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No-Nuptial Agreements: Maybe Next Time, Don’t Get Married

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 “Nikah is part of my sunnah, and whoever does not follow my sunnah has nothing to do with me.”

–Muhammad ṣallallāhu 'alayhi wa sallam (peace and blessings of Allāh be upon him), Narrated by Aisha raḍyAllāhu 'anha (may Allāh be pleased with her)

Many Muslims have experienced marriage, then suffered a subsequent divorce as a financial, emotional, and social meat grinder. Some critics have noted the divorce system seemingly exists primarily to benefit itself; the lawyers: mental health experts, investigators, forensic accountants.

They form an entire industry dedicated to extracting the wealth of a disintegrating family, often forcing the middle class or working class into poverty and bankruptcy. All of this happens without any noticeable benefit to society. It’s a self-licking ice cream cone.

For many, divorce happens multiple times. A divorced person who gets remarried is more likely to get divorced again.

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While men often complain about how the “family court” system is against them, the reality is that women often bear the financial brunt of divorce. Divorce is more likely to drive women to bankruptcy than men.

After one or two divorces and a few lost years of retirement savings or a decade or more of home equity, another “marriage” starts to look downright irrational. My advice to such people: stop getting married, at least under state law. Get a nikah and a “no-nuptial agreement” instead. Allow me to explain.

Fun with Words

It is impossible to have a meaningful conversation about virtually anything unless we have a common understanding of the meaning of words we are using.

In law, even ordinary words have definitions that defy conventional understanding or even common sense. Basic familial terms like “son,” “daughter,” “father,” and “mother” have state law definitions that are different from what those words mean in Islam or our understanding. Under state law, “parents” can adopt adult “children” a similar age to them or even older, and have the same status as a biological child. In Islam, an adopted child is not the same as a biological child and does not have rights to inheritance in Islam.

In law, even words like “life” and “death” don’t always mean what you think they mean. A living person can go to court to dispute his death, demonstrate he is living, breathing, speaking, and everyone agrees he is the “dead person” in question, yet, he is ruled legally dead. Famously, corporations are legally people and are immortal.

Law is not the same thing as truth.

Similarly, it is folly to conflate nikah, the thing that exists in Islam, with marriage under state law. In different states, rules for who and under what circumstances people can get married can vary. One thing that all the state law definitions have in common is that they are not marriage in Islam.

What is Marriage?

For marriage, there is a state law definition, there is an Islamic definition, and there is the definition that the individual married couple has. Under state law, two men can be married to each other, but three men cannot be. In Islam, marriage (let’s call it nikah to be more precise) is a halal social and sexual relationship, and there are rules in the fiqh that are different from state law.

Under some state laws, “secret marriages” with no witnesses or publicly available registration are part of the law and commonly used. In Islam, there is a witness requirement for nikah. None of the rules in Islam require the state’s approval for nikah.

The third definition is how each couple sees their marriage. It is a flexible institution. To the extent it is an economic, social or familial partnership can vary widely. Couples may live together or apart. They may have one income or two.  They may share the same social circles or share none of them. The variations are endless.

Domestic Partnerships

For most of the history of legal marriage in the United States, marriage can only be between one man and one woman. States started allowing for “domestic partnerships” to give some “benefits” of marriage to same-sex couples, like employer health benefits and hospital visitation.

In many instances, these were available almost exclusively to same-sex couples, even after same-sex marriage became part of the law in all states. However, as of January 2020, California opened up domestic partnerships to everyone, including different-sex couples.

As a practical matter, domestic partnerships are simply state-sanctioned marriage by another name. It is notable though some jurisdictions may have limited domestic partnerships that are something less than marriage. In most states that have it, the same family law system, for good or ill, that comes with marriage under state law is also true of domestic partnerships.

While domestic partnership combined with a nikah is available to Muslims in states where it exists, there is no real advantage to using it.

