Introduction
The practice of prenuptial agreements is common among Islamic marriages for marriage contracts protect a woman’s right during wedlock. The Islamic family law serves as an international family law among Muslim marriages around the globe but agreements drafted out in marriage contracts must be in line with the local rules of the given state. Though according to Shari’a where certain agreements in the prenuptial agreements contrast with the local state law, the Shari’a prevails. This paper will be discussing prenuptial agreements in Muslim marriages and their impact on Islamic women’s rights in the United States and United Kingdom. Western ideas such as the drafting of contracts and their legalities, divorce, scope and limitations of parties in their access to assets and wealth, child custody and support are somewhat similar to those in the Shari’a. In the United States, contracts are considered binding agreements between parties and thus they serve as hard evidence in terms of legal battles thus Islamic prenuptial agreements are considered and respected and followed by the United States law although there are some court states such as Ohio that do not honor some agreements noted in Islamic prenuptial agreements. On the other hand the United Kingdom, contracts are considered binding as long as both parties are registered under the English law (Khan, 2003). Divorce in the west has been very common especially in the United States where divorce rates go as high as 40% as of 2008 (Edwards, 2007) while in the United Kingdom divorce rates are one in every three marriages from 1995 to 2010 (Doughty, 2011). For Islamic marriages divorce is legal and permitted especially when serious differences arise and reconciliation seems impossible for the couple. According to the Shari’a a woman’s assets is solely her property before, during and after her marriage but in US and UK law unless stipulated in the prenuptial agreement, properties become conjugal with that of the husband. As for child custody and support even after a marriage breakdown both western laws abide to the Shari’a where a woman’s status in custody and support from her husband even after divorce depends on her agreement on the marriage contract.
Though it is common practice among Islamic marriages that prenuptial agreements would be drafted to protect the legal rights of a woman who will be entering wedlock, in the United States and United Kingdom, marriage contracts are seen as a trend now in protecting individual assets in case of marriage breakdown. Prenuptial agreements not only serve as documents that protect one party but both parties. It is drafted out before a couple has been married for once the they are married they are already considered one entity and thus the contract becomes void for there they become only one party. In order for contracts to be legally binding there must be at least two parties that agree to the contract’s terms and conditions. Prenuptial agreements also set guidelines and rules on how the marriage would go about. For example in Islamic marriages, polygamy is accepted even if in western countries such as the US and UK it is illegal. In the marriage contract the woman can stipulate that she will not allow her husband to have a second wife or if he does she agrees to such conditions. Second wives on this case may be granted the same legal rights of a first wife in the US and UK if they are immigrants but if the marriage of the second wife is done in US or UK grounds the wife will not have the same legal privileges as that of the first. One of the disadvantages of prenuptial agreements is that the interpretation of which may vary from one state to another which may cause stressed in its interpretation by local courts. In the US alone among its 50 states, the interpretation of Islamic marriage contracts during legal battles between a husband and wife varies from one state to another. Some states don’t even recognize agreements in the contract or the prenuptial agreement itself. In the UK, though in the past the local court has been strict on its implementation and interpretation of Islamic prenuptial agreements they have been more open to such interpretation and recognition of agreements as long as the plaintiff is registered in the English Law. Another disadvantage of prenuptial agreements are they may be just for formality’s sake because in some Islamic countries women are considered subordinates thus their rights may be over shadowed (Uhlman and Kisselburg 2007).
Where the state law of a western country is in conflict of the Shari’a, the latter will prevail but in terms of settling issues in front of a local court such as divorce settlements, financial supports and child custody, Islamic marriages are brought into the local courts. It has been the subject of many discussions in which for example the United States and United Kingdom recognizes the church and state as two separate entities and that marriage contracts of Muslims are considered more of a religious obligation in relation to the Quran rather than a civil act. Problems arose where in consideration to such civil and religious purposes are considered separately by state laws. Even though conflicts may arise in terms of Islamic marriages in western soil, state laws are followed as compared to that in Muslim countries, the settlement of legal issues can be dealt with the local state’s law but in consideration or religious practices.
Islamic Shari’a as Family Law of the World
Polygamy or the practice among Muslim men in acquiring as much as four wives in their married life as long as the man treats his wives equally is a common practice of Shari’a. In Muslim countries polygamy is legal with all four wives having the same legal status and benefits of the first wife but in western countries such as the US and UK, polygamy is illegal where the other wives do not hold the same legal benefits as the first wife (Mills). Though in the case of immigrants the other wives can be recognized under the law if the man has married his wives in a country where polygamy is legal and accepted (Uhlman and Kisselburg 2007).
