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Islamic Marriage Contract Upheld

Pact found to meet 'neutral principles of law'

By Jim Edwards
Source: New Jersey Law Journal
July 1st, 2002

Awad Abed represented Houida Saada in the case
Abed Awad represented Houida Saadeh in the New Jersey case.
image: Carmen Natale

In New Jersey's first substantive decision on Islamic Law, a Passaic County judge ruled last Monday that a religious, dowry-style contract signed by two Muslims at their marriage is enforceable upon their divorce.

Superior Court Judge John Selser enforced the "mahr" (MAH-her) that H. Saadeh and her husband Zuhair Odatalla signed on their wedding day, finding that aspects of the religious code were acceptable under "neutral principles of law." Odatalla v. Odatalla, FM-000366-01.

The agreement called for an "Islamic Law Dower" of one golden pound coin and $10,000 in U.S. dollars "postponed." In Islamic Law, the postponed portion of a mahr is usually payable after a set time period, the death of the husband or divorce.

Selser noted that in addition to the mahr notation on the Islamic marriage license, the negotiations between the two families before its signing had been videotaped as part of the ceremony, and two witnesses signed the agreement.

Such a detailed record allowed Selser to conclude, "All of the essential elements of a contract are present. . . . the Mahr Agreement in the case at bar is nothing more and nothing less than a simple contract between two consenting adults."

The ruling, which took Selser two and a half months to write, also indulges in a fair amount of dicta about New Jersey's changing demographics. Selser wrote that "the challenge faced by our courts today is in keeping abreast of the evolution of our community from a mostly homogenous group of religiously and ethnically similar members, to today's diverse community. The United States has experienced a significant immigration of diverse people from Japan, China, Korea, the Middle East, South America; who are Catholics, Jews, Muslims, Bhuddists to name a few. Can our constitutional principles keep abreast of these changes in the fabric of our community?"

Clifton solo practitioner Abed Awad, who represented the plaintiff wife, hails the ruling as a breakthrough. "It essentially sets the stage for Islamic mahr agreements to be considered valid contractual obligations which are enforceable. And this particular ruling is the most consistent with Islamic Law."

In other jurisdictions, courts have treated mahr agreements to a mixed reaction. New York and Florida have recognized them, but California has struck them down as against public policy.

The husband's lawyer, Thomas Raimondi of Afflitto, Raimondi & Afflitto in Wayne, had argued that enforcing the mahr would violate the First Amendment's prohibition against establishment of religion by the state.

Selser's decision "is of no consequence for New Jersey's divorce laws," he says. "Since the judge took the mahr agreement and treated it as a contract rather than a religious custom, the issue of church and state has been removed from the issue."

Raimondi and his client have not decided whether to appeal.

Legally significant or not, the decision will have some interesting consequences for New Jersey Muslims, Muslim lawyers say.

Awad notes that the ruling gives Islamic clerics court-ordered clout. "I think it will be welcomed in the Muslim community, mainly by women from our community, as they have been accustomed to seeking the intervention of the religious cleric, or the imam in the mosque, who may well order the husband to pay the mahr agreement. But his obligation to pay is an ethical and moral obligation, with no enforcement mechanism.

"So many poor women can't go and ask for [their mahr]. I have one case where a husband would not give her a divorce unless she gave it up. It's just not fair," Awad says.

Adds Sohail Mohammed, another Clifton solo practitioner, "It's going to go a long way in the community, especially for the imams. They needed some sort of assurance or guidance . . . [it] basically forecloses any dispute or challenge later on. So from the beginning it's going provide teeth for the imam. . . . What argument will [errant husbands] have to say, 'we didn't think this was the law or public policy?' That argument is shot now."

Awad notes that Selser ruled on the mahr separately from the equitable distribution of the couple's assets and debts. "The most significant aspect of this decision is that unlike New York or Florida and other jurisdictions that incorrectly construed the mahr agreement as a prenup, Judge Selser's interpretation of the mahr agreement is the most consistent with Islamic law," he says.

Selser's ruling actually makes no statement on whether a mahr is a prenuptial agreement, leaving that question to be raised in future cases.

"It's simply avoiding the issue that it's going to have to address in the future. It's going to lead the court right back to the same situation, which is to enforce it as a prenup. I think the court took the easy route," says Hamdi Rifai of Rifai & Associates in Newark. Wives "shouldn't be entitled to some sort of additional amount as some sort of side-agreement. If at all, it should function like a prenup.

"I personally disagree with the opinion because oftentimes these are not negotiated agreements," Rifai adds.

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