No-Nuptial Agreements

For decades now, in the United States, there has been no taboo against men and women openly having sexual relationships with each other, living and raising families together outside marriage. Courts have long recognized these people should have contractual rights with each other.

When a man and women live together, those involved may be gaining something and giving something up. So if a man promises a woman something, and the agreement is not founded merely on sexual services, the state should enforce those promises, not in family court but civil court.

Marvin started it all

The principle case that established this is the California case of Marvin v. Marvin in 1976. A couple broke up, but the woman wanted to enforce promises made to her by the man. The man felt such a commitment should not be enforceable because, among other reasons, he was legally married to a completely different woman when this non-marital relationship started. Under California law, at the time (abolished by the time the case got to the court), this was criminal adultery.

No-nuptial agreements (sometimes called cohabitation agreements or Marvin agreements) can be used by couples when they want to have enforceable contracts but do not want to subject themselves to the family court system or the family code. They can include provisions of mahar, sharing expenses, equity as well as dispute resolution processes like arbitration and mediation.

The couple can also document limits on what they agreed to to what is in writing. For example, during a breakup, one party may be able to claim an oral promise the other party never made and potentially have it enforced in court. A written agreement protects both parties and the understanding they had when they entered into the relationship.

These agreements have a broad utility for many different kinds of couples. However, for some couples, the main benefit would be documentation that nobody is under the illusion that this is a marriage under state law. It is a private contract between two individuals.

Example of a No-Nuptial Agreement

Salma, 58, does a nikah with Sheher Ali, 62. They also create a no-nuptial agreement. Sheher Ali is a widower, and Salma is a divorcee. They both have their separate assets, including their own homes. Each has adult children and young grandchildren. Both want to put their adult children at ease that this relationship does not exist for predatory financial reasons – a common fear when parents marry later in life.

Salma, 58, does a nikah with Sheher Ali, 62. They also create a no-nuptial agreement. Sheher Ali is a widower, and Salma is a divorcee. They both have their separate assets, including their own homes. Each has adult children and young grandchildren.Click To Tweet

Salma and Sheher Ali do not plan to live together, which is common for couples their age. They mostly pay for their expenses themselves. They may spend the night at each other’s homes whenever they want but will split time with their separate children, grandchildren and social circles. Sheher Ali pays for joint vacations and outings. He agreed to a mahar. Both agree in writing they did not marry under state law.

Sheher Ali and Salma can still call each other husband and wife, since that is true for them and everyone they know. Both keep all of their finances separate, and each does their independent estate planning where they name each other as partial beneficiaries of their estates as required in Islam. The two also complete HIPAA forms allowing each to see the other’s private medical information and name each other in Advance Healthcare Directives so they can make healthcare decisions for each other.

Legal Strangers

Unmarried couples are “legal strangers.” Doctors won’t share healthcare information. Islamic spouses don’t get an inheritance from a no-nuptial agreement spouse by default. They don’t get things like tenancy by the entirety, community property, or elective shares in places where such things exist. As I described above, though, this can be remedied. However, as I described in the example above, the “legal stranger” aspect of the relationship may be more of a benefit than a downside in some cases.

Some “benefits” of marriage under state law are against Islamic principles.  For example, some state laws that provide for “elective shares” are diametrically opposed to the Quran’s share of inheritance.  Muslims must follow Islamic rules of inheritance anyway, which are different from default state rules, so being under state law is no special advantage. Even with proper planning, the downsides of the “legal stranger” problem still may come up in extraordinary contexts, however, such as lawsuits.

Immigration and Taxes

Another concern is that employee benefits to spouses and dependents don’t generally extend to those with no-nuptial agreements. Immigration law does not allow a path to the United States through the “family unification ” process for those with a no-nuptial contract. Marriage under state law (or the law of a foreign country recognized in the United States) may be the most practical solution in such cases.

