Soleimani v. Soleimani (Kan. Dist. Ct., Johnson Cty., No. 11CV4668, Aug. 28, 2012) is a very interesting decision on enforcing Muslim premarital agreements in American courts. (For more interesting recent cases on this, see here and here.) The decision is long and detailed, and I can’t do it full justice, but here are some excerpts. First, the facts:
After 30 years of marriage [during all but the first year of which they lived in the U.S.], Faramarz (“Fred”) Soleimani, petitioner, known as a local restauranteur, sought and obtained a divorce from his wife of thirty years, Zohreh Bahmani, on February 19, 2008. Immediately prior to this divorce action, [the husband] had engaged in an internet relationship with respondent Elham Moghadam, an Iranian … woman twenty-four years younger than him. Pursuant to Iranian and Islamic customs, [the husband] undertook to transfer over $116,000 in premarital funds to her, beginning in November of 2006, culminating in an Iranian marriage contract-signing ceremony on July 19, 2009…. [T]he new couple traveled to the United States, following the execution of necessary visas and other related paperwork so that [the wife] could reside here. A Johnson County judge conducted a separate ceremony August 19, 2009.
The new couple seemed very happy and Mr. Soleimani, by all accounts, was devoted to his new wife, and she to him. He even had her name tatooed to his chest.
Less than two years later, he filed for divorce on June 1, 2011…. [There were] allegations of domestic violence, rape, a petition for protection from abuse which [the wife] filed in Case No. 11CV6179, (granted and finalized on February 3, 2012), and a separate action, alleging a marital tort case, alleging assault and battery, and repeating many of the allegations from the abuse case. That matter was dismissed on June 21, 2012, Doc. 22 in Case No. 11 CV7007, because [the wife] did not want to proceed without completion of a pending police investigation….
Since the domestic violence that has been alleged to have occurred, [the wife] has been living at a domestic violence shelter and has obtained no employment. [the husband] has been unemployed with the exception of his working for his ex-wife in exchange for living expenses. At 60 years old, [the husband] is bankrupt, according to his counsel. According to his ex-wife, finding employment in the restaurant industry will be difficult for him….
Under Iranian/Islamic custom and … a … permanent marriage contract can be reached by which [M]uslim couples reach a mahr agreement. In this instance, the parties signed a mahr agreement and [the wife] contends that because of the divorce, she can demand the payment of 1,354 gold quare (coins valued at $500 apiece or the equivalent of $677,000), from [the husband], which has been deferred while married….
A legal wrinkle:
House Substitute for Senate Bill No. 79 [passed unanimously by the Kansas House and in a 33-3 vote in the Kansas Senate] … preclude[s] the courts from applying foreign law, legal codes or systems that violate the public policy of our state or federal constitutions. Kan. Sess. Laws, Chap. 136, p. 1089-90 (2012). This act went into effect on July 1, 2012, and has been widely viewed as precluding courts from applying Shari’a law, although it does not mention the same….
Now Kansas law generally allows premarital agreements, unless they (a) “violat[e] public policy” or (b) fail to provide “inadequate disclosure” and are “unconscionable.” And the ex-husband “has not claimed he was pressured into signing a mahr agreement or that the mahr amount was too high.” “[M]ahr amounts can be determined by the bride’s relative worth in relation to other females in the family, her beauty, age, virginity, etc. In this instance, [the husband] was apparently satisfied that [the wife] justified the rather large mahr amount because he has not challenged the same.”
But the court ultimately decided not to enforce the mahr, and instead imposed, as a property settlement, that the ex-husband may “retain, for the most part, premarital property he possessed, after conferring the equivalent of $116,000 in gifts on [the wife] before any legitimate marriage had occurred.” (The ex-husband was also required to provide spousal maintenance of $692/month for 24 months.) And the court gave various reasons, some more factually specific to this case and some more general:
1. The court concluded that the mahr wasn’t sufficiently proven. “No competent English translation of the actual Farsi document that was introduced and admitted, was ever provided. There was limited testimony about the terms of the mahr agreement but not all of its terms and conditions…. The Court rejects [the parties’ conflicting testimony about the interpretation of some of the key terms] because it assumes the contract is ambiguous, a determination the Court cannot make without a complete understanding of the agreement.” If this were all that the court relied on, the case wouldn’t be particularly noteworthy.
2. But even if the supposed “Official Translation” of the agreement had been admissible, the court says, it still wouldn’t be enforceable. One reason was that the provision “would function as a penalty” based on fault — since the mahr seemed to provide for fault-based payment — contrary to Kansas’s no-fault approach to divorce. A related reason seemed to be that the high amount would unduly encourage divorce by the wife, something the judge said was contrary to Kansas public policy (citing two California cases to that effect).
3. Another reason, though, was more focused on the religious origins of the agreement:
Another cautionary concern in enforcing a mahr agreement is that they stem from jurisdictions that do not separate church and state, and may, in fact, embed discrimination through religious doctrine. This, in turn, creates an obvious tension between the Establishment and Equal Protection Clauses under the federal constitution [and similar state provisions] ….
