Supreme Court, Nassau County, July 19, 2021

David William Teeter, Uniondale, for plaintiff.

Amina Rashad, Uniondale, for defendant.

Plaintiff (husband) filed this motion for summary judgment seeking an order holding the parties' mahr term of their nikah agreement invalid and unenforceable and requesting counsel and expert fees.

Defendant (wife) opposes the motion in its entirety seeking an order upholding the validity of the mahr agreement, payment of $50,000 to enforce the agreement, and counsel fees.

A nikah agreement is a mutual agreement signed by spouses during their religious marriage ceremony that is typically verified by two male witnesses and includes a mahr provision. (Allison Gerli, Comment, Living Happily Ever After in a Land of Separate Church and State: Treatment of Islamic Marital Contracts, 26 J Am Acad Matrim Law 113 [2013]; Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winner, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam L Q 639 [2007].) A mahr provision, or sadaq, is a term in the nikah agreement whereby the husband gives something of value to the wife. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winner, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam L Q 639 [2007].) The mahr provision functions to protect the bride's financial interests and independence and is typically only awarded in the case of divorce or{**73 Misc 3d at 424} upon the husband's death. (Id.) The amount of the mahr is typically negotiated by the spouses' relatives prior to the wedding, rather than by the couple themselves. (Id.) The mahr is usually paid in two parts; the first is paid immediately at the time of the religious ceremony and the second is deferred until one of the two previously stated occurrences. (Jay M. Zitter, Annotation, Application, Recognition, or Consideration of Islamic Law by Courts in United States, 82 ALR6th 1.)

At issue here is the enforceability of an unacknowledged deferred mahr that granted the wife $50,000 upon some unspecified occasion. The parties were married in a civil ceremony on March 2, 2016, in Queens, New York. Following their civil ceremony, on September 12, 2016, the parties were married in a religious ceremony where the nikah containing the mahr provision now in question was signed, and recorded, by the parties in front of two male witnesses, Mufti Abdul Rahman, imam of Al-Masjid Inc. who performed their Islamic ceremony, and all their guests. It is unclear, but not disputed, whether the husband ever paid an initial mahr amount to the wife in accordance with Islamic tradition. It is also unclear when the amount of the mahr was set and whether it was decided with or without the husband's knowledge and consent.

The husband argues that the parties' mahr agreement is invalid and unenforceable because it is not properly acknowledged in accordance with Domestic Relations Law § 236 (B) (3) which states: "An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded." Alternatively, the husband argues the agreement is invalid for a lack of consideration, for being manifestly unfair, and for impermissibly intertwining the court with religion. He asks that the certificate be declared null and void and is requesting counsel fees and expert fees.

The wife argues that the parties' mahr agreement is valid and enforceable as a legal entity distinct from a prenuptial or postnuptial agreement. Additionally, if the agreement is held valid, she argues it had proper consideration or was ratified by the husband despite a lack of consideration. Alternatively, she argues that even if the court considers their nikah a postnuptial{**73 Misc 3d at 425} agreement, it is enforceable because an acknowledgment is not required where there is alternative proof of signing through witnesses. Finally, she argues summary judgment is improper because there are genuine issues of material fact such as the presence of duress, the time, place, and manner of the mahr negotiation, the amount of the mahr, the expectation of the nikah, the benefits conferred in the marriage certificate, and the husband's expert testimony.^[FN1]

In reply, the husband reiterates the mahr's invalidity and unenforceability arguing against the cases proffered by the wife as controlling precedent.

Here, the husband argues the mahr agreement is invalid and unenforceable due to the lack of an acknowledgment in violation of Domestic Relations Law § 236 (B) (3). The husband argues that Matisoff and Galetta are controlling precedent as they collectively establish that a proper acknowledgment is an "essential prerequisite" to comply with the terms of Domestic Relations Law § 236 (B) (3) and that the document being signed by two witnesses, instead of being acknowledged, does not satisfy the requirements of Domestic Relations Law § 236 (B) (3). (Matisoff v Dobi, 90 NY2d 127, 132 [1997]; Galetta v Galetta, 21 NY3d 186 [2013].) The husband concedes that there are four similar cases, Badawi v Alesawy, O.Y. v A.G., Aziz v Aziz, and Avitzur v Avitzur, that the wife may try to use as ruling precedent to uphold the agreement. (Badawi v Alesawy, 135 AD3d 792 [2d Dept 2016]; O.Y. v A.G., 48 Misc 3d 1222[A], 2015 NY Slip Op 51190[U] [Sup Ct, Westchester County 2015]; Aziz v Aziz, 127 Misc 2d 1013 [Sup Ct, Queens County 1985]; Avitzur v Avitzur, 58 NY2d 108 [1983].) However, he contends that those cases are not controlling because: (1) the agreement in Badawi was upheld under the doctrine of comity which does not apply here as the parties' marriage and divorce took place in New York; (2) the [*3]agreement in O.Y. was never evaluated because the amount in question was de minimis; and (3) Aziz and Avitzur were decided before Matisoff and Galetta established a rule of strict enforcement on the acknowledgment requirement for nuptial agreements. (Badawi, 135 AD3d 792; O.Y., 48 Misc 3d 1222[A], 2015 NY Slip Op 51190[U]; Aziz, 127 Misc 2d 1013; Avitzur, 58 NY2d 108.) Therefore, the husband advocates for a "bright-line rule requiring an acknowledgment in every case [that] is easy to apply and places couples and{**73 Misc 3d at 426} their legal advisors on clear notice of the prerequisites to a valid nuptial agreement" as established by Matisoff. (Matisoff, 90 NY2d at 135-136.)

