Agreements between spouses, or those who are betrothed, are to be considered by judges as any other contracts, and can be subject to enforcement by the courts. Such are the cases with agreements under Islamic law, commonly referred to as “Mahr” agreements. In a recent case, the court affirmed that such an agreement can be enforceable in a New Jersey court within a divorce action. In Rahman v. Hossain, the parties had been married under Islamic law, and under the parties’ customs, an amount had been paid to the then- to- be married wife as an initial payment of “sadiq” or “mahr” by the husband. Usually, a “mahr-” agreement is negotiated between the parties to a marriage and their families, often with the assistance of a religious leader. Both parties then sign the agreement and it becomes a part of their religious marriage license. Many times, there are conditions for payment included is the agreement.
In the Rahman case, the parties were initially from Bangladesh were web in an arranged marriage. The husband argued that he should be entitled to the return of a $12,500 payment of sadaq that he had made to his wife. His expert testified that under Islamic law, retention of the payment was contingent upon neither party having fault that leads to the termination of the marriage. In this matter, after hearing the testimony of the husband, the court found that the wife was at fault for the termination of the marriage and ordered the return of the payment that had been made to her. In affirming the award, the Appellate Division noted the authority of the courts to enforce contracts which have been made under religious law.
This case serves as a reminder that parties are permitted to seek enforcement of contracts which have been entered into within the context of their religious customs. Generally, so long as a contract can be found to have been entered into freely and voluntarily, with consideration ( a payment of some type ) having been given for goods or services ( which are legal under secular law), the courts will enforce it. Additionally, this case serves as a reminder that all issues must be fully discussed with an attorney prior to filing for the divorce. The majority of divorce cases in New Jersey are routinely filed as “no-fault” cases. In this matter, the return of the payment was specifically based upon a finding of the wife’s fault in the demise of the relationship.