Religion does not come into most people’s minds when thinking about a prenuptial agreement. However,  religion has become an increasingly important aspect as people contemplate a lifelong commitment to their economic partner and spouse.

By Cheryl I. Foster, Family Lawyer

There are two differing views of prenuptial agreements: One is that of a prenuptial agreement as a hideous device meant to preclude a partner from fruits of the economic partnership that he or she would otherwise be entitled to under the law. The other view is of a romantic agreement between two adults ready to take that great step toward marriage with their finances carefully defined. Whichever your client’s view, it is safe to say that religion does not come into most people’s minds when thinking about a prenuptial agreement (also called an antenuptial agreement). However, as more people marry outside their own races, religions, and creeds, religion has become an increasingly important aspect as people contemplate a lifelong commitment to their economic partner and spouse.

Catholicism

Prenuptial agreements are a matter of civil law, so Catholic canon law does not rule them out in principle. However, “Although canon law does not mention the topic of prenuptial agreements, the Catholic Church teaches that marriage is the complete giving of the spouses to God through each other. Therefore, there can be no strings attached. A prenuptial agreement is a very big string!” http://www.catholic.com/thisrock/quickquestions/category/Marriage/page2

In practice, prenuptials may run afoul of church law in a number of ways. For example, they cannot subject a marriage to a condition concerning the future (such as an agreement about dividing assets in case of divorce). The Code of Canon Law provides: “A marriage subject to a condition about the future cannot be contracted validly.” (CIC 1102)

The Canon Law: Letter and Spirit, a commentary on canon law, explains that “condition” may be defined as “a stipulation by which an agreement is made contingent upon the verification or fulfillment of some circumstance or event that is not yet certain.” It goes on to state that “any condition concerning the future attached to matrimonial consent renders marriage invalid.” For example, a marriage would be invalid if the parties stipulated that they must have children or they have the right to divorce and remarry someone else.

According to the Roman Catholic Diocese of Pittsburgh, although they admit the use of prenuptial agreements has become more commonplace in recent years, they view such agreements as a sign of immediate concern in the marriage preparation process.

It is suggested that the priest or deacon ask the couple about the possible presence of a prenuptial agreement at the initial meeting along with the questions about the possible presence of a prior marriage. The couple needs to understand that a prenuptial agreement may be an obstacle to a marriage in the Catholic Church. A legal document that protects the separate assets of the prospective spouses may well undermine the community of life that is essential to a marriage and may render it invalid.

The case of a widow and widower who intend only to protect the natural right to inheritance of children of their first marriage may be an exception. This is clear if the prenuptial agreement provides for the disposition of the property in case of death, rather than divorce. A prenuptial agreement that provides protection in the case of divorce may very well imply an exclusion of the permanence of marriage and, consequently, invalidating marital consent in the Catholic view. In cases where one party has considerably more assets than the other and those assets are protected from the future spouse with no third party being benefited (such as elderly parents who spent their lives building a family business), it is hard to see how the couple is intending the community of life that is true marriage.

The priest or deacon does not presume that any prenuptial agreement is acceptable. In the Pittsburgh Diocese, for example, before wedding plans can go forward, a copy of the prenuptial agreement needs to be sent to the Department for Canon and Civil Law Services for evaluation. The couple must be informed that the wedding plans are on hold until a determination is made as to whether the prenuptial agreement in question would render the marriage invalid. If the prenuptial agreement is determined invalidating, the couple must rescind the agreement before plans for a Catholic wedding can resume. Although there is no rule specifically against prenuptial agreements per se, it is clear that Catholics do not favor such agreements.

Judaism

Jewish divorce law requires the husband to deliver his wife, and for her to accept a bill of divorcement called a get piturin, commonly known as the “get.” To be valid, a get must be given of the husband’s own free will. To participate and provide for the get issue at the outset, many couples and rabbis have employed prenuptial agreements. An agreement can be linked to the ketuba. A “ketuba” (or Ketubah) is a special Jewish document and an integral part of a Jewish marriage, which outlines the groom’s responsibilities to his bride following the laws of Moses and Israel. The agreement can contain a clause wherein the parties to the marriage recognize the Bet Din (the Jewish house of judgment) of the Rabinnical.

Assembly and the Jewish Theological Seminary of America as having authority to counsel the parties in light of Jewish tradition and to impose such terms of compensation as it may see fit for failure to respond to its summons or to carry out its decisions. This clause in the ketubah was upheld in the New York Court of Appeals in Avitzur v. Avitzur, 58 N.Y.2d 108, 459 N.Y.S.2d 572 (1983), in effect compelling the recalcitrant husband’s appearance before the Bet Din and acceptance of their decision.

