MESA Banner
Lost in Translation: Muslim Marriage Contracts in American Courts
Abstract
At present, there are approximately one million Muslim pre-nuptial agreements in circulation in the United States. A uniform system has not emerged, however, for interpreting these contracts in American courts, due to the lack of uniformity that exists among “experts” in Islamic law. As Islam makes no formal distinction between the clergy and the laity, Imams with no formal training in Islamic jurisprudence and a poor understanding of Islamic law are often presented to American judges as experts in the Shar’ia; the results are unpredictable and inconsistent. For example, one expert might testify that the sadaq is a “bride price,” rendering the terms of the marriage contract illegal and thus unenforceable; another expert might claim that the sadaq is a “gift” from the husband to the wife, enabling the judge to uphold the contract as it was written. As expert testimony is a key factor in a judge’s decision to uphold or discard a given Muslim marriage contract, his or her testimony has ramifications for Muslim women in particular, who often rely on their marriage contracts to preserve their property and autonomy. While judges face a significant challenge in interpreting the terms and conditions of Muslim marriage contracts with any degree of certainty, Muslim couples face difficulty in drawing up legally valid contracts, given that no clear guidelines exist as to how the contract will be interpreted, nor which expert’s testimony will be regarded as dispositive. This paper focuses on the problems posed by religio-cultural pluralism in American courts and discusses the issues that arise in the adjudication of Muslim family issues. After giving an overview of American family law and how it articulates with relevant aspects of the Shar’ia, I will argue that developing clear guidelines for writing Muslim marriage contracts will have widespread positive consequences for Muslim couples in general, and for Muslim women in particular.
Discipline
Law
Geographic Area
North America
Sub Area
Comparative