A bride-to-be can stipulate in her prenuptial agreement regarding the status of their future marriage. If she is feels uncomfortable having a husband with many wives she can mention such in her marriage contract (Mills). The breach of such agreement can be a basis for the first wife to file a divorce. In western countries, polygamy is illegal thus the request would be spurious because men in the west are forbidden to have more than one wife (Mills). The second wife will not be recognized a legal wife and will be cut off of legal access such as child custody, alimony, spousal support and the like because the marriage by law is invalid. Interestingly, Muslim men who immigrates into the US and UK with more wives and who married his wives off western soil and in a Muslim country where polygamy is legally practiced can bring his wives to western soil and his wives would be recognized by the state law. These wives would acquire the same benefits the first wives married in the country enjoys (Mills).
Mahr is a dower given by the groom to the bride before or right after marriage. This can be a sum of money or a property that may serve useful to the wife. This is a woman’s right in Islamic culture where the Mahr can be used for the wife’s living expenses in case of divorce or whichever she pleases. The payment of the dower must be stipulated in the prenuptial agreement and the terms of payment (Leichter 2009). The wife can opt to get her dower right after marriage or can make arrangements to get half first and the next half upon the death of her husband or dissolution or marriage where her living expenses be shouldered by the husband. Western laws of the United States and United Kingdom do not prohibit women from looking after their interests but in the US according to the law, prenuptial agreements which “facilitate divorce or separation by providing for a settlement only in the event of such occurrence are void as against public policy” (Mills). In this case the US law forbids women to claim their dower in the event of divorce even if it was stipulated in her prenuptial agreement. Dowers are sometimes considered as the wives’ safe guard if it is differed for the husband may not opt to divorce her in order to prolong the payment of the Mahr (Uhlman and Kisselburg 2007).
Divorce in Muslim marriages is somewhat similar to those of the west but according to the Shari’a family law men can divorce their wives unilaterally without specifying any reasons of the separation while the wife though in general must have grounds in order to divorce her husband can request such privilege of unilateral decision making in her marriage contract (Leichter, 2009). Divorce may occur if differences between the couple are unable to be resolved but this has been considered to be the last resort for couples. According to the Prophet, divorce is the most detestable of all lawful things in the sight of God. The Shari’a family law may not be as egalitarian as that of the west where women can only divorce their husbands if they are recalcitrant and are very limited situation (Mills). Though in some cases wives stipulate her right to have the same unilateral power in prenuptial agreements most of the time the Shari’a is being followed where women have to show valid and legal rights to divorce their husbands or if they fail to do so they will forfeit their dower rights which is the source of their survival after the divorce (Leichter 2009). Some ground for women to divorce their husbands may be that of violence executed on them but they must be able to prove such actions by their husbands in order for them to legally separate from their husbands. This actions are very difficult to attain thus women in an Islamic marriage have very limited means in order to divorce from their husbands unless they stipulate and demand such rights to unilaterally divorce in their prenuptial agreements. Divorce according to Shari’a will only be valid if religious rituals are being performed by the husband in setting his wife free from their binding marriage. Even if in civil law a couple is already considered separated and divorce but without the religious practices performed they are still considered married. Comparing western marriages and that according to the Shari’a family law, western marriages are considered statues where the registration of marriages validates the union of the couple while in the Muslim context marriage is seen as a religious act thus even if the couple does not register civilly their marriage is still considered valid in contracts to western cultures that it is deemed void (Mills). The different natures of the validity of marriage present a problem in times of divorce. In the UK for example, individuals in an Islamic marriage must be able to register under the English law in order for them to take legal actions in settling marriage issues in court such as divorce (Khan 2003). Upon divorce settlements, the privilege of the woman lies in her assets where she is not obliged to forfeit assets she has acquired before, during and after the marriage. The wife enjoys the sole ownership of her properties even after divorce and the husband is oblige to provide financial support to the wife even after dissolution or marriage but the wife is restricted of child custody.
