About To Be Married? Consider Taking Your Nikah Contract To An Attorney First
Islamic marriages impose both social and legal responsibilities on a couple. This is evident from the very beginnings of a marriage, during which the nikah contract is negotiated and signed. However, in many cases, the families of the bride and groom actually negotiate the nikah contract according to traditions within their social group, rather than thinking ahead to its enforceability under U.S. law. Here is what you should know.
You need to get an official marriage license.
You cannot rely on the nikah contract to ensure the validity of your marriage under U.S. law. Not every couple understands this and some may not realize that, without a license from the state, their marriage is invalid. If you return to a country of origin for your wedding, it is important to make sure that you get a legal, not merely religious or customary, authorization for the marriage from the country you are in. This can also present problems for couples that are U.S. based but whose extended family live overseas—they may not realize that they don't have the proper documentation for their marriage upon their return to the U.S.
If you don't have the right documentation, it could present problems down the line if you are asked to prove your marriage. For example, in some states, a wife's ability to sue on behalf of her injured husband (or vice versa) in a personal injury or wrongful death claim would be curtailed because of the legal invalidity of the marriage. It could also affect future inheritance rights, should one member of the couple die.
The nikah contract could be unenforceable.
Any Islamic couple in the U.S. should have their nikah contract evaluated for enforceability prior to the marriage. A traditional contract might not be enforceable should the couple separate. Nikah contracts are essentially viewed as prenuptial agreements. One of the reasons that a nikah contract can fail to pass legal muster centers around the issue of financial support for the wife, known as the mahr ar sadaq, if either party eventually seeks a divorce.
Islam gives the wife the right to a certain amount of money, in keeping with her husband's income, should the couple divorce. In some cultural traditions, however, it's considered rude or a sign of bad faith to request more than a nominal amount. A court could simply consider a nominal amount legally unconscionable. There could also be problems with its enforceability if either spouse felt pressured into signing the nikah or did so without reading it. Many courts won't enforce a contract that wasn't fully examined by both parties prior to signing.
For more information, consider consulting with an islamic attorney who is familiar with Islamic marriage laws and customs and who can help you make sure that you are also compliant with U.S. marriage laws as well.