In some cases, state-sanctioned marriage may lead to lower taxes. Other legally married couples may experience the so-called “marriage penalty” and pay higher taxes than couples with a no-nuptial agreement. Couples may often find they will pay less in taxes with a no-nuptial agreement than they would if they were married under state law.

Prenuptial and Postnuptial Agreements

One may wonder, to avoid the “meat grinder” of the family court system, why not just get a prenuptial or postnuptial agreement? It’s accurate that in general, having such arrangements are superior to not having them. These agreements offer greater certainty, though by no means total confidence, on how a divorce would end. There are disadvantages to such an agreement over no-nuptial agreements, however. A big one is that divorce is still in the family court system.

Many Muslim men, especially immigrants, may perceive cultural biases cause a stacked deck against them in family court. The nature of these agreements may make this perception worse. Sometimes, courts treat prenuptial and postnuptial agreements with a presumption of coercion. It is different from an ordinary contract. The family court system is often free to be more paternalistic and make a husband prove he did not force his wife to sign a document.

The Uniform Premarital Agreement Act, which will be worded differently in the different states that adopted it, provides for a process to make these marital agreements harder to defeat. However, the process is perhaps arguably more expensive, cumbersome, and awkward for a couple than a no-nuptial contract. Talking about a prenuptial agreement with a fiancé may be more uncomfortable than bringing up a no-nuptial arrangement and nikah. Without a state-sanctioned marriage, a written agreement is essential. Many people perceive the pre-nuptial and post-nuptial agreements as both optional and, perhaps unfairly, as a sign of mistrust.

Custody and Child Support

Unfortunately, there is no agreement you can come up with that will pre-settle child support and custody. A judge will decide those things.

It does not matter if you have a “plain vanilla” marriage governed entirely by your state’s family code, a prenuptial agreement, or a no-nuptial agreement. Children are not parties to such a contract. No court anywhere will subject a child’s care and welfare to such things.

For custody and child support, courts in family court will use the sometimes hard to define standard of “best interests of the child.” One Massachusetts family law attorney in a popular divorce documentary cryptically joked that she called children in the system  “little bags of money.” They are often a significant reason family law cases are so profitable for lawyers, mental health professionals, investigators, and everyone else.

No Protection for Poor Life Choices

A good rule to follow is never to do nikah with a person capable of having children unless you are sure she or he can be trusted to raise your future children, and you have made peace with making child support payments to this individual if your relationship ends. If you have a child, you may be suck with a child support order. There is no getting out of this one.

As an Islamic estate planning lawyer, the most important advice I can ever give anyone is not to get a proper estate plan. It is not to get a good lawyer. Of course those things are good, indeed no-brainers, but they have limits. The most important advice is to choose a spouse wisely. If you fail here, there is no law, no lawyer or document in existence that can turn back the clock. A no-nuptial agreement may make a future breakup easier than a family court divorce. There is still no guarantee it won’t be a complete mess anyway. Good documents are never a substitute for poor life choices.

“The Law of the Land”

Islamic institutions like masajid are conservative don’t like taking needless risks, as they should be. Many will not officiate a nikah unless there is a marriage license. They usually will not officiate bigamous marriages, on account of it being illegal.  Of course bigamy, like marriage, has a specific legal definition under state law. One almost universal refrain is that as Muslims we need to follow “the law of the land.”

No-nuptial agreements are in full conformity with the 'law of the land.' It is not a marriage under state law. Nobody is claiming that it is. Limiting nikah to marriage under state law not based on Islam.Click To Tweet

But what if that term did not mean what you think it means? No-nuptial agreements are in full conformity with the “law of the land.” It is not a marriage under state law. Nobody is claiming that it is.  Limiting nikah to marriage under state law not based on Islam. Recently, the Islamic Institute of Orange County, a large masjid in the Los Angeles area, changed its nikah officiating policy. Instead of always requiring marriage certificates, they will also recognize no-nuptial agreements.