One of the rights of women in Islamic marriages is their right to financial independence which is stipulated in their marriage contracts. The sum of money they have accumulated before, during and after the marriage is solely their own and they have no obligation to provide for their husbands in cases of divorce or marriage breakdown (Mills). The Muslim law guards such principle that the wife’s property is hers alone and she is in no obligation to share such property unless stipulated in the prenuptial agreement. For the wife’s maintenance, the husband is responsible to provide on the other hand the wife is not obliged to provide for her husband (Uhlman and Kisselburg 2007). In the United States laws such as the division of properties in marriages can be in accordance to the wife’s financial independence rights where assets can be redefined as spouse’s property as either separate or community property. In accordance to the UK law such is also recognized where properties of both spouses can be considered as communal or separately as their own (Khan 2003). The importance of prenuptial agreements in this case is to further clarify the rights of the wife in her finances as this may sometimes be confused and overlooked with various interpretations. An example here is that Mahrs may sometimes be understood as equivalent to the wife’s maintenance allowance after marriage. Though this may depend on the clarity of the contract, Mahrs are fixed payments given to the wife right after marriage. Although this can be deferred and can be paid after the death of the husband or divorce, this can be separated from the living expenses the wife gets from her husband as spousal support.
The custody of children lies on the husband and his family after the breakdown of marriage. Although women has custody of children at a certain age, 7 years old for boys and 9 years old for girls, the husband and his family have custody of the children after the mentioned age according to the Islamic family law (Mills). The custody of children is taken into consideration where the status and situation of both parents are being evaluated. In such cases in accordance to the Shari’a, the father and his immediate family members have a greater chance of gaining custody of the children where finances are stable with the father as compared to the mother who is/ will be receiving spousal support from the father and men’s rights weigh more than that of women’s for according to the Quran the former is considered a leader thus being the bread winner (Uhlman and Kisselburg 2007). Unless stipulated in the prenuptial agreement such procedures will follow where the mother only has custody of the children at a certain age and after which the father gains full custody of the children. Such practices has been conflicted with that of the US and UK courts where the custody of the children can be decided equally in accordance to the financial and environmental situations of both the father and the mother and little attention is given to the family law of Shir’a (Leichter 2009). But because the Islamic family law is recognized more than that of the state law problems may arise presenting a conflict between state and religious beliefs and practices. Aside from financial capabilities, in settling the custody of the children, the environment is put into great consideration where Muslim environment is preferred by the Muslim court in raising the child or children. The Islamic law does not recognize western laws’ advices in child custody.
A woman’s right access proper education and employment can also be an issue stipulated in her prenuptial agreement where she is given permission to acquire the needed education for her personal development and secure a job and be employed to enhance her financial status. Traditionally husbands may or may not agree to the attainment of employment or higher education and this may present as a problem and discord in the marriage (Mills). In western countries such as the US and UK, women have been accorded to these rights in accordance to law but in some this may be difficult to acquire especially in traditional settings. If a woman wishes to restate her God-given right to education and employment she can include such clause in her marriage contract so as to gain approval from her husband to be on such actions she wishes to practice (Uhlman and Kiseelburg 2007).
Prenuptial agreements provide protection to women during wedlock especially in a conservative and traditional Muslim marriage where the final decision lies in the authority of the husband (Mills). These agreements safe guard the rights of women and allow them to have a voice in negotiating for what is theirs. Without marriage contracts there would be no clear agreement between the husband and wife and it would only cause unhappiness and discord in a marriage (Leichter 2009). Prenuptial agreements protect women in their rights in a sense that what they wish to happen in their marriages is outlines where their emotional states are being looked after by their right to state if they would allow their husbands to practice polygamy, the payment terms of their dower, the safe guard of their financial independence where their properties are theirs alone and they don’t need to provide support to their husbands but rather the latter provides for their maintenance expenses, grounds and constitutes for divorce in a marriage can also be cleared out among the couple where the decision for divorce can be also be practiced by the wife if she deems her husband to be unruly to save both the couple from the trauma of emotional battles and the wastage of time and money settling issues through lawyers, the right of the wife to gain custody of her children whether they stay with their father or with their mother whichever would support their sound growth and lastly a woman’s right to education and employment in further enhancing herself intellectually and financially can also constitute the protection of the rights of women.
Impacts of Prenuptial Agreement to Islamic Women Rights
The drafting out of prenuptial agreements in proceeding with Islamic marriages presents a great impact to the rights of Islamic woman around the world especially in the east where the rights of women are limited as compared to that in the United States and the United Kingdom. Prenuptial agreements give freedom to women in their married lives to do what they want such as bargain for their worth in terms of dower and during divorce, develop and broaden their mindset through traveling, attaining education and acquiring a job, business or any means of financial security through the exchange of goods or services, gaining custody of their children in times of marriage breakdown.
