In his class on Islamic marriage contracts, Mr. Awad offered a thorough overview of family law issues unique to Muslim communities. Shari’a is relevant in American courts either as foreign law or as sources of information that aid the fact finding process. Some of these issues involve the validity of a Muslim marriage contract, and whether it is void or voidable in a U.S. court; whether a foreign divorce decree or a foreign child custody determination can be enforceable under state law; and whether a wife is entitled to her mahr after her husband divorces her.
Shari’a can be treated either as foreign law or as a source for the fact finding process. This can result in courts treating a Muslim marriage contract either as a simple contract or a prenuptial agreement. The requirements of a Muslim marriage satisfy the elements of a simple contract: there must be a meeting of the minds between parties, offer, acceptance, signing of the marriage contract with two witnesses and a publication of the marriage. Many Muslim women do not realize that the bride has significant leeway in setting the terms of the marriage, such as finances, domicile, monogamy, property, and practically anything that is not contrary to the state’s public policy. Mr. Awad asserted that we need to educate Muslim women that it is not shameful to ask and insist on rights and terms in their marriage contract that will protect them in the future.
Mr. Awad also discussed the role of the mahr in family law, and how, contrary to popular opinion, a marriage contract remains valid even without a mahr specified because a court is capable to determine a reasonable amount. While a mahr can be either prompt or postponed, it becomes and remains the property of the wife, distinct and separate from her right to inheritance and alimony. The mahr is not to cover the wife’s necessary expenses, and today the average mahr amount is not enough in making the wife self-sufficient after a divorce. Moreover, at the time of the husband’s death, the mahr is immediately taken off the balance of the estate. This shows how the mahr requirement is preferential to the woman. Mr. Awad also briefly touched on the types of divorces available under Muslim law, which include the talaq (unilateral divorce initiated by the husband), the tafriq (a judicial divorce), and the khul (mutual divorce initiated by the wife). He stressed how Muslim women should always be prepared to to protect themselves in case the husband attempts a “marry-and-dump” abandonment divorce, which is one where the husband files for divorce overseas in a forum more favorable for the man than the U.S. He stated that timing matters when fighting for jurisdiction, and that women should be ready to file for divorce in the U.S. first if she suspects the husband will try to circumvent jurisdiction by filing in a foreign country.
Mr. Awad’s lecture provided our LLSP class with a clear and structured introduction to Muslim family law as applied in the U.S., offering specific examples through case studies. The LLSP class learned that Shari’a family law does not place the woman in a less favorable position, and that it is important to be aware of and insist on their rights as wives and mothers.
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