Masajid Should Welcome No-Nuptial Agreements

Masajid should have standardized policies and procedures in place. Every masjid should have carefully considered policies to protect the vulnerable and the institution. No masjid wants to open themselves up to a “drive-by nikah” or other nonsense. One policy may well include mandating a no-nuptial agreement when there is no marriage certificate. There is no reason to believe one protects people and institutions better than the other.

Nikah is a vital sunnah for us. It is not something that should be in the shadows, secret, or something shameful. It is fundamental to how we organize our families and communities. When it’s done right, it helps us strengthen our iman, bring us closer to our communities and our loved ones. State definitions of words should not always be your guide to right and wrong.

It is appropriate that Muslims want to do the sunnah of nikah at the masjid, publicly and with friends and family watching.  We should recognize and celebrate every new couple that has done a nikah in our communities. Never mind the state has not sanctioned it.

The state statute book has its definition, we have ours.

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Ahmed Shaikh is a Southern California Attorney. He writes about inheritance, nonprofits and other legal issues affecting Muslims in the United States. He is the co-author of "Estate Planning for the Muslim Client," published by the American Bar Association. His Islamic Inheritance website is www.islamicinheritance.com

5 Comments

5 Comments

  1. Avatar

    Fritz

    February 10, 2020 at 8:47 AM

    Great article. Men get completely fleeced in the Western divorce system – indeed its one of the prime reasons that so many are walking away form this institution.

    We need an alternative that protects the wealth of men and their rights.

    • Avatar

      Fahd Khan

      February 17, 2020 at 12:23 AM

      Any resources on what our scholars say about this? not much info is given on divorce procedures by our teachers/imams…

      It’s all very private for some reason. Like a Divorce A to Z course. Something to bridge the gap between fiqh and reality

      • Avatar

        Fritz

        February 22, 2020 at 10:16 AM

        *SOME* scholars don’t talk about this because they are afraid and have to keep their female audiences happy.

        Whether male or female its difficult to justify how anyone can just walk out of a marriage and boot out the other spouse and snatch half of their wealth. With the advent of same sex marriages this absurdity is becoming even more evident.

        Its a sad fact but our scholars sometimes are in fear of speaking the truth and giving simple advice. The knock on effect on marriages is dangerous as many men will just follow the Western ways of casual dating and avoiding commitment (as why would you want to expose yourself to financial ruin??)

        This is why this article is so important (especially as there are PLENTY of non-muslim sources that are now shedding light on these behaviours.

  2. Avatar

    Basil Mohamed Gohar

    February 19, 2020 at 8:56 PM

    I find myself at a complete loss as to how to begin. With all due respect to the author, I find myself at a loss at where to appropriately begin. I am not familiar with his record or scholarship, so I apologize if this out of line.

    We are dealing with a less-than-perfect set of circumstances in the West. I don’t think there’s a Muslim that could disagree with that sentiment. But the suggestions in this article seem to take a situation that may make sense in a very narrow case, in a very narrow location (most examples cited at in California) and applying it in the general case as if this would work in most places. I strongly disagree with this and think it’s very impractical.

    I saw so many situations in administering a masjid over six years that, flawed as it may be, sometimes the legal system is the only method by which marginalized communities, such as the non-English-speaking wives in cases of divorce, can have a hope to get their rights. The cases of women being thrown out on the street at the whim of their husbands is too numerous. Yes, I have also seen tortuously bad cases where the husband is the victim and the system eviscerates him. Both cases are, sadly, so frequent due to the distance many Muslims themselves are from both understanding and practice of our deen.

    Legal rights of spouses are difficult, sometimes, to maintain, and there are already so many factors that couples need to keep track of, but this is adding a whole layer of complexity on top of that. While legally, spouses have many rights automatically that are consider convenient and beneficial, a “no-nuptial” will introduce so many ambiguities at so many important stages in life that I am left to wonder if an convenience was saved. The author already listed several extra documents that have to be followed-up on (HIPAA, for example), but that’s just scratching the surface. While it is true that the nature of marriage in the US is definitely shifting in some ways, it is still a largely present and understood phenomenon, and will be for some time.

