Muslims residing in the State of New York are in a dual situation when it comes to the implementation of family law. On one hand, they are governed by the religious law of Islam, known as Islamic sharia, and on the other hand, the secular family law of the state of New York.
To Muslims, the family law of Islam mandates that marriage and divorce among Muslims should be done in accordance with the Islamic sharia, regardless of whether they live in an Islamic or secular country. Civil divorce decrees obtained by secular courts are not recognized by Islamic sharia.
Under Islamic law, a Muslim man may marry a non-Muslim woman, whereas a Muslim woman is prohibited from marrying non-Muslim man.
Under these rules, a non-Muslim woman marrying a Muslim man in compliance with Islamic sharia is subject to the rules of Islam in the areas of divorce, child custody and inheritance.
In other words, a non-Muslim woman who gets married to a Muslim man in accordance with Islamic sharia, loses custody of her children in case of divorce, or in case the husband dies. Consequently, a non-Muslim woman marrying to a Muslim man is forced, under the rules of Islamic sharia, to surrender custody of her son when he reaches the age of seven, and her daughter at the age of nine. She also prohibited from inheritance. These rules are applied throughout Muslim countries with a system of sharia-based family law in place.
Marriage Contracts in Islamic Sharia
Under the rules of Islamic sharia, the marriage contract should include: (1) names and addresses of the couple; (2) name of the guardian of the bride; (3) names and addresses of two male witnesses; and (4) the amount of ‘mahr’, or a promise of money or its equivalent to be given by the husband to the bride. Like any other civil contracts, Islamic marriage contract should be in the form of offer and acceptance by the parties.
Contrary to the popular notion that mahr is dowry; it is not. A dowry is what the wife contributes to her marriage while mahr is an obligation on the husband to pay his future bride. Others call it a ‘gift’; it is not a ‘gift’ either, because mahr is an obligation on the husband and is mandated by the Quran.
The Quran calls it ‘sadaq’ (Quran 4:4). If no stipulation of mahr is provided in the marriage contract, the marriage remains legal and in effect; in such a situation, the “qadi” (judge) will determine the amount of mahr, which remains a property of the wife alone. The amount of mahr can be paid partially: up-front (Arabic, muqaddam), and deferred until divorce or death of the husband (Arabic, mu’akhar), or it may be prepaid in full before the consummation of the marriage.
Legal Status of the Mahr Provision in Islamic Law
The most important feature of the mahr provision is that one party makes an offer and the other can accept or refuse to accept. It is a financial settlement between the couple in case a divorce occurs or the husband dies. Although, Muslim women do not personally bargain for the mahr agreements, and, in almost all of the divorce cases that I have seen so far, in the Middle East, Europe and the United States, Islamic marriage agreements involving mahr are negotiated by the representative (Arabic Wali) of the bride.
In the State of New York, an Islamic marriage contract involving mahr may be considered premarital agreement for a divorce settlement. In legal terms, this is called a concurrence of wills or meeting of the minds of the future husband and his future wife. This also means that each party from an objective perspective engaged in conduct manifesting their acceptance, and a contract was formed when both parties met such a requirement.