[Under Islamic law, w]ives have no right to pronounce the talaq [which would cause a divorce]. Pathan, supra, part 2, section 13; Islamic “Purse Strings,” supra at 123. This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights of citizens and persons under the protection of Michigan’s laws.
Tarikonda v. Pinjari, 2009 WL 930007, *3 (Mich. Ct. App. April 7, 2009) (noting basic denial of due process in Indian divorce under [Muslim] act where husband’s invocation of triple talaq permits summary divorce by stating “I divorce thee,” three times). Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights, a concern that presumably [led] to the recently-enacted House Substitute for Senate Bill No. 79, 2012 Kan. Sess. Laws, p. 1089, § 4, which provides:
A contract or contractual provision, if capable of segregation, which provides for the choice of foreign law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this state and be void and unenforceable if the foreign law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.
(Emphasis added.) … Thus, if a premarital agreement in the context of KUUPA, was the product of a legal system which is obnoxious to equal rights based on gender, a court could not become a proxy to perpetuating such discrimination….
[The wife]‘s counsel has argued …, that the right to mahr is severable and independent of any other obligations in the marriage contract…. [But t]hat cannot happen based on the record here [referring back to the court’s concern 1, about the lack of admissible evidence about the precise terms of the agreement]….
Even assuming this Court could interpret the contract, it would then be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law. To suggest the mahr obligation is neutrally severable from its religious context is not apparent. Such flawed reasoning was utilized in Chaudry v. Chaudry, 388 A.2d 1000, 1006 (N.J. Ct. App. 1978), to justify upholding a premarital contract derived from Pakistani law, on choice of law grounds, rather than on public policy grounds. The result was judicial adoption of Pakistani law that inherently accords women no marital property rights. Oman, How to Judge Shari’a Contracts: A Guide to Islamc Marriage Agreements in American Courts, 2011 Utah L. Rev. 287, 314 (2011) (“In other words, under Pakistani law, the limitation on the wife’s rights arose not because she bargained those rights away, but from the fact that there was no marital property under Pakistani law upon which she might have a claim.”)
4. A third, related, reason had to do with the perceived difficulty with implementing the party’s true understanding of the contract without interpreting religious law, something that secular American courts can’t do:
[M]ahr agreements … are “too short on operative details, definitions, and explicit requests to have their terms represent an entire remedy at law in a civil courtroom.” See Lindsey E. Blenkhorn, Islamic Marriage Contracts in American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 S. Cal. L. Rev. 189, 210 n.5 (2002). Parol evidence [i.e., evidence about the party’s likely intentions] is almost always required in such cases because the mahr is fundamental to Islamic marriage custom and, therefore, ill-defined, leaving some Islamic courts to infer a mahr amount, if not to provided, to reach a judicial determination of a bride’s worth, which, in turn, may be inferred “according to other females in the bride’s family, her own beauty, her age, or her virginity.” Id. Such concepts, however, suggest women are, comparatively-speaking, chattel, not human beings. This entire valuation process is contrary to American jurisprudence even if a Western court could somehow divine a purpose for in the mahr amount for anticipated spousal support, as opposed to simply divining an intangible value for a wife’s cultural value….
With interpretation of a mahr agreement drawn under the “pertinence of the Islamic shadow behind which husband and wife negotiate, bargain, and determine mahr and its amount, courts have paradoxically refused an appreciation of contract law that would account for the parties’ particular, peculiar, private ordering regime.” Sizemore, Enforcing Islamic Mahr Agreements: The American Judge’s Interpretational Dilemma, 18 Geo. Mason L. Rev. 1085, 1099 (2011) (quoting Pascale Fournier, Flirting with God in Western Secular Courts: Mahr in the West, 24 Int’l J.L. Pol’y & Fam. 67, 69 (2010)).
5. Finally, the court suggested that a mahr might not “qualif[y] as a prenuptial agreement” at all, quoting the Sizemore article:
In other jurisdictions, courts classify the mahr agreement as a prenuptial contract and then proceed to void the mahr agreement for failure to meet the state’s statutory standards for prenuptials. For example, the Uniform Premarital Agreement Act, adopted by 26 states, provides that premarital agreements must be conscionable, entered into voluntarily, and executed only after both parties fully disclose their financial assets. Some states also require that independent legal counsel represent each party or that parties expressly waive representation. Most mahr agreements do not meet these requirements, and so, if treated as a prenuptial, many courts refuse to enforce the contracts.
Each voided mahr agreement establishes the misleading precedent that mahr agreements are equivalent to prenuptial contracts, when, in fact, the two are conceptually distinct. Indeed, the mahr developed for the sole benefit of the wife, as a way to ease an inequitable marriage custom and prevent financial destitution. In contrast, American prenuptial contracts formed to protect the economically superior party from sharing assets with the economically inferior party upon divorce. Thus, the mahr and the prenuptial contract developed to protect different parties and accomplish disparate goals.