    To place the onus further on our poorly-managed and under-resourced institutions (i.e., the masaajid) also seems to be quite in contradiction to what is actually practicable in most cases. The masaajid struggle sometimes to keep themselves open, and in general, I don’t think they can sustain this as a rule. I am not, of course, referring to the bigs masjids with generally stable communities where the board consists of Ph.Ds or scholars or others of higher levels of achievement. But these are not, in fact, the majority. Quite the contrary. Requiring a marriage certificate avoids a whole swath of problems that masaajid are just simply not equipped to handle. The advice advocated here could only make sense if masaajid also had legal staff on hand to handle this novel-to-most legal contract. And that’s pushes the situation even further out of what’s practical.

    If I seem to be overly cynical, it is because I have seen first hand how immature the Muslim community is in the US in many places. There are definitely places where this might work, but I feel the author has greatly simplified this and I argue that there’s a mountain of unaddressed factors. I therefore feel it is irresponsible to advocate this as a step that our young or old people should seriously consider. It simply is not fully baked.

    I fully agree with the sentiment that the most important factor to take into account is the actual choice in spouse and the methodology in how to arrive at that choice, and I think that this is where the efforts need to be focused. A fringe legal nuance is not the solution to marriage and divorce problems in the US in my humble opinion. The doors of problems that are closed open the way to far more.

    • Avatar

      Ahmed Shaikh

      February 20, 2020 at 12:56 AM

      Thank you for engaging with the article and providing your thoughts. A few general responses:

      1) I am a California lawyer, and Marvin is a California case. However, it is influential throughout the United States, and virtually every lawyer who has a nodding familiarity with family law or estate planning knows it. Cohabitation agreements can work nearly everywhere in the United States. I don’t discuss “the West” since I don’t know that the systems in the United States (and states can be quite different from each other in many respects) is not mutually intelligible with much of Western Europe. So, readers, there may not be very interested in this article. It is part of a trend in the United States going back 50 years where couples are choosing not to be married under state law, yet maintain secure contractual legal rights. For many demographic groups, it is more common than marriage.

      It’s perhaps naive to believe state-sanctioned marriage has special protective powers for the marginalized. A spouse with more money is often getting the better deal. A lot of litigation has nothing to do with truth or justice; it is like a war in that it is about attrition. You destroy your opponent because you can afford to bleed more than the other person.

      As I pointed out in my article, marriage recognized in the law is the only way to get family unification in the immigration process. However, for most of the working poor in the United States, marriage is becoming far less common and achievable.

      Here in the Los Angeles area, most of the well-established Masajid require marriage certificates. Masajid that serve the poor don’t often have such policies, and I have seen some that will officiate nikahs for all comers. My suggestion is that Masajid be more open to nikah with an alternative agreement rather than merely a marriage certificate. I don’t think the Masajid need to hire lawyers to draft contracts. That would be silly, and you seriously misread my article if you think I am suggesting Masajid equip themselves with teams of lawyers. The parties can negotiate their contracts. Don’t overcomplicate it. My push concerning the Masajid is not to dogmatically focus on marriage certificates when alternatives exist. You may not like the other options, but it may work for others.

      You do speak of “a whole swath of problems” that a marriage certificate solves, but you do not name them. You also don’t address the “mountain of unaddressed factors” in a no-nuptial agreement but don’t seem to explain why someone cannot draft an agreement to address those factors.

      Even with marriage certificates, you may need side agreements anyway. For example, many eastern states with common law traditions have forced share provisions that contradict Islamic inheritance rules. So if you want to do marriage right, you need to come up with legally enforceable agreements to get out of state default rules.

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