Court Refuses to Enforce Muslim Prenup


Here’s a rather odd twist on what one would expect in a case involving a Muslim divorce agreement — one where the Muslim legal principle would actually be better for the wife than what American law provides. But a Kansas court rejected the wife’s attempts to enforce what is called a “mahr contract” because it was contrary to the requirements of American law.

The case involves an Iranian couple, Faramarz (“Fred”) Soleimani and Elham Moghadam. The husband has lived in America for decades, almost all of that time married to another woman. In 2009, he brought Moghadam over from Iran and married her (they were married in Iran first, then in the United States in a civil ceremony). Two years later, she filed for divorce, alleging rape and abuse. And she wanted the court to enforce a mahr agreement that they had signed that would require him to pay her $677,000. But the court refused to do so, on several grounds.

The parties agreed in the Pretrial Order to the application of Kansas law. By urging the Court to adopt and interpret a mahr contract that is written in Farsi and dictated by interpretations of Iranian and/or religious law, the Court would be compelled to apply a contract 1) it cannot read and 2) that is contrary to the public policy of Kansas law….

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]….

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…. 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.

There’s a lot of other stuff in there about both parties being broke (the husband is unemployed and the wife is now homeless), and the court did order the husband to pay spousal support. But it refused to enforce an agreement written in Farsi (without a competent translation, apparently) and based upon Iranian and Islamic law because it was contrary to the requirements of Kansas law. But I’m sure Pam Geller, Frank Gaffney, Robert Spencer and David Yerushalmi will be along any minute now to declare that this is proof that the courts are enforcing Sharia law. You can read the full ruling here.

Comments

  1. Nepenthe says

    I don’t understand the problem with it being written in Farsi. Is there some law that only contracts written in English are enforceable? Would they fail to enforce a business contract between a Japanese company and a Kansan company on the basis of it being officially written in Japanese?

  2. d cwilson says

    I realize Kansas doesn’t have a reputation for being the most cosmopolitan state, but they couldn’t find one competent translator?

  3. Scrutationary Archivist says

    Is Kansas one of those states that passes a law prohibiting the use of foreign law in its courts?

  4. says

    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.

    I vote this for the Ironic* Statement of the Week award. As if our marriage laws don’t “embed discrimination through religious doctrine” even if we are supposed to have a separation of church and state. (Claiming you have a separation of church and state and actually applying a separation of church and state are not the same!)

    * “Ironic” probably isn’t the best word, but it’s the best I could think about on the spot.

  5. eric says

    Thirding @2 and @3. Its pretty incredible that the justice department of an entire State can’t find a decent Farsi translater. Equally incredible that they would say that’s legitimate reason for a ruling. In a system that regularly grants multiple-month trial extensions for what seems any legal reason under the sun, you’d think ‘hiring a translater’ would count as a very good reason to delay.

    Having your argument comprehended by the court is a pretty necessary component of a fair trial.

  6. Abby Normal says

    Echoing Nepenthe, if the court can’t read the contract, how did it reach the conclusion that its contents are antithetical to the laws of Kansas?

  7. Abby Normal says

    Scrutationary Archivist @4

    Is Kansas one of those states that passes a law prohibiting the use of foreign law in its courts?

    Yes.

  8. bmiller says

    What I don’t understand at all is…this was a Prenuptial Agreement, a contract. What right does the court have to decide that the reason for provisions in the agreement are unacceptable? The two parties agreed to it…seems to be a simple matter of contract law.

    Or am I missing something here?

  9. machintelligence says

    There’s a lot of other stuff in there about both parties being broke (the husband is unemployed and the wife is now homeless), and the court did order the husband to pay spousal support.

    It sounds like she will have enough trouble collecting alimony. The other amount is probably moot, unless he comes into an inheritance. If that happens, perhaps she can appeal to an Iranian court.

  10. says

    Does the “can’t read” part mean that the original document is still in Iran, and that the court doesn’t have an actual copy of the document?

  11. Chiroptera says

    bmiller, #10: The two parties agreed to it…seems to be a simple matter of contract law.