The wife argues that the court has the authority to enforce the mahr agreement under the precedent of Aziz, Badawi, and Matter of Saperstein, using the neutral principles of law approach to resolve this religious dispute without consideration of doctrinal matters. (Aziz, 127 Misc 2d 1013; Badawi, 135 AD3d 792; Matter of Saperstein, 254 AD2d 88 [1st Dept 1998]; Jones v Wolf, 443 US 595, 603 [1979] [defining the neutral principles of law approach as applying "objective, well-established" principles of secular law to resolve religious disputes without delving into religious doctrine itself].) Here, the wife points to the factually similar case of Aziz (127 Misc 2d 1013), in which the court upheld the parties' mahr agreement, stating, "the court recognize[d] that the Mahr, or Islamic marriage contract, is an enforceable document in New York, notwithstanding it was executed pursuant to religious or civil law." The wife then points to Badawi in which a Court enforced an unacknowledged mahr agreement as its own distinct legal entity, separate from a prenuptial or postnuptial agreement because it violated no strong public policy of New York and was signed by the parties, two witnesses, and the imam of the Islamic Cultural Center of New York. (Badawi, 135 AD3d 792.) Lastly, she argues that even if the court treats the mahr as a postnuptial agreement, it would still be enforceable because an acknowledgment is not required for nuptial agreements when there is alternative proof provided by subscribed witnesses in accordance with Matter of Saperstein. (Matter of Saperstein, 254 AD2d 88 [1998].) There, the Court held that "[t]he proof of execution prepared after the decedent's death by the attorney who signed the waiver as a subscribing witness is sufficient to comply with Real Property Law § 304." (Matter of Saperstein, 254 AD2d at 89.) The wife goes on to posit that as long as the subscribing witness's proof, executed after the execution, complies with the requirements governing the conveyance of real property, the proof will be sufficient to establish validity. Here, the mahr agreement was signed by three subscribing witnesses contemporaneously with the husband and wife so the wife argues either of the three witnesses may provide an alternative to the acknowledgment requirement of Domestic Relations Law § 236 (B) (3).

In his reply, the husband reiterates the wife's improper citation of Badawi arguing the mahr agreement there was not upheld{**73 Misc 3d at 427} because it was excused from Domestic Relations Law § 236 (B) (3)'s acknowledgment requirement but because the Court recognized the parties' Abu Dhabi divorce under the doctrine of comity which does not apply here. (Badawi, 135 AD3d 792.) The husband then echoes that the Court in Matisoff recognized no exceptions to Domestic Relations Law § 236 (B) (3) and since the essential acknowledgment requirement is absent, he calls again for the mahr agreement to be invalidated. (Matisoff v Dobi, 90 NY2d 127 [1997]; Galetta v Galetta, 21 NY3d 186 [2013].) Lastly, the husband emphasizes the specific consideration and rejection of Saperstein's holding in Galetta where the Court of Appeals found that Saperstein, which did not involve Domestic Relations Law § 236 (B) (3) nor an acknowledgment requirement, did not apply to marital agreements. (Galetta v Galetta, 21 NY3d 186 [2013].)

Courts in other jurisdictions have had conflicting views on the treatment and validity of mahr agreements, especially when faced with a constitutional challenge by one of the parties. The Free Exercise and Establishment Clauses of the First Amendment are often used by litigants in these cases to dissuade courts from making the decision to uphold religious marriage agreements [*4]like the mahr or the ketubah, a Jewish marriage contract, in "get" and "beit din" cases. These challenges have tended to fail but make compelling dissenting arguments. (See Avitzur, 58 NY2d at 116 [dissent arguing the enforcement of a ketubah would "necessarily violate the constitutional prohibition against entanglement of our secular courts in matters of religious and ecclesiastical content"].) More successful litigants have argued the precedent set in Jones v Wolf in which the Supreme Court approved the "neutral principles of law" approach. (Jones v Wolf, 443 US 595, 603 [1979].) This approach developed out of a series of cases involving property disputes with the church, but it has been applied in other areas of law relating to business contracts, torts, employment, and the type of private agreements at issue here. (Tilsen v Benson, 69 Conn L Rptr 241 [2019].) This approach was used by courts across the country to reach decisions in Odatalla^[FN2] (New Jersey), In re Marriage of Obaidi^[FN3] (Washington), Ravasizadeh v Niakosari^[FN4] {**73 Misc 3d at 428}(Massachusetts), and Avitzur^[FN5] (New York). The neutral principles of law approach prevents mahr agreements, and other private, religious marriage agreements, from being denied simply because they came about in a religious context allowing them to be enforced based solely on their ability to comply with the "objective, well-established," secular laws. (Jones, 443 US at 603; Odatalla, 355 NJ Super 305, 810 A2d 93; Tilsen, 69 Conn L Rptr 241; Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winner, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam L Q 639 [2007]; Allison Gerli, Comment, Living Happily Ever After in a Land of Separate Church and State: Treatment of Islamic Marital Contracts, 26 J Am Acad Matrim Law 113 [2013].) While courts have struggled at times to apply the neutral principles of law approach to mahr agreement disputes, due to a lack of familiarity with such documents and their vague terms, this approach seems to provide litigants with the fairest outcomes as long as courts remain mindful of the mahr's religious significance and overall purpose. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winner, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam L Q 639 [2007].)

