WILLIAM MITCHELL JOURNAL OF LAW AND PRACTICE
12
The validity of the marriage contract in the above scenario is a common issue that can arise in an Islamic
divorce context. An attorney who is faced with this scenario should first turn to Minn. Stat. § 519.11, the
Minnesota statute governing antenuptials. According to the statute, an antenuptial contract – an agreement
prior to the solemnization of marriage – is valid if: (a) there is a full and fair disclosure of the earnings and
property of each party, and (b) the parties have had an opportunity to consult with legal counsel of their
own choice.
After determining whether there has been a fair and full disclosure of the earnings of each
party, the attorney must also determine whether the parties had an opportunity to consult with legal counsel
prior to signing the agreement.
Many couples may choose not to consult legal counsel and instead turn to
trusted family figures, but it is important to evaluate the choices that were made during the negotiation
process and how these choices impacted the outcome.
Depending on the individual culture, many Islamic marriage contracts are signed the day of the
ceremony. This can sometimes bring into question whether both parties had the opportunity to consult with
the legal counsel of their choice. However, despite the cultural traditions, many Islamic marriage contracts
are the result of a lengthy, well thought out negotiation process during which both parties have the
opportunity to consult legal counsel and family members.
Therefore, the signing of the marriage contract
on the day of the ceremony is considered a formality. Since Mrs. X’s marriage contract is the product of
such negotiations, under Minn. Stat. § 519.11, the contract is most likely valid as an antenuptial agreement
under Minnesota law.
However, a court’s enforcement of any religiously inspired document immediately invokes First
Amendment questions. On the other hand, if the contracts are set forth in terms that allow a court to enforce
them using neutral principals, there should be no constitutional quandary. First Amendment scholar Eugene
Volokh argues that “[i]f two parties enter into an agreement promising to perform a secular act (e.g., pay
money) in the event of some secularly ascertainable event (e.g., a divorce),” then there is no constitutional
barrier to enforcing the agreement.
This is exactly the case in Mrs. X’s situation. Mrs. and Mr. X entered
into a legally binding contract promising to perform a secular act – pay Mrs. X $20,000 - in the event of a
secularly ascertainable event – their divorce. The analysis of the contract’s enforceability is not affected
by the fact that their agreement had a religious motivation. Therefore, a court should not be precluded from
enforcing Mrs. and Mr. X’s religious antenuptial agreement on constitutional grounds.
Practitioners should not be distracted by marriage contracts that are drafted in a foreign language. The first
step in approaching a contract of this nature is to find a reliable translator who can provide an accurate
translation of the document. Translators may also be able to help explain what a specific seal or stamp is
on a contract. If finding a translator is difficult, consider contacting the courts. Many courts have a bank
Minn. Stat. § 519.11, subdiv. 1.
See id.
See generally Abd al Ati, supra note 7, at 50-98. There are several issues surrounding Islamic marriage contracts
that require discussion and negotiations between the bride, groom, and their families. These discussions generally
take some time to complete due to the complexity of the issues and differences of cultures and expectations
involved.
The Volokh Conspiracy, Islamic Agreements in Civil Courts, <http://volokh.com/posts/1216332053.shtml (last
visited Oct. 13, 2010).
12
Journal of Law and Practice, Vol. 4, Iss. 1 [2010], Art. 3
http://open.mitchellhamline.edu/lawandpractice/vol4/iss1/3