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Court rejects Islam-influenced post-marital agreement

I have long argued that American courts should deal with Islam-related religious issues by simply applying existing American law, without any special rules either favoring or disfavoring Islam or Muslims. Sometimes that means Muslim claimants might win, for instance when they claim reasonable religious exemptions under existing American religious exemption rules (which are available to people of all religions), or when they enforce valid contracts or wills inspired by Islamic legal principles. Sometimes they should lose, for instance when their religious exemption claims are treated as unreasonable under existing American law, or when their contracts violate established American legal principles.

Here’s an example of the latter, from an Appellate Court of Illinois decision last week (In re Marriage of Iqbal & Khan (Ill. App. Ct. May 6, 2014)). Several years into their marriage, a Muslim couple entered into a contract that provided, in part:

1. Husband shall name Wife as a tenant by the entirety of the property located at 925 Iroquois Avenue, Naperville, … previously owned as Husband’s separate property…. Counselor [Fisal Hammouda, a businessman who also served as a marriage counselor within the Muslim community, and who acted as a mediator in negotiating the contract] will be an additional signatory on the property, and his signature is required for any transfer of rights in the property to be valid and binding, and no transfer may occur without Counselor’s signature, and the signature of Husband and/or Wife…. Should Wife unreasonably file for divorce (without Counselor’s written approval), she will forfeit her … right to any share of the home. Should Wife reasonably file for divorce (with Counselor’s written approval) she will be entitled to her vested share in the home at [a rate reflecting the length of time since the agreement]…

7. Husband and Wife agree to base their life and marriage on the Holy Quran and Sunnah, as practiced in the Islamic religion.

8. Husband and Wife agree to make a good faith and sincere effort to make their marriage work and last their entire lives. Husband and Wife further agree that an unreasonable divorce is not in the best interests of their Children, and their continued marriage is in the best interests of their Children.

9. Husband and Wife agree that an unreasonable divorce (without Counselor’s express written approval) is a violation and contrary to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights conveyed in this agreement. If either party seeks an unreasonable divorce, they hereby agree to surrender full custody rights to the other, and agree to only reasonable visitation rights to the Children….

13. Husband and Wife agree not to call the authorities or police for any incident, unless an [sic] life or death emergency and for the benefit of the other, without first consulting and discussing the matter with Counselor and obtaining his express written approval for further action. Violation of this clause is grounds for forfeiture of the violating party’s rights herein….

20. Husband and Wife agree to consult with Counselor over any significant problem or major issue, and agree that Counselor’s opinion and decision will be final and binding on both of them, and both agree to respond and act according to Counselor’s opinion and decision….

27. Husband and Wife agree that any violation of any one or more of the clauses of this agreement, avails each party to forfeiture of all rights herein, as reasonably decided by Counselor, including but not limited to any and all rights to property, monies and/or custody of the Children. Both Husband and Wife further agree that the decision of Counselor is final and binding on both Husband and Wife.

28. Husband and Wife agree, that in consideration of Husband’s separate property being made joint property, as well as the conditions set and described herein, Husband and Wife herewith agree to share in each other’s estate upon death, whether by will, statutory share, dower and/or curtesy, whether such right now exists by case law or by statute, and further waives their right to alimony, whether permanent or rehabilitative, separate maintenance, or any other forms of spousal support….

32. All matters, including those not specified herein and agreed upon by Husband and Wife, shall be dealt with and handled by consultation with Counselor or his designee, and according to Islamic law. Counselor hereby agrees to deal with both parties fairly and in good faith, and to reasonably follow Islamic Law, including the Holy Quran and Sunnah, to the best of his understanding.

The court held that the contract was unenforceable — not because there’s something improper about working religious principles, or Islamic principles, into a contract, but because it violated established religious-neutral principles of family law:

We begin with the argument that the PNA [post-nuptial agreement] is unenforceable because it violates public policy. The public policy of this state is reflected in its constitution, statutes, and judicial decisions. Whether a private agreement between parties, such as the PNA at issue here, is contrary to public policy depends on the particular facts of the case….

