Mahr and other religious marriage contracts: Enforceable or not?

Recently, the issue of Islamic marriage contracts and other religious marriage contracts was discussed on the State Bar of Michigan Family Law Listserv. These contracts are common, particularly among family-arranged marriages. Essentially, they provide for payment of a small sum of money to the woman if the parties divorce.

Often, there is unequal (or no) bargaining power between the parties. Sometimes, the bride is a teenager whose marriage is arranged by her parents in way that is not usual by Americans standards, but one that is the normal course of family business in Islamic families.  The question then becomes, once a marriage breaks down, should the husband, often the titled owner of everything, walk away with everything? What if it's a long-term marriage? What if the husband is educated and has a high earning capacity and the wife is incapable of supporting herself and the children?   

Religious marriage or divorce contracts usually provide for little more than the payment of a sum of money upon divorce. They may have a profound effect on division of property in divorce cases, then if the husband can keep all of the property, his pension, the house, the business, etc. upon payment of, say, $15,000.

How should the practitioner be thinking about this when faced with the issue? My recommendations are as follows:

(1) Have the wife file the usual generic complaint for divorce and personally serve the husband.

(2) Hope that husband files the usual generic answer to the complaint for divorce.

If a litigant intends to use the terms of the religious divorce agreement to be valid, if sued for divorce, the religious divorce contract must be raised as an affirmative defense or it is waived. See MCR 2.111(F)(3). See also these cases: Deal v Deal, 197 Mich App 739, 741 (1993) (involving an Orthodox Jewish contract); Samman v Samman, Mich App, unpublished (No. 249877, November 9, 2004), lv den 473 Mich 883 (2005) (involving Islamic marriage and divorce contracts).

In the event that the Mahr or other religious contract is plead as an affirmative defense, then I'd raise some of the following arguments: that it was unconscionable, that there was no fair disclosure by husband of his assets, that it was entered into under duress, etc. See the following cases for interesting discussions on the enforceability of prenuptial contracts: Reed v Reed, 265 Mich App 131 (2005), and  to read an informative unpublished case in which the prenup was not enforced, see Trudeau-Chene v Trudeau, (October 26, 2006) Docket No. 260734. Remember, each case is extremely dependent upon its individual and unique factual pattern.

Techorati tags: pre-nuptial agreement, marriage contract