Though the constitutionality of enforcing these agreements has been mostly settled by jurisdictions using the neutral principles of law approach, some jurisdictions have run into other issues with the enforceability of mahr agreements. (See Akileh v Elchahal, 21 Fla L Weekly D162, 666 So 2d 246 [1996]; In re Marriage of Obaidi & Qayoum, 154 Wash App 609, 226 P3d 787 [2010]; Ahmed v Ahmed, 261 SW3d 190 [Tex App 2008]; Zawahiri v Alwattar, 2008-Ohio-3473 [Ct App 2008]; In re Marriage of Dajani, 204 Cal App 3d 1387, 251 Cal Rptr 871 [4th Dist, Div 3 1988].) In those jurisdictions, courts have sometimes found the enforcement of mahr agreements to be against public policy due to a fear that enforcement would "facilitate divorce or separation by providing for settlement only in the event of such an occurrence." (Application, Recognition, or Consideration of Islamic Law by Courts in United States, 82 ALR6th 1, § 9; see In re Marriage of Dajani, 204 Cal App 3d 1387, 251 Cal Rptr 871 [4th Dist, Div 3 1988].) While this is a valid concern, it fails to take into account the purpose of the mahr—to protect the wife's financial interests in case of divorce or her husband's death and to "discourage divorce by limiting a husband's otherwise unlimited right to divorce at will" within {**73 Misc 3d at 429}the Islamic culture. (Tracie Rogalin Siddiqui, 2007 Schwab Essay Contest Winner, Interpretation of Islamic Marriage Contracts by American Courts, 41 Fam L Q 639, 655 [2007].)

Another issue discussed by some courts in the mahr case law has been the circumstances [*5]under which the mahr was signed. In at least one case, Zawahiri v Alwattar, the husband was not presented with the nikah agreement until two hours prior to the start of the parties' religious wedding ceremony. (Zawahiri, 2008-Ohio-3473.) Upon dissolution of the marriage, the husband argued the mahr should not be upheld because he signed the agreement under duress as he was too embarrassed and stressed to decline the mahr with guests having already arrived and without having the opportunity to consult an attorney. (Id.) The court agreed with the husband and held that the mahr was entered into as a result of "overreaching or coercion" and was therefore invalid. (Zawahiri v Alwattar, 2008-Ohio-3473 [2008]; see also Application, Recognition, or Consideration of Islamic Law by Courts in United States, 82 ALR6th 1, § 3 [explaining "(p)roof that a party entered into the Mahr Islamic prenuptial agreement under duress can be shown by evidence that the Mahr was not discussed until the day of the wedding, that discussions were hurried and took place while guests were arriving, and that the parties did not have an opportunity to consult with counsel before signing(,) that the groom was not told of the Mahr or its details until the time of signing or that he could not understand the negotiations or agreement because they were in a foreign language"].)

Finally, a Texas court adjudicated the enforceability of a mahr agreement where the parties were already married in a civil ceremony prior to their religious ceremony when the mahr was signed. (Ahmed, 261 SW3d 190.) In Ahmed, the parties were married in a civil ceremony and had their religious ceremony six months later when they signed their nikah agreement containing a deferred mahr provision of $50,000. (Id.) There the court examined the parties' nikah agreement as a premarital agreement and because the Texas Family Code defined premarital agreements as those made by the parties in anticipation of marriage and Texas does not distinguish between civil and religious marriage ceremonies, the parties were already married and the court would not uphold the nikah agreement as a premarital agreement and the case was ultimately remanded to determine the mahr's validity. (Id.)

New York courts have not specifically addressed the validity and enforceability of unacknowledged mahr agreements when{**73 Misc 3d at 430} all the proceedings have taken place in New York. But, even if the New York courts had adopted the "neutral principles of law" approach and applied it to the parties' mahr agreement, it still could not be upheld due to the lack of an acknowledgment. The language, history, and subsequent New York statutory law of Domestic Relations Law § 236 (B) (3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement. Accordingly, it is hereby ordered that the husband's motion for summary judgment is granted and the parties' mahr agreement is not enforceable and is deemed void.

Counsel Fees

Both parties are requesting reasonable counsel fees for having to file and prosecute this action. The husband is seeking additional expert fees for having hired an expert to prove his claim.

However, as the counsel fee provisions of a matrimonial action do not apply to plenary actions, both parties' requests for counsel fees are denied.

All other requested relief, not specifically addressed herein, is hereby denied.