The dicta in Avitzur suggests a more indirect way of providing relief to the wife. The majority of the New York Court of Appeals found that the wording of the ketubah suggested an agreement of marital partners to appear before the Bet Din and held that the civil court could enforce such an agreement without running afoul of the First Amendment (separation of the state and religion). The majority was careful in recognizing that it was not called upon to order the husband to provide a get, noting that “plaintiff is not attempting to compel defendant to obtain a get or to enforce a religious practice arising solely out of principles of religious law.” Id., supra at 574. An order requiring the defendant to appear before the Bet Din was found to be available because the majority viewed the role of the civil court as enforcing “nothing more than an agreement to refer the matter of a religious divorce to a nonjudicial forum” Id.

In New York, Domestic Relations Law § 235, often referred to as the “get” statute is activated civilly in that both parties agree to “remove all barriers to remarriage.” California has attempted to pass a similar statute, but has been unsuccessful. New Jersey recently opined on whether or not to uphold a get in Aflalo v. Aflalo, 295 N.J. Super. 527, 685 A.2d. 523 (N.J. Super. Ch., 1996). In Aflalo, the wife sought to compel her husband to obtain a get, relying on the decision in Minkin v. Minkin, 180 N.J. Super. 260 (Ch. Div. 1981). The court in Minkin determined that by signing a ketubah, the parties “agreed to conform to the provisions of the laws of Moses and Israel. In Minkin, the parties entered into the ketubah voluntarily, and the ketubah itself did not violate public policy. Therefore, the court upheld and enforced the ketubah under contract principles. The court also found that compelling a husband specifically to perform the duties he promised to undertake in the ketubah would not violate the Establishment Clause of the Constitution. The Aflalo court declined to follow Minkin and recited the following reasoning:

[Minkin] fails to recognize that coercing the husband to provide the “get” would not have the effect sought. The “get” must be phrased and formulated in strict compliance with tradition, according to the wording given in the Talmud. The precisely worded “get” states that the husband does “willingly consent, being under no restraint, to release, to set free, and put aside thee, my wife[.]” Accordingly, in giving his wife a “get” a husband must “act without constraint.” Indeed, during the proceeding the husband is asked “whether he ordered [the “get”] of his own free will.” What value then is a “get” when it is ordered by a civil court and when it places the husband at risk of being held in contempt should he follow his conscience and refuse to comply? Moreover, why should this court order such relief when that is something which the Beth Din will not do? If a “get” is something which can be coerced then it should be the Beth Din which does the coercing. In coercing the husband, the civil court is, in essence, overruling or superseding any judgment which the Beth Din can or will enter, contrary to accepted First Amendment principles.
Mayer-Kolker v. Kolker, 359 N.J. Super. 98 (2003).

The Aflalo court determined that the Free Exercise Clause did not allow the court authority to compel either the husband or the wife to appear before a religious tribunal, whether to obtain a “get” or to discuss reconciliation. At this time, Florida also does not seem to agree with a get statute in light of Turner v. Turner, 192 So. 2d 787 (Fla. App. 1966), which held that the:

[S]tatutes of the State of Florida provide for only one kind of divorce; that is, a civil divorce ‘from the bonds of matrimony.’ An examination of the statute reveals that there is no authorization for a chancellor to require the parties to secure a religious divorce.
Id. at 788.

Although it may be considered progressive, the problem with the New York get statute is two-fold. The prenuptial agreement is activated by the commencement of a divorce. However, the get statute conditions the award of a divorce upon the removal of barriers (the giving of a get). Therefore, an obstinate husband can create a no-win situation, preventing both a civil and religious divorce.

Islam

Marriage is very important in Islamic cultures and viewed as the “key to social harmony and the bulwark against social discord and disorganization.” Judith E. Tucker, In the House of the Law 5 (1998). The Qur’an (the Koran) encourages those who are able to marry, stating, “Let those who find not the wherewithal for marriage to be an all-important safeguard the chastity, as well as a life-affirming act central to the growth of society and Islam” John L. Esposito, Women in Muslim Family Law (1982). [“safeguard to chastity?]

While marriage is considered vital in Muslim society, it is purely a contractual arrangement, devoid of sacramental significance as found in Christian religions. Koran at 4:21, marriage is a “solemn covenant.” The groom and the bride’s guardian (or wali), who is usually her father, grandfather, or uncle, negotiate the marriage. The actual marriage contract includes the names and lineages of the bride and groom, almost like a merger of families, and sets forth the details of the dower and the mahr. Tucker, supra at 38. A Muslim woman may never finalize a marriage contract on her own; instead, she must defer to her wali to negotiate its terms.