    Yes, and the law in most jurisdictions place some limits as to the provisions in a contract that may be legally enforced. If a contract contains a provision that the law does not allow to be enforced, then, as far as the courts are concerned, that part of the contract is null and void.

  12. jjgdenisrobert says

    So now I hope this sets a precedent for the rejection of contracts written under Halakha law? Or the rejection of Canon Law arguments made by the Catholic Church in child abuse cases?

  13. jjgdenisrobert says

    @bmiller: Yes, you are missing that the USA is not a libertarian paradise. You could try Somalia, but you’ll be hard-pressed to find a court that will uphold ANY contract except by force of arms. You see, in order to have working courts, you have to have working governments, and a working set of laws. And those laws ALWAYS constrain contracts; otherwise, you could write contracts that contravene those laws and make them moot. For example, you could write a contract that binds you to a master as a slave.

  14. timpayne says

    Fuck’s sake jjgdenisrobert, what’s this gibberish about ‘libertarian paradise’? She signed a prenup that entitled her to a specific sum in the event of a divorce. Under the working laws of what state is that not legal?

  15. DaveL says

    Thirding @2 and @3. Its pretty incredible that the justice department of an entire State can’t find a decent Farsi translater. Equally incredible that they would say that’s legitimate reason for a ruling.

    I’ve been reading through the Kansas statutes on rules of evidence, and I think this is based on a misunderstanding of how translations work in court. The burden of translation rests on the party introducing the document into evidence. The respondent in this case did attempt to introduce the contract and a translation into evidence, but there were two problems:

    1) Foreign documents need to be accompanied by a certification of authenticity from the foreign authority, which the respondents lacked; and

    2) For a translation to be admissible, at a minimum somebody with the ability to read both documents has to testify to its accuracy. Normally, the interpreter would do this hirself, but it appears no such testimony was offered by the respondent. She herself could read Farsi, but was unable to read English well enough to attest to the translation’s accuracy.

    The burden of requesting a continuance in order to procure a suitably attested translation would also fall on the respondent, which it seems they failed to do.

  16. dave says

    @10 & @17

    No, she did not sign a prenup. She signed a Mahr agreement. The court held that the Mahr agreement was contrary to Kansas law for several reasons, most notably being based on a legal system that assumes fault in a divorce and doesnt allow women to seek one. Others included that the parties couldnt agree on a translation and didnt provide a full translation. But the court also noted that in other jurisdictions where a Mahr agreement was interpreted as a prenup, it generally failed to meet the statutary requirements of a prenup. For a fuller discussion of the case, see its treatment at Volokh: http://www.volokh.com/2012/09/10/court-refuses-to-enforce-islamic-premarital-agreement-that-promised-wife-677000-in-the-event-of-divorce/

  17. DaveL says

    She signed a prenup that entitled her to a specific sum in the event of a divorce. Under the working laws of what state is that not legal?

    Apparently, Kansas. It seems to depend on the amount and the respective economic situations of the parties. Kansas state law doesn’t recognize fault in divorce cases, and forbids the imposition of penalties on the basis of fault. The judge found the exhorbitant (over $600,000 where both parties where essentially destitute) payment, payable only to the wife upon divorce, to constitute just such a penalty.

    Page 29 of the ruling:

    See Gross v. Gross, 11 Ohio St.3d 99, 464 N.E.2d 500, 506 (Ohio 1984) (noting that a prenuptial agreement violates public policy if the contract “provides a significant sum either by way of property settlement or alimony at the time of a divorce, and after the lapse of an undue short period of time one of the parties abandons the marriage or otherwise disregards the marriage vows”). Here, both parties sought a divorce.

  18. xmnr says

    “The parties agreed in the Pretrial Order to the application of Kansas law.”

    IANAL, but this seems like the end of any argument.

  19. paul says

    “The parties agreed in the Pretrial Order to the application of Kansas law.”

    IANAL, but this seems like the end of any argument.

    I thought that state law applied whether you agreed to it or not.

  20. says

    @bmiller:
    Contracts need to meet specific requirements to be valid. I could not drag you to court because I got you drunk and convinced you to sign a contract promising the payment of a kajillion dollars in return for me transferring ownership of the Milky Way galaxy, for example.

