Here’s another interesting post from Volokh Conspiracy about the intersection of US law and Islamic contracts. The case involves a dowry contract in the state of Washington. The US court decided that they would treat this contract (which typically does not exist in the US) as it would any other contract. It does not ignore the Islamic nature of the contract so much as say that it’s immaterial to the issue of contracts. I agree with Dr. Volokh that this is the way it should be handled…
Islamic Agreements in Civil Courts
Eugene VolokhObaidi v. Qayoum (Wash. Ct. App. Feb. 23, 2010)“> is a good example of what has long struck me as the right way of dealing with this problem: If possible, treat the agreements as normal agreements, without regard to their Islamic character, and then enforce them — or not — as normal agreements. Here’s an excerpt from the decision:
A mahr is a prenuptial agreement based on Islamic law that provides an immediate and long-term dowry to the wife. Husna Obaidi and Khalid Qayoum, both children of Afghan immigrants, signed a mahr agreement written in Farsi during an engagement ceremony known as a Nikkah ceremony. Mr. Qayoum, who does not speak, read, or write Farsi, did not know about the mahr until 15 minutes before he signed it. An uncle explained the mahr to Mr. Qayoum after he had signed it. After a 13-month marriage, Ms. Obaidi filed a petition for dissolution of the marriage. Ms. Obaidi asserts that the mahr requires Mr. Qayoum to pay her $20,000 upon divorce….
[W]e can resolve this case by using these neutral principles of law, not Islamic beliefs or policies….
Mr. Qayoum asserts the mahr agreement was invalid under contract law. We agree. … For a valid contract to exist, there must be mutual assent, offer, acceptance, and consideration. Here, there was no meeting of the minds on the essential terms of the agreement. There were only two terms in the written mahr:
Short term marriage portion: One hundred Canadian Dollars
Long term marriage portion: 20,000.00 DollarsThere was no term promising to pay and no term explaining why or when the $20,000 would be paid.
A valid contract requires a meeting of the minds on the essential terms. Mr. Qayoum was not told that he would be required to participate in a ceremony that would include the signing of a mahr until 15 minutes before he signed the mahr. Here, Mr. Qayoum was unaware of the terms of the agreement until they were explained to him by an uncle after the mahr had been signed….
Makes sense to me.
UPDATE: I expanded the block quote a bit, to mention the terms of the mahr and the court’s discussion of the absence of a term promising to pay.
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February:26:2010 - 14:59
I find it VERY hard to believe that Mr. Quayoum didn’t know there would be a mahr agreement in a marriage. It’s ALWAYS part of the marriage.
I do agree these should be treated simply as contracts- but I think he did know what he was signing. I am also puzzled as to why this document would be in Farsi for Afghan immigrants to Canada. There’s a lot that doesn’t make sense.
February:26:2010 - 15:26
I think we can assume safely that this family got into Canada, and then the US, on refugee visas. That does not require much in the way of education. In fact, I wouldn’t be surprised if he were nearly illiterate. That also leads to the possibility that the guy is utterly clueless about life in general. Dari, one of the languages of Afghanistan, is also called ‘Eastern Dialect’ of Farsi. There could be some inaccuracy in the news story.
February:26:2010 - 15:30
I think you must be right. Well, a lesson for both bride and groom, and whoever organized the “contract”.
February:28:2010 - 03:51
First,
Nikah is marriage, not engagement.
Second, Signing of Mahr contract before marriage ceremony is an essential condition for the Nikah to be regarded as valid.
The usual process is that the person who gets the signature of the bride and the groom on this document (usually a cleric or a senior relative), reads out the terms of the Mahr – amount to be paid, time when it should be paid, mode of payment – that is, whether in instalments or at once and when the instalments are due. This is read out to the bride and the groom separately (since they usually sit separately) and each of them has to agree to the terms of this contrct by verbally expressing their consent to their marriage on the basis of this Mahr contract.
The marriage is valid only if both of them verbally express their consent to the terms of contract and sign on the doccument thereby. Without this a Muslim marriage is not valid.
There is no formal education required for a Muslim to know all this. Every single Muslim knows this essential procedure of the Muslim marriage.
It is absolutely impossible that this Afghan didn’t know – 1) that he had to sign on this contract before marriage ceremony, 2) that there was an amount of Mahr to be paid at some point in marriage or at the time of divorce, 3) How much he had to pay and in what mode and 4) He didn’t consent to it.
Without these 4 conditions, his marriage couldn’t have been valid.
In all probability, he thinks the US court is not aware of the Islamic marriage procedure and hence, he can get away with it by feigning ignorance of the contract.
In other words, he is taking the US court for a ride.
John,
You are right. Dari is very close to Persian and Pushto, another language of Afghanistan, also borrows many words from Persian. In any case, the contract would have been explained to him before the marriage ceremony.
Of course, the US court’s step to treat this contract as any civil contract is right, but they should also familiarise themselves with the internal dynamics of the ways in which Muslim marriages take place, if they are accepting Muslim refugees in their contry.
This man couldn’t have argued like this before an Indian court, because Indian courts understand their procedures.
February:28:2010 - 08:18
Mr. Qayoum, who does not speak, read, or write Farsi, did not know about the mahr until 15 minutes before he signed it. An uncle explained the mahr to Mr. Qayoum after he had signed it.