Some common negotiations include compelling the husband never to take on a second wife or promising never to relocate from their hometown. Jamal J. Nasir, The Status of Women Under Islamic Law and Under Modern Islamic Legislation (1990). The mahr is “the property given by the husband to indicate his willingness to contract marriage, to establish a family, and lay the foundations for affection and companionship.” The mahr is a gift that the bride is free to spend as she wishes.

There are two parts to the mahr, which are important distinctions in the context of this article relating to prenuptial agreements. The first part is the muqaddam, which the groom pays to the bride concomitantly with the marriage. The mu’akhkar, or the deferred portion of the dower, is paid in the event of death or divorce.

The deferred dower constrains Islamic men from divorcing their wives because it can become an expensive endeavor. Tove Stang Dahl, The Muslim Family: A Study of Women’s Rights in Islam (1997). It is, however, viewed as compensation to women for men’s unrestrained and unilateral right to divorce. For example, the divorce procedure, talaq, allows a husband to dissolve his marriage just by stating “I divorce thee” three times. The wife need not be present to validate the talaq. Dawoud Sudqi El Alami & Doreen Hinchcliffe, Islamic Marriage and Divorce Laws of the Arab World (1996). Consequently, the mahr is imperative for a Muslim woman’s future, given the unilateral nature of the talaq.

The question is whether a mahr can be considered a prenuptial agreement in the United States. Several jurisdictions have equated a mahr to a prenuptial agreement, including New Jersey, California, and New York. However, unlike a mahr, prenuptial agreements are not negotiated solely to compensate for inequities in marital law as described above. A prenuptial agreement is gender neutral, both genders may contract around property laws to protect their assets, whereas a mahr is designed solely to protect women.

The California Court of Appeals recognized this distinction in In re Marriage of Shaban, 105 Cal. Rptr. 2d 863 (Ct. App. 2001). The court found that the mahr was merely a marriage certificate and not a prenuptial agreement because it focused on the date, location, time, and witnesses of the wedding, rather than on the distribution of property. A New York court came to a similar conclusion in Habibi-Fanrich v. Fanrich, 1995 WL 507388 (N.Y. Supp. 1995). The court held that although religious agreements may be enforceable if they conform to the Statute of Frauds, this particular agreement failed to include materiality, specificity, and was insufficient. Thus, it was unenforceable because it only set forth the location, participants, and officiate of the ceremony.

The mahr is meant to provide financial security to divorcing Muslim women, however, often times it is more symbolic than anything. For instance, in Shaban, supra, the couple married in Egypt and provided for an immediate mahr of twenty-five piasters, or about one dollar, and a deferred mahr equal to about thirty dollars. If the California court had found that the mahr was a prenuptial agreement, the wife would have received thirty dollars upon their divorce, instead of one-half of his more than $3 million estate with her physician-husband under California community property laws.

Some courts, however, do not appreciate this innate problem with classifying a mahr as a prenuptial agreement. For example, in New Jersey, the court in Chaudry v. Chaudry, 388 A.D.2d 1000 (N.J. Super. Ct. App. Div. 1978), held that the mahr agreement was an antenuptial agreement, such that it superseded alimony or equitable distribution, awarding the wife only $1,500 of her deferred mahr, instead of one-half of her wealthy husband’s estate.

Similarly, in a Florida case, Akileh v. Elchahal, 666 So.2d 246 (Fla. App. 2 Dist. 1996), the court held that the sadaq (also known as mahr) was valid and enforceable and that “Florida’s contract law applies to the secular terms of the sadaq.” Id. at 248.

Jurisdictions are divided over whether or not a mahr is a prenuptial agreement in the United States. However, it is clear that marriage is extremely important to Muslim people and divorce is frowned upon in the religion.

Conclusion

Although Catholicism, Judaism, and Islam each has its own views towards prenuptial agreements, it is clear that each state also looks at premarital agreements in a different way and that the application varies depending on the jurisdiction. All in all, the one commonality is that the three religions discussed in this article encourage the institution of marriage. Thus, if a prenuptial agreement is to be palatable in the religious context, it should not promote divorce.

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Cheryl Foster practices matrimonial and family law primarily in Manhattan and the surrounding boroughs and counties. She specializes in preparing separation agreements, contested and uncontested divorces, contested custody proceedings, contested visitation agreements, support matters and pre-nuptial/post-nuptial agreements. She currently works at the Wallack Firm, P.C. in New York City.