ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Sunday, August 27, 2006

Pre-Nuptial Negotiations: Re-writing Religious Tradition?

Civil marriage is often described as a contract, though the description seems more metaphoric than legal.  However, some religious traditions do actually include the signing of a marriage contract that is intended to bind the parties. For example, it is Jewish tradition that the marrying couple signs a Ketubah, which is a contract that sets forth their responsibilities to one another. There are varying texts, ranging from very traditional to, for example, versions rewritten to express more egalitarian beliefs.

Today, the AP reports (via the Grand Forks Herald) on American Muslim women who negotiate the traditional Muslim marriage contract to “help them assert rights under religious law that long have been played down by men.” An excerpt from the article:

…. Advocates contend their approach is well within Islamic law, even though skeptics say the interpretation is too influenced by Western thinking.

The contract is especially useful in the United States, where Muslims come from a variety of ethnic backgrounds and follow different customs and levels of observance. The document can accommodate views ranging from liberal to conservative.

Karamah, an organization of Muslim women lawyers based in Washington, is developing a "model" marriage contract that can be adjusted to meet the requirements of family law in different parts of the country, said Azizah al-Hibri, a founder of the group, whose name means "dignity" in Arabic. In the United States, civil law governs divorce, but judges have taken Muslim marriage contracts into consideration, sometimes viewing them as prenuptial agreements.

Al-Hibri, a law professor at the University of Richmond, Va., said the contracts also help couples prepare for the challenges of married life.

"Couples need to define their relationship as they enter the marriage, so that they do not get disillusioned later," al-Hibri said. "They need a meeting of the minds on what their family life will look like. The contract helps them do that by discussing the issues up front."

[Meredith R. Miller]

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