It is the public policy of this state that courts have an independent duty to ensure that the arrangements made by divorcing parents that directly affect their children — those relating to custody, child support, and visitation — are in the best interest of the children…. [T]he terms of [marital] agreements that affect child support, custody, and visitation are subject to court oversight and must be approved by the court in order to be enforceable. Parents “are not at liberty to make agreements which affect the interests of their children without obtaining the approval of the court.” …

The PNA violates these principles in several respects. It gives Hammouda sole power to determine which parent will have custody of the children, because he has sole power to declare whether a party seeking a divorce is doing so “reasonably” or “unreasonably” (paragraph 9) and also is the sole arbiter of whether either party has violated a provision of the PNA such that he or she should forfeit any claim to custody (paragraph 27). Although Hammouda promised to act in accordance with “Islamic Law, including the Holy Quran and Sunnah, to the best of his understanding” (paragraph 32), under the PNA he has no obligation to act in the best interests of the children.

Moreover, even if he had undertaken to act in the best interests of the children, neither he nor the parties may substitute their judgment in this regard for the judgment of the court, which must approve any custody arrangement agreed upon by the parties. We also note that, under paragraph 27 of the PNA, Hammouda’s judgment is intended to be binding and final, without recourse to review by any court. Indeed, even if both of the parties wished to modify the agreement, they could not do so without Hammouda’s approval (see paragraph 31)….

[Mohammad] argues that these provisions are severable, and he seeks to enforce only those provisions that relate to property distribution. We cannot accept this argument…. “[A] court may sever the unenforceable portion of an agreement and enforce the remainder” if the party seeking enforcement did not engage in serious misconduct and the unenforceable portion is not essential to the agreement as a whole. Here, it is clear that custody of the children was extremely important to both parties: custody was contested vigorously before the trial court and is also at issue in this appeal. Indeed, Mohammad suggests that he entered into the PNA in part so that he could see his children after a three-month separation. Hammouda’s control over which party would have custody of the children therefore must be seen as of great importance to the parties, and we conclude that the removal of these terms would change the nature of the parties’ overall bargain substantially, to the point that we cannot conclude that without them the parties would have entered into the PNA.

Moreover, the issue of custody was intertwined in the PNA with financial issues. Under paragraph 27 of the PNA, Hammouda could decide whether a violation of any provision of the PNA — regardless of the provision’s subject matter — should result in a party’s loss of custody, loss of property rights, or both. As the custody terms were an essential aspect of the PNA and were intertwined with the financial terms, we do not believe that we can apply the severability clause and enforce the remaining provisions of the PNA.

Even if we could sever the financial provisions of the PNA from the child-custody provisions, however, we would still find the PNA invalid and unenforceable. As the trial court found, the term “unreasonable divorce,” the linchpin upon which the entire agreement turns, is vague, ambiguous, and uncertain. Although the PNA describes an “unreasonable divorce” as one filed without Hammouda’s approval, the PNA does not state the circumstances under which he would deem a divorce “unreasonable.” A court may consider parol evidence when a term is ambiguous. Here, however, Hammouda’s testimony regarding the circumstances under which he would deem a divorce “unreasonable” was likewise vague and ambiguous. Thus, the vagueness and ambiguity were not cured by the parol evidence that was offered.

The PNA is also substantively unconscionable. A contract is substantively unconscionable, and thus unenforceable, where the terms are significantly one-sided or oppressive. Here, the PNA provides that Uzma would forfeit all rights to the largest marital asset, the 925 Iroquois property, if she “unreasonably file[d] for divorce.” Significantly, however, the PNA does not impose a similar penalty on Mohammad…. In addition, although the PNA recites that the retitling of the house in both parties’ names was the consideration for Uzma giving up her right to maintenance, that retitling had little or no value given the fact that the house was already a marital asset, not Mohammad’s nonmarital asset. Finally, the vagueness of the term “unreasonable divorce” further contributes to the substantive unconscionability of the financial terms of the PNA, as it raises the possibility that Uzma could lose her property rights if Hammouda withheld approval of her desire to file for a divorce, even if his actions were whimsical or capricious….

As I’ve argued before, this is exactly the right approach for courts to take. Muslims are entitled to enter into contracts or leave wills that reflect Islamic religious principles — such as wills that leave more property to sons than daughters, or union contracts that provide for days off on Islamic holidays, or arbitration agreements that call for Islamic arbitration — just as Christians or Jews may enter into contracts or leave wills that reflect Christian or Jewish religious principles. But Muslims are bound by the same limits on contractual freedom as Christians, Jews, and others are. We can debate what those limits should be, especially in the complicated area of family relationships, but they shouldn’t be Muslim-specific limits.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.



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