her bridal gift, or mahr. The right to this form of divorce is established by including the stipulation in the marriage contract itself.
This is in contrast to khul, a divorce initiated by the woman which requires that she return her bridal gift to her husband.
Muslim Woman's Rights in Case of Divorce
Dr. al-Hibri's research has led her to conclude that mahr is not the only financial right a woman has in a marriage that dissolves. "I now know," she says, "that under Islamic law there are other financial rights of the women at the time of divorce, but that society and the legal system have either not recognized or not protected these rights, and this needs to change."
But until that time, the model marriage contract, when available, will help ensure that all of the written terms — regardless of their adequacy — are honored.
Related Reading
Interested in learning more about American Muslims and marriage in Islam? Read Islamic Wedding Traditions and American Muslim Statistics.
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