Saturday, July 19, 2008

Texas Family Code & Islamic Marriage

Arranged Marriages, Religious Marriages, Dowry, etc.
How should Texas law be applied to address alien matrimonial customs and practices?

Houston being an international city with a large foreign-born population, it is hardly surprising that marriages entered into abroad, or in accordance with foreign customs, end up in local divorce courts too. In this case of an arranged marriage gone awry, the court of appeals reverses judgment on an agreement for the husband to pay the wife $50,000, made pursuant to Islamic custom, holding that the parties were already married when the deal was made, which means that it could not be enforced as a premarital agreement, the legal theory upon which the trial court had relied in making the award. The judgment, including the property division, is reversed and remanded to the trial. One panel member, former Harris County divorce court judge Eva Guzman, wrote separately, criticising the majority for going out of its way to suggest that the trial court consider another - valid - theory to uphold the award of the money in dispute to the wife.

Ahmed v. Ahmed
(Tex.App.- Houston [14th Dist.] June 17, 2008)(Yates)
(divorce, Islamic marriage, enforceability of agreement for payment of money as prenup)


In this divorce case, appellant Amir Ahmed appeals from the trial court's order awarding his ex-wife, appellee Afreen S. Ahmed, $50,000 pursuant to an Islamic marriage certificate signed by the parties. We affirm in part and reverse and remand in part.

Amir and Afreen married in a civil ceremony in November 1999. Both are of Indian descent, and both practice the Islamic faith. The marriage was arranged between the parties' families. They did not live together until about six months later after their Islamic marriage ceremony in New York on May 21, 2000.

As part of this ceremony, the parties signed an Islamic marriage certificate called a "Nikah Nama," which mentions a deferred "Mahr" of $50,000. According to Afreen's trial testimony, a Mahr is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce.Divorce proceedings began in July 2005.

The trial court determined that the Mahr was a marital contract executed by the parties "in contemplation of a forthcoming marriage" and "a valid, binding, and enforceable contract under Sections 4.001-003 of the Texas Family Code" which governs premarital agreements. According, the trial court awarded Afreen $50,000 as liquidated contract damages.

Amir argues that the Mahr agreement cannot be enforced as a premarital agreement because the parties made the agreement after being married.

We agree.

A premarital agreement is "an agreement between prospective spouses made in contemplation of marriage." Tex. Fam. Code Ann. ' 4.001(1) (Vernon 2006). It is undisputed that the parties were married in a civil ceremony six months before they signed the agreement. Afreen argues that the date of the religious ceremony controls and because their religious ceremony came after signing the Mahr agreement, it qualifies as a premarital agreement. Afreen's authority does not support this argument.

Although the cases she cites involve religious ceremonies, they do not address the issue of two separate ceremonies[1] or the date of the marriage was otherwise not an issue.[2] If the legal requirements for a ceremonial marriage are satisfied, Texas does not distinguish between civil and religious marriage ceremonies. See Zetune v. Jafif-Zetune, 774 S.W.2d 387, 389 (Tex. App.- Dallas 1989, writ denied). It is the parties' marital status, rather than a specific type of ceremony, that is significant. See id. at 389.

Because the parties participated in a valid civil wedding ceremony six months before signing the Mahr agreement, they were already spouses, not "prospective spouses," and their agreement could not have been made "in contemplation of marriage." See Tex. Fam. Code Ann. ' 4.001(1).

Thus, the trial court erred in enforcing the Mahr agreement as a premarital agreement.

Afreen argues in the alternative that the Mahr agreement can be enforced as a postmarital partition and exchange agreement under Family Code section 4.102. See In re ExxonMobil Corp., 97 S.W.3d 353, 358 n.5 (Tex. App.- Houston [14th Dist.] 2003, orig. proceeding) (stating that appellate court must uphold trial court's ruling if it reaches right result, even if for wrong reason). Amir argues that the terms of the Mahr agreement are too vague and uncertain to be enforced, which would prevent enforcing the agreement either as a premarital or postmarital agreement.

"In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook" T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). This rule is designed to ensure that all parties to the contract understand and agree to the essential terms. See Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex. App.- San Antonio 2002, pet. denied).

The agreement states that the parties "have been united . . . in matrimony as husband and wife against a Mahr of $50,000 of which prompt payment is nil and deferred payment is $50,000." Amir contends this language is too vague to be enforceable because it does not explain who would make the payment and when and how it would be paid.

Based on the evidence presented at trial, we conclude the Mahr agreement was sufficiently specific in this case. We may look to the relationship between the parties and the circumstances surrounding the contract to determine if the terms were sufficiently definite for the parties to understand their obligations. See Atofina Petrochemicals, Inc. v. Cont'l Cas. Co., 185 S.W.3d 440, 443 (Tex. 2005).

Both parties were raised in the Islamic faith, and Afreen testified that the Mahr agreement is a contract based on Islamic custom and religious principles. Amir offered no testimony regarding the Mahr, but Afreen explained that the Mahr constitutes a promise of an amount to be paid to the bride and if not given before, it must be given at the time of a divorce. If credited by the trial court as factfinder, this evidence establishes that the parties understood their agreement and that the terms are sufficiently specific to be enforced. See id.; see also O'Farrill Avila v. González, 974 S.W.2d 237, 244-45 (Tex. App.- San Antonio 1998, pet. denied).

Nevertheless, we cannot conclude whether the Mahr agreement constitutes a valid postmarital partition and exchange agreement in this case based on the other statutory requirements for such agreements. For example, partition and exchange agreements require an intent to convert community property into separate property. See Tex. Fam. Code Ann. ' 4.102 (Vernon 2006).

However, the record is devoid of any evidence as to whether or not the parties intended the Mahr payment to come from Amir's separate property or from the community property. Thus, because Afreen's alternative theory is not established in the record, we cannot affirm the trial court's judgment on this basis. See In re ExxonMobil, 97 S.W.3d at 358 (noting that alternative ground must be "supported by the record"); State v. Stone, 271 S.W.2d 741, 753 (Tex. Civ. App.- Beaumont 1954, no pet.) (holding that appellate court cannot affirm on alternative ground if fact issues exist as to that ground).

Because the trial court's improper award of $50,000 to Afreen pursuant to enforcement of the Mahr agreement as a premarital agreement materially impacted the trial court's distribution of the parties' assets, we must remand for the trial court to reconsider this distribution. [...]

Furthermore, we believe it serves the interests of justice to allow Afreen another opportunity on remand to prove that the Mahr agreement is enforceable on grounds other than as a premarital agreement, be it a partition and exchange agreement or otherwise.[3] The supreme court has held that, after finding error in the judgment, we have broad discretion to remand in the interests of justice.

Opinion by Justice Brock Yates
Panel: Before Justices Brock Yates, Guzman and Brown
Appellate cause no.: 14-07-00008-CV
Full case style; Amir Ahmed v. Afreen S. Ahmed
Appeal from 308th District Court of Harris County
Trial Court Judge: Judge Georgia Dempster
Concurring and Dissenting Opinion by Justice Guzman
Also see: Houston divorce property cases Family law cases with international aspects

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