Sharia Series; Mahr and the English court system.
Mahr (sometimes referred to as mehr) is an obligatory gift provided by a husband to his wife at the time of an Islamic marriage. There is no set amount prescribed, however the mahr is usually paid in the form of gold, money, jewellery or a specific chattel such as a car. Some schools of thoughts in Islam also have the view that a benefit or service is permissible to be offered as mahr.
The obligation of payment of mahr in Sharia law derives from the Qu’ran and is referred to in Surat 4 as follows:
And give to the women (whom you marry) their Mahr (obligatory bridal money given by the husband to his wife at the time of marriage) with a good heart, but if they, of their own good pleasure, remit any part of it to you, take it, and enjoy it without fear of any harm (as Allâh has made it lawful).
The mahr can be paid immediately (muajjal) and provided to the wife at the time of the nikah (marriage contract) being complete. Alternatively, the mahr can be agreed to be deferred (muakkar) and postponed until a later date. Some Muslim couples will opt for the mahr to be split, with part provided at the outset of the marriage, and part to be delayed until a particular event such as divorce or death of the husband. In any event, the mahr is the property of the wife and cannot be demanded to be shared by her husband, family or any other party.
Often, mahr is referred to as a dowry. Historically, in some cultures, a dowry is a gift demanded by the groom’s family provided by the bride’s family as a form of security that their daughter will be looked after in her new home. Due to the stresses caused to families by such arrangements, this form of understanding has been criminalised in some jurisdictions, such as India, under the Dowry Prohibition Act 1961 which makes it a criminal offense for any party to a marriage to give or receive a dowry. It’s therefore important to understand the key differences in terminology and arrangements between a mahr and a dowry.
Mahr on divorce
There are laws in Sharia regarding the mahr on divorce and how it is to be distributed. Although this is a complex area and requires specialist advice, for ease, I have summarised some of the main points for consideration below;
If the divorce takes place prior to consummation of the marriage, the wife is entitled to half of the mahr if it had already been specified;
If the husband pronounces the divorce, the wife is entitled to retain the mahr in full. If any amount is outstanding, the husband will be liable for the outstanding balance;
Where the wife seeks a divorce (through the Khulla process for example) then the mahr would be forfeited to the husband.
Position of English Courts
An Islamic marriage which has complied with the necessary customs and practices in a state which recognises it to be legal may also be recognised as a lawful marriage in the jurisdiction of England and Wales, under the Lex Loci Celebrations principle (which means “the law of the place where the marriage is celebrated”). However, the terms of the nikkah contract itself, including the mahr provisions, are not automatically recognised within financial remedy proceedings and therefore the position provided by the courts at the outset is that the mahr forms part of the marital pot as with any other asset and is to be divided as such.
The family court will often refer such matters to the civil court to be dealt with, as a contractual claim.
Shanaz v Rizwan [1964] 2 All ER 993
In this case, the parties married in India in 1955 and included the written terms of the mahr arrangement in their nikkah contract. The husband divorced the wife in 1959 and the wife brough a claim in England, where the parties resided. The wife sought remedy in the civil courts for breach of contract and was successful in being awarded the £1,400 owed to her by her husband as it was an outstanding muakkar (deferred) mahr.
Uddin v Choudhury [2009] EWCA Civ 1205
Similarly, in this case, the county court recognised and validated the contractual arrangement reached by the parties through the nikkah and dismissed the husband’s claims for recovery of gifts, with the judge noting that the mahr was provided as an absolute gift.
Whilst it is clear that the civil courts may deal with matters of mahr where there is a written nikkah contract, a nikkah contract is not always produced in writing, nor is it always possible to retrieve a copy. The question therefore remains open as to whether an oral contract for mahr will be considered in the same way, by the civil courts. A landmark ruling is awaited to consider this topic in detail and the position of the judiciary. Should the outcome of such a case be that a bride is entitled to her mahr (with just an oral contact), a precedent will be set that may allow brides to demand their mahr in full without the hurdle of retrieving a written nikkah contract.
Pre-Nuptial Agreements
To avoid such uncertainty, Muslim couples may wish to enter into a prenuptial agreement which sets out the pre-arranged provisions relating to the mahr. Although it doesn’t guarantee an outcome as agreed, the courts have increasingly become more accepting of prenuptial agreements as proof of a couple’s intentions for the division of assets, where such agreements have been properly entered into with the benefit of legal advice.
As Sharia law also sets out clearly the division of assets following a divorce, with regards to financial remedy the couple may also wish to address this within their prenuptial agreement and draft the terms with a specialist lawyer so that they comply with Islamic requirements.
I address marriage ceremonies and the proposed reforms in my November 2023 article in this series on Sharia matters in English and Welsh family law.
