Often people come to us for divorce consultations and ask our advice about the religious “deal” they struck with their soon-to-be ex-spouse. They want to know whether or not the terms of the deal are enforceable, or, whether they can avoid enforcement of the deal. The separation of church and state is axiomatic in our country, making the enforcement of religious agreements an area fraught with uncertainty both for litigants and their lawyers. Although courts will certainly offer guidance in many situations, it is just as often the case that they find they cannot order an individual to do something related to the exercise of religion.
After looking at prior cases decided in multiple jurisdictions, the most reasonable conclusion we can reach is that the effective lawyer is one who bases his or her arguments on secular contract law and “neutral principles,” rather than on religious ones. But, generally speaking, the answer is “no,” such agreements are not enforceable in civil courts. People can change their minds about religion and the religious deals they make. Courts are unable to interfere with a person’s changed religious preference. This means that family law attorneys often find have to help their clients sort through the consequences of such a change. That is not to say that religious agreements are never enforceable. A religiously based prenuptial agreement, for example, may be deemed valid.
Generally speaking, prenuptial agreements are governed by contract law. But the laws regarding prenuptial agreements are frequently stricter than those governing other types of contracts, and certain formalities usually must be followed. For example, in the Arizona case of Victor v. Victor, 866 P.2d 899 (Ariz Ct. of App. 1993), the Ketubah (a Jewish prenuptial agreement) satisfied the formality requirements for a valid prenuptial agreement, in spite of its religious beginnings. Nonetheless, the court held that it was not specific enough to constitute an entirely valid prenuptial agreement.
Often times, promised payments or other secular terms (e.g. simply appearing at a religious tribunal) either in a Mahr, in the Muslim faith, or a Ketubah, in the Jewish faith, give rise to an enforceable contract. Such was the case in the New Jersey and Florida matters of Odatalla v. Odatalla, 810 A. 2d 93 (N.J. Super. Ct. 2002) and Akileh v. Elchahal, 666 So. 2d 246 (Fla. Dist. Ct. App. 1996).
Since prenuptial agreements must satisfy certain prerequisites, a “contract” that is merely implied rather than being formally recorded would probably not be considered valid. The best practice is to video tape the execution and formalization of the religious contract just as one might video tape a prenuptial contract. In the recording it is essential to underscore the religious aspects that dovetail with the secular law.
Ultimately, whether a religious contract is likely to be enforced by a civil court depends upon whether the civil court is required to determine religious law or to perform a religious act. There is, perhaps unsurprisingly, conflicting authority on this issue. However, the best argument is one that employs secular principles, supports public policy, does not require the civil court to make a religious determination, and will lead to a result that is in line with prevailing law.
Sounds like a tall order? Perhaps… Consider the following cases:
In Victor v. Victor, supra, the court held that the Ketubah did not mandate that the husband give his wife a Get (a Jewish divorce) and that by interpreting the Ketubah, the court would be overstepping its authority and assuming the role of a religious court.
In Steinberg v. Steinberg, 1982 Ohio App. LEXIS 12314 (Cuyahoga Cty. Ct. of App 1982), the court held that it could not enforce the provision of a divorce decree which mandated that the parties would fully cooperate with each other in obtaining a Get. The court held that, when parties to a separation agreement include an obligation to perform a religious act, such requirement is unenforceable either under contract law or a divorce decree.
In Zawahiri v. Atwattar, 208 Ohio App. LEXIS 2928 (Franklin Cty. Ct. of App. 2008), the trial court held that an Islamic Mahr which required that the husband pay a sum of money to the wife could not be enforced since it required the performance of a religious act.
In Aflalo v. Aflalo, 295 N.J. Super. 527 (Super. Ct. of N.J. 1996), the court held that a husband could not be required to perform the religious act of giving his wife a Get.
But compare those with the following cases:
In Avitzur v Avitzur, 58 NY 2d 1D8 (NY Ct. of Apps. 1983), after the husband obtained a civil divorce from his wife, he brought action against her to compel her to appear before a rabbinical tribunal as she had previously agreed to in a Jewish divorce document signed prior to the marriage. The trial court dismissed the action, but the Court of Appeals reversed. The appellate court reasoned that nothing in the law or public policy prevented judicial recognition and enforcement of the secular terms contained in a religious marriage agreement. The husband was not compelling the wife to obtain a religious divorce. Instead, he sought to enforce the parties’ agreement to appear before the tribunal. Therefore, the court was merely performing a secular functionof enforcing the parties’ agreement; it was not determining any religious law.
In Odatalla v. Odatalla, supra, the court enforced a provision in a Mahr requiring a $10,000 payment because the religious contract met the requirements of a contract in New Jersey. Interestingly, the negotiation of the Mahr was videotaped so its validity was relatively easily determined. The husband’s argument that the payment’s postponed nature made the provision unenforceable was rejected. The term regarding the postponed payment was likened by the court to a promissory note which the wife could demand at any time. Approving of the use of simple contract approach to resolve dispute, the court stated: “… is the most consistent with the character of the Mahr under Islamic law and with American notions of equity and justice.”
What all of this means – to both the practitioner and the client trying to either enforce or invalidate a religious agreement – is that before our civil court system is likely to enforce a religious contract, it will first determine whether or not the enforcement will require a determination and enforcement of religious law, or the requirement to perform a religious act. If the court is not required to perform a religious act then the contract may be enforced. Thus, it appears that the enforcement of contractual provisions (i.e. for obtaining a Get, as in Avitzur) may be considered as requiring the performance of a religious act in violation of the First Amendment, but an agreement to resolve martial disputes in a religious forum may be enforceable.