The Grand Rapids Divorce Attorneys at Krupp Law Offices P.C. can your questions about Islamic divorce and Michigan divorce law. The intersection of religous divorce and Michigan law can create complications.
Most, if not all, Islamic marriages involve the parties signing a Islamic Marriage Certificate. That marriage certificate is signed by the parties and the cleric who preforms the cerimony. The Islamic marriage certificate has a provision for "Mahr" similar to dower paid to the wife not the wife's family. Mahr is a cash dollar amount due "now or later". There is a question about enforceability of Mahr in Michigan courts. The Islamic marriage certificate of the parties is not as clear for a number of reasons. Specifically the Court of Appeals stated in Samman v Samman; 2004 WL2535219 the following:
“Defendant’s second claim on appeal is that the trial Court erred in its property division because it denied recognition of the parties Islamic marriage and divorce contracts. Defendant contends that the marriage contract should be recognized as a prenuptial agreement limiting Plaintiff to a $15,000 property settlement and that the divorce contract should be recognized as affirming the property distribution portion of the marriage contract” In this case, there was no preservation of the issue in that MCR 2.111(F)(3) requires affirmative defenses to be asserted in the party’s responsive pleading. In this case, the contract or prenuptial agreement is not listed as an affirmative defense and as such it was not properly plead and should be excluded procedurally. Further, the Court should make reference to Deal v Deal, 197 Mich App 739, 741; 496 NW2d 403 (1993).
There are strong arguments against the enforcement of such agreements in Michigan Courts.
- The Islamic marriage certificate clearly states that it is not made pursuant to any state law but rather is made pursuant to Shariah law. Further, the payment has no due date and the form is clearly religiously based and is not based in law. As such, on its face the agreement is unenforceable and merely provides for a religious obligation rather than a legal obligation.
- Alternatively, the Court would have to review the document on a basis of the agreement being a prenuptial agreement. As stated earlier, the agreement was never plead and as such should be excluded. If the Court determines a review as a prenuptial agreement is necessary, the agreement very clearly does not comply with Michigan law prenuptial agreements. Michigan holds that prenuptial agreements are valid provided they meet certain requirements (see Rinvelt v Rinvelt, 190 Mich App 372, 380-382; 475 NW2d 478 (1991). In that case, the Court specifically stated the following factors should be considered in determining the enforceability of a prenuptial agreement, specifically:
(1) where the agreement was obtained through fraud, duress or mistake, or misrepresentation or nondisclosure of material fact;
(2) where the agreement was unconscionable when executed;
(3) or where the facts and circumstances have changed since the agreement was executed, so as to make its enforcement unfair and unreasonable.
Iit is very clear that it was the understanding of the parties that this was not a legal document but rather a religious ceremonially document. Further, it was very unconscionable in the sense that it provide for a payment of a large sum of money and all right under Michigan law. "Now or later" with no logical end or payment schedule. It would clearly be considered illusory. Further, the agreement would be considered unconscionable. The Court of Appeals has very clearly stated that prenuptial agreements must be entered into voluntarily by the parties which each understanding his or her rights and the extent of the waiver of such rights. Prenuptial agreements require a special duty of disclosure not required in ordinary contact relationships so that each party will be fully informed before entering into such agreements stated in Benker Estate, 416 Mich 681, 684; 331 NW2d 193 (1982). The Court has clearly stated that full disclosure is required in order for a prenuptial agreement to be enforceable. Without full disclosure there cannot be a meaningful waiver of rights (see Lentz v Lentz, 271 Mich App 465, 474-475; 721 NW2d 861 (2006). In this case, there was no disclosure. Further, neither party had an opportunity to review the document prior to marriage nor did they have an ability to consult with an attorney. Further, there was no disclosure of assets.Additionally, in making reference to drafting points it is imperative that the contract be unambiguous. In this case, payments are required “now or later”.
The only case on point is Samman v Samman; 2004 WL2535219 it is anticipated that more case law in the court of appeals will develop.
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