Pact found to meet 'neutral principles of law'
Jim Edwards
New Jersey Law Journal
07-02-2002
In New Jersey's first substantive decision on Islamic Law, a Passaic County judge ruled
June 24 that a religious, dowry-style contract signed by two Muslims at their marriage is
enforceable upon their divorce.
New Jersey Superior Court Judge John Selser enforced the "mahr" (MAH-her) that Houida
Saadeh and her husband Zuhair Odatalla signed on their wedding day, finding that
aspects of the religious code were acceptable under "neutral principles of law." Odatalla
v. Odatalla, FM-000366-01.
The agreement called for an "Islamic Law Dower" of one golden pound coin and $10,000
in U.S. dollars "postponed." In Islamic law, the postponed portion of a mahr is usually
payable after a set time period, the death of the husband or divorce.
Selser noted that in addition to the mahr notation on the Islamic marriage license, the
negotiations between the two families before its signing had been videotaped as part of
the ceremony, and two witnesses signed the agreement.
Such a detailed record allowed Selser to conclude, "All of the essential elements of a
contract are present. ... the Mahr Agreement in the case at bar is nothing more and
nothing less than a simple contract between two consenting adults."
The ruling, which took Selser 2 1/2 months to write, also indulges in a fair amount of dicta
about New Jersey's changing demographics. Selser wrote that "the challenge faced by
our courts today is in keeping abreast of the evolution of our community from a mostly
homogenous group of religiously and ethnically similar members, to today's diverse
community. The United States has experienced a significant immigration of diverse people
from Japan, China, Korea, the Middle East, South America; who are Catholics, Jews,
Muslims ... to name a few. Can our constitutional principles keep abreast of these
changes in the fabric of our community?"
Clifton, N.J., solo practitioner Abed Awad, who represented the plaintiff wife, hails the
ruling as a breakthrough. "It essentially sets the stage for Islamic mahr agreements to be
considered valid contractual obligations which are enforceable. And this particular ruling
is the most consistent with Islamic law."
In other jurisdictions, courts have treated mahr agreements to a mixed reaction. New York
and Florida have recognized them, but California has struck them down as against public
policy.
The husband's lawyer, Thomas Raimondi of Afflitto, Raimondi & Afflitto in Wayne, N.J.,
had argued that enforcing the mahr would violate the First Amendment's prohibition
against establishment of religion by the state. Selser's decision "is of no consequence for
New Jersey's divorce laws," he says. "Since the judge took the mahr agreement and
treated it as a contract rather than a religious custom, the issue of church and state has
been removed from the issue."
Raimondi and his client have not decided whether to appeal.
Legally significant or not, the decision will have some interesting consequences for New
Jersey Muslims, Muslim lawyers say.
Awad notes that the ruling gives Islamic clerics court-ordered clout. "I think it will be
welcomed in the Muslim community, mainly by women from our community, as they have
been accustomed to seeking the intervention of the religious cleric, or the imam in the
mosque, who may well order the husband to pay the mahr agreement. But his obligation
to pay is an ethical and moral obligation, with no enforcement mechanism.
"So many poor women can't go and ask for [their mahr]. I have one case where a
husband would not give her a divorce unless she gave it up. It's just not fair," Awad says.
Adds Sohail Mohammed, another Clifton solo practitioner, "It's going to go a long way in
the community, especially for the imams. They needed some sort of assurance or
guidance ... [it] basically forecloses any dispute or challenge later on. So from the
beginning it's going to provide teeth for the imam. ... What argument will [errant husbands]
have to say, 'we didn't think this was the law or public policy?' That argument is shot now."
Awad notes that Selser ruled on the mahr separately from the equitable distribution of the
couple's assets and debts. "The most significant aspect of this decision is that unlike New
York or Florida and other jurisdictions that incorrectly construed the mahr agreement as a
prenup, Judge Selser's interpretation of the mahr agreement is the most consistent with
Islamic law," he says.
Selser's ruling actually makes no statement on whether a mahr is a prenuptial agreement,
leaving that question to be raised in future cases.
"It's simply avoiding the issue that it's going to have to address in the future. It's going to
lead the court right back to the same situation, which is to enforce it as a prenup. I think
the court took the easy route," says Hamdi Rifai of Rifai & Associates in Newark, N.J.
Wives "shouldn't be entitled to some sort of additional amount as some sort of side
agreement. If at all, it should function like a prenup.
"I personally disagree with the opinion because oftentimes these are not negotiated
agreements," Rifai adds.
