August 12th, 2022
Islamic Divorce in Maryland: What to Expect
Posted in: Family Law Featured Tagged: Rama Taib-Lopez
Author: Rama Taib-Lopez
Current estimates show about 70,000 Muslims now live in the state of Maryland and many Muslim Americans choose to be married in both an Islamic marriage ceremony and civil ceremony.
Marriage in Islam is a contractual undertaking between the husband and wife and the basic elements of that contract are the “offer” of marriage, the “acceptance” of the marriage proposal, and mahr. The mahr is an agreed upon sum of money or some other economically valuable asset that a husband must give to a wife. The mahr is divided between an immediate gift to the wife and a deferred payment, which the wife is entitled to demand at any time following the marriage but in practice, it typically becomes due upon divorce or the husband’s death.
Because Islamic law does not recognize marital property, a mahr is intended to provide a wife with some financial security in the event of divorce or the husband’s death. The amount of the mahr is agreed upon before or at the time of marriage, akin to a prenuptial agreement.
As some may contemplate divorce, the couple and the courts have had to consider not only concerns over such items as custody, child support and the division of property, but also items unique to Islamic law such as the “talaq” and a mahr.
Talaq
When it comes to divorce, many Muslims are accustomed to using a technique known as talaq or “triple talaq,” in which a husband can divorce his wife by simply repeating the word “talaq” (the Arabic word for divorce) three times to the wife. Although the practice is controversial, and even punishable in recent years in some countries, it has existed for decades and may be encountered in the court system.
In 2008, the Maryland Court of Appeals (the state’s highest court) considered the case of Aleem v. Aleem, which involved the very issue of whether talaq constituted a valid divorce in Maryland. 404 Md. 404, 947 A.2d 489 (2008).
In Aleem v. Aleem, Mr. Irfan Aleem, a Pakistani national, went to the Pakistani Embassy in Washington, D.C. and used the “talaq” method to attempt to divorce his wife, Ms. Farah Aleem.
However, because Islamic law does not provide a spouse any rights in property titled in the other spouse’s name (unless the couple agreed otherwise), Ms. Aleem filed for divorce in Maryland and requested that the Court award her half of her husband’s World Bank pension.
Mr. Aleem argued that the Court should recognize the Pakistani divorce under the principles of comity afforded to judgments of foreign countries. However, the Court of Appeals affirmed that the limitations to the application of comity where the recognition would run contrary to the state’s public policy. In this case recognizing a divorce decree would deny a spouse’s due process of law, contrary to Maryland public policy.
The Court of Appeals concluded that a talaq divorce is contrary to the public policy of Maryland as it deprived Ms. Aleem of any interests she had in marital property, and therefore, declined to give talaq, as it was presented in this case, any comity.
Mahr
The question of whether the mahr provision is enforceable in the courts of Maryland was finally addressed in 2020 when the Court of Special Appeals in Maryland consolidated cases of Nouri v. Dadgar and Ghazirad v. Mojarrad and concluded that courts may enforce mahrs “as secular contracts if they are enforceable under neutral principles of contract law.” 245 Md. App 324 (2020). However, the Court of Special Appeals held that because the mahr is agreed to by the parties in contemplation of marriage, the correct secular standard to be applied is that which governs agreements entered into by parties in what is known as a “confidential relationship,” i.e. a relationship in which one person has confidence in and relies on another. This higher standard is the same standard that is applied to prenuptial agreements.
Standard contracts may only be invalidated for fraud, duress, coercion, mistake, undue influence, a party’s incompetence, unconscionability at the time the contract was entered. Contracts entered into by parties in a confidential relationship are considered under a more stringent standard. The burden shifts to the party seeking to enforce the contract to show an absence of overreaching, i.e. that there was no unfairness or inequity in the result of the agreement or its procurement.
The courts therefore will not need to analyze the mahrs as standard contracts between the parties, they are more appropriately considered under the more stringent standards applied to contracts entered into by parties in a confidentiality relationship.
Quoting an earlier case decision of the Court of Appeals, Cannon v. Cannon, the Court of Special Appeals went on to note that some of the ways a party seeking to enforce the agreement may show the absence of overreaching is by demonstrating that the parties had a “full, frank, and truthful disclosure of his or her assets and their worth” before the agreement is entered into, demonstrating that the attacking party had knowledge of those assets, demonstrating that the agreement was not unfairly disproportionate at the time the agreement was entered, demonstrating that the attacking party had the opportunity to seek legal advice before signing the agreement, or demonstrating that the attacking party voluntarily and knowingly relinquished his or her rights.
What all of this means is that when considering the enforceability of the terms of an Islamic marriage contract, the agreement is going to be reviewed on a case-by-case basis. If enforced, the mahr becomes the wife’s separate property.
Given the complexities of the above and other specifics, it is essential that you consult with a family law attorney to weigh your options before taking any action if you entered into an Islamic marriage contract and are considering moving forward with a divorce.
As a Muslim-American family law attorney, Rama Taib-Lopez, Esq. can guide you through both the cultural and legal issues you may be facing in your family or divorce matter.