The impact of prenuptial agreement to Islamic women rights can be detected in the freedom women enjoy in terms of traveling or leaving the country and raising children. Marriage contracts set an outline for women who are going into wedlock to exercise the freedom of which they may be restricted upon with strict husbands. Many conservative women in a Muslim marriage located in Eastern Muslim countries are restricted in traveling just because their husbands forbid them to do so (Leichter 2009). They could not enjoy the sceneries of the world and could not even visit other countries because they do not have the consent of their spouses. This privilege can be attained by women through their prenuptial agreements where they can be allowed to go out on their own, with their husbands, family members, friends or even children. The marriage contract gives them the liberty to explore and discover parts of the world whether for leisure, business or medical purposes (Mills). Though Muslims in western countries tend to be open to this idea compared to their eastern counterparts still the stipulation of such desire can further clarify the attainment of freedom to travel. Another advantage of prenuptial agreements is they present to women their right to attain good education and may even proceed to further studies and acquire higher education (Mills). Though in traditional set ups like in Eastern Muslim countries this may be an issue to husbands where wives have to ask permission, the contract stipulates the God-given right of women to further enhance her intellectually in terms of schooling. In western countries such as the United States and the United Kingdom may not have difficulty enforcing such requests for educational systems are heavily promoted among the population in their fight against illiteracy, more traditional and conservative families may still adopt such practices that may hinder wives in gaining this right without the prenuptial agreement. Lastly, freedom can further be given to women who wish to raise their children in their own beliefs and methods. By stating in the prenuptial agreement that mothers would like to bring up their children in a manner they deem suitable without the interferences of in-laws, other family members and friends, prenuptial agreements gives mothers the free-hand in shaping their children on who they wish them to be (Uhlman and Kisselburg 2007). They would have the authority and prerogative to discipline their children in any way they wish, choose their children’s education and teach them manners (Uhlman and Kisselburg 2007). These three rights mentioned above about the freedom women acquire with the help of the drafting of prenuptial agreements before a woman weds in an Islamic setting impacts the women’s rights in a way since she has the authority to direct and live her life in a way she wants it to be and how she empowers, disciplines and serve as a mother to her children without interference from other individuals. The impact of prenuptial agreements has changed the course of how women in an Islamic marriage define freedom though in western countries such as the US and UK such impact is not clearly evident because the women are already westernized.
Prenuptial agreements have also impacted the financial status of Islamic women where the contract protects the wife’s finances in terms of the division of properties during death of her husband or during dissolution or marriage, retirement funds or daily maintenance expenses and also incomes earned from business ventures or jobs secured (Khan 2003). As the Shari’a states that a woman’s property, before, during and after marriage is solely hers alone and she has no obligations to support her husband, a woman’s finances is protected by the prenuptial agreement which further clarifies the implementation of such law according to the Islamic family law (Uhlman and Kisselburg 2007). The division of properties during marriage or upon separation in death or divorce, the property of the wife is still her own unless she specifies to share or give such to her husband and/ or children. The wife is also entitled to spousal support for her maintenance during marriage or in case of divorce the husband is still reliable in financing the wife as stipulated in the prenuptial agreement (Mills). These practices are common in Muslim Islamic countries of the east but may also apply to those in the west as long as agreements and clauses are clarified in the paragraphs of the marriage contract before marriage. The retirement fund of the wife will also be shouldered by the husband as stated in the Islamic family law which stipulates that he is responsible for the maintenance expenses of the wife (Mills). There are some cases during the breakdown of a marriage that the remaining dower of the wife is used for her survival and spousal support is no longer provided. These interpretations and agreements may vary depending on the two parties’ decisions. The accumulated income of the wife from business ventures or jobs secured belongs solely to the wife and the husband has no claim to such funds (Mills). Both in the east and west, such laws apply to women who are in an Islamic marriage. Their rights in terms of their financial claims are guarded by prenuptial agreements where it is further clarified the status and obligations of their husbands in supporting them financially and their claims to their assets and finances.
