A case of mistaken identity: The wrongful classification of Islamic marriage contracts as premarital agreements in New York. (11th December 2022)

• Record Type: Journal Article
• Authors: Sferra, Angelina
• Is Part Of: Family court review. Volume 61:Number 1(2023)
• Page Start: 175
• Page End: 188
• Publication Date: 2022-12-11
• Subjects: divorce -- DRL § 236(B)(3) -- enforceability -- Islam -- Mahr -- marriage contract -- New York -- Nikah -- marital agreement -- religion -- unacknowledged; Domestic relations courts -- United States -- Periodicals; 346.7301505
• DOI: 10.1111/fcre.12697
• Languages: English
• ISSNs: 1531-2445

Abstract

Abstract: New York precedent has mischaracterized Islamic marriage contracts, or nikah agreements, as premarital agreements. Nikah agreements are not premarital agreements; they are contracts. This mischaracterization has subjected nikah agreements to the acknowledgement requirement codified in N.Y. DRL § 236(B)(3) which has incorrectly been used to strike down valid contracts which Islamic litigants rely on. To prevent the effects of this mischaracterization, this Note suggests to New York appellate courts that a recharacterization of these agreements as contracts would prevent further confusion amongst the lower courts and allow for clearer, more uniform decisions. Key points for the family court community: Islam is a major world religion with 1.9 billion followers globally. N.Y. DRL § 236(B)(3) contains an acknowledgement requirement for all marital agreements but acknowledgment is not required in the Islamic marriage tradition for the creation of a valid marriage. Matisoff v. Dobi and Galetta v. Galetta have established that marital agreements must strictly comply with N.Y. DRL § 236(B)(3)'s acknowledgment requirement without exception. New York courts have misidentified Islamic marriage contracts as premarital agreements subject to the acknowledgment requirement of N.Y. DRL § 236(B)(3). The secular terms of an Islamic marriage contract may be enforced under the neutral principles of law approach, approved in Jones v. Wolf, without having to satisfy DRL § 236(B)(3)'s acknowledgment requirement if they are reclassified as contracts.