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Are the Mahr Provisions in Islamic Marriage Contracts Enforceable in Georgia Divorce Cases?

Love knows no bounds and as a result, neither does family law. Family law issues frequently cross state and even international boundaries. Shaw Law Firm understands many of the delicate issues that arise when divorce or custody issues cross international lines, and are adept at handling them fairly for their clients. One such issue: in the case of Islamic marriages, are mahr agreements enforceable in a divorce court in Atlanta, Georgia?

First, what is a mahr agreement?

A mahr agreement is a civil contract that is an integral part of a marriage of a Muslim couple. It is considered a “gift” that the husband gives the wife when the marriage contract is signed; after which time it is considered the wife’s property.
The mahr is intended to assist the wife financially in case of divorce or her husband’s death, and to discourage the husband from exercising his unilateral right to repudiate the marriage. The value of a mahr agreement can be substantial; in some cases it can exceed the value of the entire marital estate. The terms of a mahr can vary, and some may specify aspects of the marriage (such as house purchases or how the spouses will treat each other).

Is a mahr agreement just a prenuptial agreement?

The mahr agreement is similar in nature to a prenuptial or antenuptial agreement in two ways: they are both established prior to the marriage, and both are legal agreements that contemplate a divorce, not a marriage. Under Islamic law, the mahr is considered a supplement, not a substitute. A prenuptial agreement substitutes for any rights that the spouses have against each other for alimony or property distribution. The mahr, however, is a supplement to the rights that the wife has to alimony or inheritance of the husband’s estate. The mahr substitutes for equitable distribution of property that is held in the husband’s name, and protects the wife’s property held in her name. Both sides benefit from a mahr agreement; while it ensures the wife’s future financial stability, it also protects the Muslim husband from paying alimony or giving up property in a divorce.

How are mahr agreements interpreted in Georgia divorce courts?

A mahr does not have the same requirements as marital contracts in the State of Georgia; (Georgia law requires marital contracts to be written and to have two witnesses). Instead, it is a contract, like a prenuptial or antenuptial contract, that is made in anticipation of divorce (not of marriage).

As such, a mahr can be construed and enforced as a prenuptial agreement by the court. Georgia courts have expressly approved of agreements made in anticipation of divorce. See Scherer vs. Scherer, 292 S.E.2d 662, (Ga. 1982) which is the seminal case on the topic. The Scherer court held that antenuptial agreements are contracts that are made in contemplation of divorce, and not made in contemplation of marriage. Thus, prenuptial and antenuptial agreements can be enforced in the State of Georgia.

The requirements for enforcement

To be enforceable, these agreements must meet the following requirements:

  1. The contract or mahr agreement was not obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of facts
  2. The terms of the agreement are not unconscionable
  3. The facts and circumstances have not changed since the contract was entered, so as to make its enforcement unfair and unreasonable under the present circumstances.

If the prenuptial agreement meets these criteria, then the court should (and usually will) enforce it against the parties. There is no reason why a mahr should not enjoy similar treatment.

Knowledgeable legal counsel is important

Mahr is an important element in most marriages between Muslim spouses. It is, in many respects, like a prenuptial agreement. It is a material asset of an Islamic marriage, and is a relevant component in a Georgia divorce for determining the equitable distribution of property and alimony. Extreme inequity and abuse of mahr provisions can result due to the lack of understanding of what a mahr is by Georgia courts. It is essential to obtain knowledgeable legal counsel who can explain and argue it in a Georgia court.
Scott Shaw is founder and principle of Shaw Law Firm PC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309 or contact us.