The practice of polygamy and divorce is of diverse matter in western countries such as the United States and the United Kingdom where the state laws of the said countries differ from that of Muslim countries where they exercise religious laws in dealing with family issues (Khan 2003). Polygamy may be legal in eastern Muslim countries but in the US and UK such practice is deemed illegal. Though polygamy is a common practice in Islamic marriages, wives have the right to request their husbands to be monogamous. Prenuptial agreements help fulfill wives request for monogamy where the act and practice of polygamy is illegal in western states (Leichter 2009). Prenuptial agreements impact Islamic women rights in the US and UK by giving women the right to be the sole wife of their husbands unless they are to result to divorce. In the US and UK having two wives is illegal for the second wife’s marriage is seen as non-existent unless the husband divorces the first wife. Prenuptial agreements further enhance the wives’ rights and they also go in line with the state’s laws. This also benefits women for they can file for a divorce on the grounds of their husbands breaching their contract by having a second wife and the husband can also be on the losing end in court battles for the state laws of the US and UK do not see polygamy as legal (Mills). Though conflicts may arise in the settlement of legal battles such as divorce cases because in the Islamic family law where state law is in contrast with the Shari’a, the latter shall prevail but foreign courts over the years have made the basis of their arguments and decisions on prenuptial agreements thus marriage contracts contribute to the decisions made by courts in settling legal battles (Uhlman and Kisselburg 2007). Where divorce is both legal in the west and in accordance to the Shari’a, the United States and the United Kingdom are keen on the registration of marriages where they are considered statues rather than a religious right as the Islamic law would perceive it. Prenuptial agreements enables women to protect her properties as well as her rights during divorces where she might lose her finances such as her dower, spousal support and even her assets acquired on her own together with the custody of her children if there was no prenuptial agreement specifying her rights. Settling divorces in the US and the UK may be solely based on state law but courts take into consideration prenuptial agreements between the couple to stipulate decisions (Leichter 2009).
Traditionally the custody of children belongs to the father and the mother can only have such custody from age 7 for boys and age 9 for girls but prenuptial agreements provide a venue for the mother to negotiate such agreements and may even given full custody depending on the financial and social situations of both the father and the mother (Uhlam and Kisselburg 2007). In the United States and the United Kingdom, the custody of the children is not solely based on the Islamic family law but courts also based their decisions on the situations the husband and wife is on. Prenuptial agreements help Islamic women gain equal custody as their husbands.
Conclusion
The practice of drafting prenuptial agreements in Islamic marriages has impacted women’s rights not only in the US and UK but around the world. The focus of this paper is on western countries such as the United States and the United Kingdom where the interpretation and resolution of Islamic prenuptial agreements present a conflict in both state courts of the said countries and the religious court to which the marriages contract is based upon.
Islamic women’s rights are empowered by prenuptial agreements in that they are given to opportunity to negotiate their terms in a marriage whether be their freedom to travel for business, leisure or medical purposes, their right to raise their children in a manner they wish and deem suitable and in further advancing their careers by attaining good education or employment. Though in traditional and conservative Muslim marriages such as those in the eastern Islamic countries such requests by women are somewhat seen as a bit radical, in western countries such as the US and UK these requests in the prenuptial agreement are very typical. In the US alone traveling is highly encouraged by the federal government to promote local tourism while in the UK, its membership in the European Union allow people to travel from one country to another without the hassle of visa processing and inspections. A woman’s right to raise her children in a manner she wishes possible is also a western concept where the interference of other individuals such as elders, family members and in-laws may strip the mother off her prerogative in deciding for her child. Though in eastern countries this has also been practiced, in western countries Muslim mothers enjoy such privileges even if they already practice such but prenuptial agreements further validate their rights. This impacts the mother’s image and ability in the eyes of her child and every other individual who can see how she molds her children. Being a mother having control over the growth and development of her children empowers women to be strong and capable in providing the needs of her children. Prenuptial agreements also help women attain good education and ability to seek out opportunities that may enhance their financial resources. Though traditionally wives must ask permission from their husbands to acquire proper education and schooling as well as the enhancement of one’s career in terms of business venture or employment, in the US and UK such practices are almost normal because every other individual gets goes to school and gets a job.
Prenuptial agreements also function as a safeguard for Islamic women in terms of divorce. Muslim men have unilateral decision making powers in which they can call off a marriage and file for divorce without stating any reason and the woman can just comply but on the other hand women cannot do anything about it. It is harder for women to prove the legal breach of her husband in order for her to file for a divorce but with prenuptial agreements women can now call for a divorce with as much power as her husband. In the western courts though the legality of Islamic marriages are being questioned for the systems of registration are different, divorce cases are being taken up by courts to settle legal issues.
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