IE the man knew about mahrs, but didn’t know he would be signing one until 15 minutes before he did, and did so in a language he doesn’t understand. That in itself is enough to void the contract ie the language. American law rightly treats this as a pre-nup agreement and in this particular pre-nup the conditions are set in part by Islamic principles so the conditions don’t need to be treated separately as Islamic or not.
I know of Moroccans ambushed by a marriage contract at the time of signing ie the FIL added in a clause (a major one) as the groom was about to sign publicly with both family elders present. eg long prior to the ceremony a man agreed with his FIL that the woman would work; during the ceremony the FIL announced that her full salary would go to him. The man signed to save face, his and the FILs, and it caused a permanent rift in the family. The woman works and lives with her husband with whom she has a daughter. The husband treats her and the child well, but does not attend her family’s functions with them.
By the way the article is written it seems the US courts are well aware of Muslim marriage contracts and have decided the best category within their legal system with which to deal with them.
I am sure they are as competent in their own legal system and adapting it as the Indian system is with theirs. Unless of course Daisy wants to provide evidence with references and links to the contrary.
February:28:2010 - 08:55
Daisy, the court argued that the ‘dynamics of Muslim marriage’ were exactly what it sought to avoid. Were it to become involved, it would take a role in deciding religious issues, perhaps only minor ones, but issues for which it wants no role whatsoever. Today, a Muslim marriage contract; tomorrow, a Shinto baptismal certificate; the next day, who is ‘really a Jew’ for inheritance purposes.
On this specific contract, the decision indicates that the groom was presented papers to sign hours (if not only minutes) before the ceremony. That is inadequate time, the court said, for him to have fully understood the terms of the contract, no matter his culture, education, or anything else. Essentially, the court was saying that he should have had at least a few days to consider the contract before being obliged to sign it.
February:28:2010 - 10:09
John,
The papers are presented during the marriage ceremony, but the terms of contracts are negotiated in advance for days, sometimes for weeks or even months. No Muslim man will come for marriage if the terms of the contract are not settled well in advance. He is involved in the negotiations and has to agree to the contractual terms before the marriage is arranged.
The papers are not just presented before him for signing – they are read out aloud by the person getting them signed. The groom is supposed to give a verbal consent (three times in India) before signing on the papers. He will not consent if he doesn’t understand what is being read, because he knows fully well this is matter of money that he is supposed to pay.
But this is only a formal consent – in reality he has already negotiated the contract well in advance before the ceremony and he knows fully well what is coming during the marriage ceremony.
It’s not as if the papers are thrust before him just before the ceremony and he has to sign without knowing what is written there.
Same goes for the bride. her father or elder relatives negotiate with the groom-to-be for a considerable time before the actual wedding day and she knows very well how much Mahr has been settled for her. In more advanced families she is even consulted on this during negotiations and has to agree before her family finalises the match.
Again, at the time of marriage, the papers are read out aloud and she has to give verbal consent three times before signing. But again, this is only a formal consent. She knows about the terms of the contract well in advance.
It’s simply not possible that the man didn’t know the terms of the contract before marriage.
February:28:2010 - 10:36
According to the court documents, the process you describe was not followed in this case. I can easily imagine a young man, not too bright, eager for the benefits of marriage, not at all focusing on the terms of a contract.
February:28:2010 - 11:11
If this procedure was not followed, then his marriage itself was not valid. He should be prosecuted for indulging in fraudulent practice regarding marriage.
February:28:2010 - 11:57
Of course all this highlights why the US avoids getting into the religiousity of it, and sticks to it’s own laws on whether or not it constitutes a binding contract or not. Eventually, people will learn to make sure their procedures are in alignment with the legal authorities, in case they want to later involve those same legal authorities to enforce the terms of a contract.
Of course the above poster’s description of a Muslim marriage, is not a definitive description of how a valid Muslim marriage must take place- but apparently a cultural adaptation of it.
However, I still supsect that there is more to the original story than the article explains. Even if the guy was illiterate, one would expect the contract to be in the language in which he speaks or the language of the country in which he is residing. Either way, the bride is the one who should be careful in these matters. If she wants to be able to collect when necessary.
February:28:2010 - 12:03
I generally recommend that anyone marrying into a different culture take a long, hard look at what that means for his/her rights and duties. Even close cultures are not the same and the further apart the cultures, the greater the legal ramifications. While State Dept. does offer warnings, it has no way of insisting that people take those warnings seriously.
February:28:2010 - 20:12
It is the duty of a Muslim man to settle the Mahr amount before marriage. Without this a Nikah is not valid. That’s why this elaborate procedure has been evolved in arranged Muslim marriages. In case of a match decided by the couples themselves, usually the Mahr is condoned by the bride, so there is no Mahr involved in reality. But this is also written down in the contract.
The woman usually doesn’t have much say in these negotiations in arranged marriages, unless she is from very educated and advanced family. So she can’t ensure anything. But she definitely knows how the negotiations are taking place. She can’t say later that she didn’t know or she didn’t consent at the time of marriage. But she can say she was forced into consenting against her will.
With a man it’s different because he is involved in the negotiations himself.
The actual forms of negotiations of Mahr may differ culturally, but the procedure has to take place before the marriage ceremony – this is stipulated by Islam and can’t be transgressed.
That’s why this man’s argument is ridiculous. Things don’t happen that way.
John,
I quite like your romantic imagination of a young man eager to marry and not bothering about terms of contract, even if he is bright. If only there were such men in abundance in developing countries!
I do agree that the US will have to deal with much less trouble if it sticks to its civil laws in matters of immigrants and refugees.