This application and non-execution has produced devastating results for financially dependent Muslim women during the distribution of property and the spousal support process. [vi] This devastation usually takes place in two ways. First, when the courts interpret the Mahr as a marriage contract, the wife receives only what was promised to her in the Mahr contract, to the exclusion of all other matrimonial property and potential alimony available to her under her State`s fair distribution and maintenance agreements. [vii] Second, when courts interpret the document as a civil contract based on the fundamental principles of treaties, they often conclude that the interpretation of unknown religious concepts amounts to a religious entanglement that excludes application under the First Amendment. As a result, the woman receives nothing from the money or property promised to her in the agreement. This approach is particularly detrimental to Muslim women who enter into their marriage contracts abroad and do not expect their agreements to be interpreted in accordance with U.S. customary law. In Islam, marriage is considered both a social agreement and a legal contract. In modern times, the marriage contract is signed in the presence of an Islamic judge, an imam or an elder of the trusted community who is familiar with Islamic law. The process of signing a contract is usually a private matter involving only the immediate families of the bride and groom. The contract itself is known as Nikah. Provisions that may be included in the marriage contract include the abandonment or requirement of certain responsibilities.

[4] The contract can also be used to regulate the couple`s physical relationship if necessary. [Citation needed] [ii] Most Muslims who marry according to Islamic tradition perform marriage contracts, whether they live in the United States or abroad. See Richard Freeland, The Islamic Institution of Mahr and American Law, 4 Gonz. J. Int`l L. 2 (2001). Courts should also maximize the interpretative benefits of contracts and analyze Mahr agreements according to neutral legal principles. As the courts of several jurisdictions have concluded, a contract for the payment of money is nevertheless a contract simply because it was concluded at the time of an Islamic wedding ceremony. [x] The fact that the document exists only according to religious doctrine is irrelevant; The neutral legal principles approach should apply in order to give effect to such agreements. Although this analysis is becoming the norm, its application varies. As marriage season fast approaches, American Muslim couples should be aware that the courts are very inconsistent in whether or not to apply Mahr Islamic agreements, and that these agreements are increasingly analyzed strictly according to basic contractual principles that require clear expressions of offer, acceptance, and consideration.

[i] See Wael B. Hallaq, Sharia: Theory, Practice, Transformation 271 (2009) (explanation that in the Christian tradition, the ceremony of marriage is a sacrament that strengthens husband and wife as husband and wife). According to Islam, men and women have rights to each other when entering into a marriage contract,[41] with the husband serving most of the time by his means as protector and breadwinner of the family. [Quran 4:34] This guardianship has two aspects for both partners: the notable example of this is the Hanafi school (the largest of the four classical schools of Islamic thought), which states that a bride`s permission is required when she has reached puberty. They also note that if a bride was forced to marry before reaching puberty, after reaching puberty, she has the option to cancel the marriage if she wishes. A Wali other than the father or grandfather on the father`s side of the bride, then called Wali Mukhtar, requires the consent of the bride, according to the majority of scholars. If the bride is silent on the subject, that is, her Wali expressed his intention to marry her to a certain man, and she had nothing against it; then the approval of their absence of objection is assumed. [58] The Qur`an tells believers that even if they are poor, they must marry to protect themselves from immorality.[25] [Quran 24:33] The Qur`an states that marriage is a legitimate way to satisfy sexual desire.

[26] Islam recognizes the value of sex and camaraderie and advocates marriage as the foundation of families and channels the satisfaction of a lesser need. Marriage is highly valued and considered half of the faith, according to a saying by Muhammad. The question of whether marriage is compulsory or simply permissible has been studied by several scholars and has agreed that “if a person has the means to marry and is not afraid to abuse his wife or commit harm when she marries, then marriage in his case is mustahabb (preferred).” [27] If the conditions are met and a mahr and a contract have been agreed, an Islamic marriage or marriage can take place. The marriage contract is also often signed by the bride. The consent of the bride is mandatory. The Islamic marriage is then publicly announced in iʿlān (Arabic: إِعْلَان) by a responsible person after giving a sermon to advise and lead the couple. It is not necessary, although common, that the person who marries the couple is religiously well-founded on knowledge. The husband can preach the sermon even in the presence of representatives on both sides if he is religiously educated, as told in the story of Imam Muhammad bin Ali around 829 AD. This is usually followed by a festive reception in accordance with the couple`s customs or local customs, which may last a few hours or precede the wedding and end a few days after the ceremony. What non-Muslim couples negotiate in their marriage contracts is very different in content from what Muslim couples negotiate in their Mahr contracts.

In the United States, prenuptial arrangements are generally used to protect the property and income of a wealthy spouse from the claims of a dependent spouse in the event of divorce. [viii] In this context, the dependent spouse knowingly negotiates the rights he or she may have under the laws on the equitable distribution and maintenance of the spouse of his or her State. In contrast, when Muslim couples negotiate the terms of the Mahr agreement, the wife, as a dependent party, never intends to waive any other separate property or maintenance claims. .