    Also (on the other issue ITT), I’m compelled to agree with the sentiment that if the parties didn’t make the case administratively relevant, it would be tossed out. It isn’t the court’s job to be archeologists. If the above contract was written in Sanskrit and I present a scroll as evidence, I would need to also provide a person as an impartial authority regarding the scroll’s text who can present a translation that can be used by the judge.

  21. Ben P says

    So much wrong in this thread….

    Thirding @2 and @3. Its pretty incredible that the justice department of an entire State can’t find a decent Farsi translater.

    For the court to state that they “cannot read” the document is a lie at worst and laziness at best.

    1. The court system in Kansas and in most states isn’t the justice department.

    2. It is absolutely not the role of a court to provide a translator to support the Wife’s argument.

    Certified translators are available, I’ve got the contacts for certified Mandarin, Japanese and Spanish translators in my outlook contacts because we’ve used them in our practice. But they are expensive. One has to be certified to testify in court and certification requires not only a degree of fluency, but ability to explain technical concepts.

    More importantly, in order to introduce a foreign language document into evidence, you have to provide a translation. You absolutely cannot simply say “hey, I have this contract in Farsi, here’s what it says, now enforce it,” If for no other reason than the other party is probably going to dispute what it says and reading farsi is not a requirement to be a judge.

    If the wife didn’t pony up for a translator in a proper attempt to get the document in, that’s her fault. And No, in civil cases you typically don’t have the right to government assistance like you would with a criminal defense.

    As far as the court ruling that the contract is contrary to the public policy of Kansas law, that’s a judgment call, but he’s absolutely within the law. I know nothing about Kansas law on prenuptual agreements, but in my state the requirements for entering into one are fairly rigid. Both sides have to be fully aware of the circumstances and be informed about the agreement. It’s not a requirement that both sides be advised by lawyers but it’s not a bad idea. The scenario of presenting your fiance with a contract the morning of the wedding and “you want the wedding to go forward dont’ you baby? then sign this” will result in a busted prenup.

  22. Ben P says

    “The parties agreed in the Pretrial Order to the application of Kansas law.”

    IANAL, but this seems like the end of any argument.

    I thought that state law applied whether you agreed to it or not.

    Like all legal questions, the answer to this is “depends.”

    I can absolutely draw up a contract that says “The law of the state of New York shall apply to this contract.” I bet if you read your credit card borrower agreements they either apply New york law or the law of some state like North Dakota or Wyoming.

    I can just as easily write a contract saying “This law shall be governed by the law of Germany” or “the Federal Law of the United Arab Emirates.”

    Generally a choice of law provision will be ruled enforceable so long as the law chosen has some connection to the agreement, and the law that I am attempting to use doesn’t violate the public policy of the state we’re actually in.

  23. iangould says

    “So now I hope this sets a precedent for the rejection of contracts written under Halakha law? Or the rejection of Canon Law arguments made by the Catholic Church in child abuse cases?”

    Applied consistently, this ruling would require the court to reject contracts from Canada, Great Britain, Australia and much of Latin America and continental Europe because those countries also don’t recognize separation of church and state.

    Assuming this contract was entered into willingly by both parties amd with full knowledge and understanding of its provisions, then it should be enforcable.

  24. Ben P says

    Applied consistently, this ruling would require the court to reject contracts from Canada, Great Britain, Australia and much of Latin America and continental Europe because those countries also don’t recognize separation of church and state.

    Trial court rulings have no precedential value. At best it can be referenced as a “here in this similar situation this judge did this, you should do this in this case as well.” A lot of the time trial courts don’t even bother writing out written orders like this.

  25. M Groesbeck says

    Does this count as precedent in Kansas? I’d love to see contracts rejected because they contain some reference to Christianity…

  26. demonhauntedworld says

    The American Freedom Law Center is crowing about this ruling. Ironically, they have no problem with the Establishment Clause or asserting that judges need to interpret laws in a secular manner:

    Thus, a secular U.S. judge who acts like a qadi, is in effect attempting to discern Islamic law by penetrating the will of Allah. […] This, our Supreme Court has properly said, is an unconstitutional violation of the Establishment Clause.

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