This is an interesting case in that the court was asked to interpret an Islamic prenuptial agreement, which is called a “mahr.” A mahr provides an immediate and long-term dowry to the wife. So basically the husband pays the wife to marry him and again to divorce him. Interestingly in this case, the mahr provided that the amount at marriage was only $100 whereas at divorce it was $20,000. In my opinion, anything that costs $100 to get in and $20,000 to get out, should be avoided.
Obaidi (the bride) and Qayoum (the groom) were both children of Afghan immigrants. However, Qayoum is a U.S. citizen and Obaidi was from Canada. Qayoum had lived in the U.S. since he was three years old and was not accustomed to the Afghan culture. He considered himself “American first.”
At the engagement party, or the Nikkah ceremony, Obaidi, Qayoum, and a small group of friends and family all went into a room away from the rest of the party. Verses from the Koran were read and the parties signed the mahr. This ceremony was conducted in Farsi. Qayoum did not speak, write, or read Farsi. Qayoum also testified that he had not even heard the word “mahr” before the day of the ceremony. Obaidi and Qayoum both signed the mahr. As an aside: It’s never a good idea to sign a document in a language you don’t understand.
In the Afghan culture, the couple is considered married after the Nikkah ceremony, however the couple solemnized their marriage civilly in Whitman County. I wonder how often they have Nikkah ceremonies in Whitman County? 13 months later, the honeymoon is over, Obaidi files for divorce and requests the court to grant her the $20,000 pursuant to the mahr. The trial court concluded that Obaidi was entitled to the $20,000 and also awarded her over $8,000 in attorney’s fees and costs. Qayoum now appeals claiming that the mahr was not an enforceable contract or prenuptial agreement.
Believe it or not there is no case law in Washington interpreting a mahr! The Court turned to a New Jersey case that had determined first that deciding such an issue was not precluded under the doctrine of separation of church and state as the issue could be decided on neutral principles of law and not upon religious beliefs or policies. And second the New Jersey court determined that the mahr was a simple contract and all the elements of a contract were present and was therefore enforceable.
However, the trial court in Whitman County applied the Islamic law stating that the party initiating separation without good cause was at fault and thus must pay the mahr fee. This was error as Washington is a no fault divorce state. It doesn’t matter who is at fault. Next the Court of Appeals applied Washington’s contract laws and determined that there was no meeting of the minds as the mahr’s language was too vague. In addition, Qayoum was not provided an opportunity to consult with counsel before signing the mahr and he could not even read the document he was signing. Thus the mahr was not enforceable.
As to the attorney’s fees issue, I usually don’t get into the discussion of attorney’s fees which is at the end of a lot cases, but I had to quote the trial court in considering who would pay the attorney’s fees:
She has the ability to pay some, she makes about $15,000 a year; he makes about a hundred grand a year. It doesn’t take rocket scientists to figure out where I’m coming from on the proration there.
I bet this judge never thought these words would end up in a published opinion. No abuse of discretion on the attorney’s fee issue. NEXT!