In an Islamic wedding, the mahr is a required part of an Islamic marriage contract. The mahr is a gift of money, property or possessions made by the husband to the wife. A mahr can be given to the bride at the time of marriage or it can be deferred to be paid at a later date, usually in the event of divorce. In this article, we will address how the deferred mahr has been and may be treated by Texas courts in divorces.
There is only one appellate case in Texas that deals with deferred mahr, Ahmed v. Ahmed. In this case, the trial court granted the parties a divorce and awarded the wife $50,000.00 based on the deferred mahr in the parties' Islamic marriage certificate. The trial court ruled that the parties' deferred mahr was a valid pre-marital property agreement. The mahr stated that the parties, "have been united...in matrimony as husband and wife against a Mahr of $50,000.00 of which prompt payment is nil and deferred payment is $50,000.00." The husband appealed the ruling, arguing that the deferred mahr could not be a pre-marital agreement because the parties had had a civil ceremony prior to the religious ceremony during which the marriage certificate containing the deferred mahr was signed. The court of appeals agreed with the husband and ruled that the deferred mahr could not be a pre-marital property agreement in this case because the parties had already been married before signing the marriage certificate. The court also decided, based on the evidence available, that it could not determine whether the deferred mahr could be a valid post-marital property agreement.
Ahmed v. Ahmed is of some help in understanding how deferred mahr is treated in Texas divorce courts. However, it leaves many unanswered questions. Can a deferred mahr be a valid pre-marital property agreement? Can a deferred mahr be a valid post-marital property agreement? There are no cases that answer these questions, so any attempt at coming up with an answer is an educated guess. That being said, let's address these questions.
For a deferred mahr to be a pre-marital property agreement, it needs to be in writing, signed and entered into prior to marriage. If the mahr is contained within the marriage certificate, does that mean it is entered into at the time of marriage? The answer will depend on at what point in the marriage ceremony are the couple considered married, and is that point prior to the signing of the marriage certificate? If a couple is considered married before or during the signing of the marriage certificate, then it can be argued that the mahr cannot be a pre-marital agreement. If a couple is considered married after the signing of the marriage certificate, then it can be argued that the mahr can be a pre-marital agreement.
For a mahr to be a post-marital property agreement, the mahr needs to partition or exchange the married couples' community property. (For an explanation of community property, visit our Frequently Asked Questions section). By way example, the mahr in Ahmed v. Ahmed was not phrased in a way that the appellate court could definitively say that it was partitioning the couple's community property. In Ahmed v. Ahmed, the mahr made no mention of community property. So for a mahr to be a valid post-marital property agreement, it may help to have the language of the mahr mimic the language in standard post-marital property agreements in Texas. However, if that's possible under Islamic law is beyond the scope of this article.
Finally, pre-marital and post-marital agreements are not enforceable if the party challenging the agreement can prove that: (1) the agreement was unconscionable; (2) there was no disclosure or written waiver of disclosure of the property or financial obligations of the other party; and (3) the challenging party did not have and reasonably couldn't have had knowledge of the property or financial obligations of the other party. So if the groom and bride sign the marriage certificate without knowing fully about the other's finances, then even if a court decides that the deferred mahr is a valid pre-marital agreement or post-marital agreement, the court may not enforce it if the court believes the deferred mahr is unconscionable.