A Student Note: Religious Marriage Contracts: Judicial Enforcement of "Mahr" Agreements in American Courts

Abstract

During the latter part of the twentieth century, Islamic law or shari'a has had an increasingly practical influence on the types of cases adjudicated in American courts. As the Muslim population continues to grow, the American legal system will inevitably face interesting, complex family law questions that are intertwined with Islamic law. While religious denominations have a genuine and continuing interest in marriage and its rights and obligations, religious laws are clearly subordinate to state secular law. A religious marriage is valid only to the extent that it complies with a state's statutory requirements. Likewise, state statutes regulate divorce and designate specific state courts as the forum for the divorce proceeding. Since marriage and divorce are controlled by secular state law, it is insufficient for Muslims to adhere solely to the shari'a on these matters. However, as the state continues to cede some of its traditional authority in favor of increased private ordering of the institution of marriage, religious adherents are looking to contracts as a means to abide by religious precepts and secular law. These contracts provide methods whereby “parties agree to internal (religious law) resolutions of marital disputes, but the agreement itself is enforceable by the external authorities.”

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