Also dissimilar to prenuptials, mahr negotiations do not represent [an] attempt to bargain around default divorce law. When forming marital contracts in their home countries, Muslim parties most likely did not anticipate litigating in American courts and confronting state equitable division or community property laws. In Islamic tradition, each spouse retains their own assets as separate property during the marriage, and so marital or community property is foreign to Islam. And, finally, prenuptials represent the final financial agreement upon divorce, but Muslim couples may not have intended the mahr agreement to represent the exclusive post-divorce settlement because, under some schools of thought, the woman is entitled to alimony separate from her mahr.
Hence, the mahr agreement’s vagueness creates a judicial guessing game that allows non-Muslim judges to falsely equivocate the mahr agreement with a prenuptial contract that preempts equitable division laws. One scholar explains that these cases have “created a serious warping of American judicial understanding of Islamic law as well as a hindrance to providing justice to US Muslim litigants.” Thus, this insensitive use of parol evidence creates deceptive precedent that frustrates the proper enforcement of mahr agreements.
“In disregarding the mahr agreement in the case at bar,” the court stated, “the parties are not denied justice or a remedy.”
Rather, the protection of Kansas law, applicable to the parties here, requires an equitable division of property in a secular system that is not controlled by the dictates of religious authorities or even a society dominated by men who place values on women in medieval terms. See, e.g., In Re Marriage of Shaban, 105 Cal. Rptr. 2d 863, 865-67 (Calif. Ct. App. 2001) (husband argued for enforcement of an equivalent $30 mahr agreement); and Aleem v. Aleem, 947 A.2d 489, 493 n.5 (Md. 2007) (husband argued for mahr of only $2,500 when, under Maryland law, wife was entitled to at least half of $2 million in marital assets).
My quick and tentative reaction: I think religiously motivated contracts (and wills and trusts) should be interpreted the same as secularly motivated documents, so long as they can be interpreted using neutral principles and without evaluating religious doctrine. That makes sense as a matter of contract law and wills and trusts law, and required by the Free Exercise Clause principle that people ought not be discriminated against based on the religious nature of their practices. See, e.g., Church of the Lukumi Babalu Aye v. City of Hialeah (1993).
Thus, to take the simplest example, imagine a man dies and leaves a will that provides that 2/3 of his property will go to his son and 1/3 to his daughter, and it’s clear that this stems from his understanding of Islamic law, under which sons should get twice the share of daughters. Such a will, it seems to me, must be enforced, even if we think it stems from a sexist religious belief system. People are entitled to be sexist — and religiously motivated — in deciding whom to leave their property to.
On the other hand, if a man leaves a will that provides for division “according to the principles of Shari’a,” courts can’t enforce that, because that requires courts to interpret what Islamic religious law actually calls for, something that they can’t do. (See this post for more.) And if American choice of law principles in some case would normally call for the application of foreign law, and that foreign law calls for sex discrimination, then American courts may properly refuse to implement those foreign legal rules.
Likewise, if someone leaves property in a will to one church rather than another, because he thinks the first church is more orthodox, that will must be enforced by secular courts. On the other hand, if someone provides, “I leave this will to the most orthodox branch of Denomination X” or “I leave this will to this church but only so long as it remains orthodox,” secular courts may not enforce that, since that would call on decisions about religious doctrine. (See, e.g., the cases described here, including Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) and Jones v. Wolf (1979).) And American courts can’t enforce either state law rules or foreign laws that impose such a condition in the absence of a will.
The difference is between (1) interpreting religious law (prohibited by the Establishment Clause) or applying foreign discriminatory rules (likely prohibited by the Equal Protection Clause, and by the new Kansas statute) and, (2) on the other hand, applying a contract or a will according to its secularly ascertainable terms, which is permissible even if the motivation behind the contracting parties’ or testator’s decisions were religious or sexist.
Thus, it seems to me that the court’s concern about the contract’s “emanat[ing] from a legal code that may be antithetical to Kansas law.” Islamic law may have sexist provisions that are not those that Kansas law would impose, and religious doctrines that Kansas law may not try to interpret. But there’s nothing antithetical to Kansas law in enforcing contractual provisions that were animated by the parties’ sexist or religious motivations.
On the other hand, if the court really thinks that the true terms of the contract can’t be ascertained without interpreting religious doctrine — either because the words of the contract just weren’t properly proved, or because the contract is seen as implicitly incorporating religious doctrinal rules that courts can’t ascertain — then refusing to enforce the contract would be proper. Likewise, if the court thinks that the contract violates certain public policy rules independently of its religious motivation (such as a policy rule against imposing fault-based penalty provisions in a premarital agreement), the court should invalidate the contract (or the relevant parts of the contract) just as it would have for a secular agreement.