An article, “Court to rule on divorced Islamic couple’s $50,000 deferred dowry deal”, was published in the Sydney Morning Herald on 30 May 2012. In this article, Geesche Jacobsen discusses how a Sydney man, whose Islamic marriage included a contract that he pay his wife a $50,000 deferred dowry if he left her, is arguing that the contact us unenforceable under Australian laws.
However the wife’s lawyer has argued that the contract has been signed without undue influence and was enforceable under Common Law like any other valid contract.
The article states that this is probably “the first time that Australian courts have been asked to decide on the enforceability of such contracts.”
The couple were married under Islamic law in 2004 and had both been previously married with children, however the husband divorced his wife under Islamic law four years ago by telling the wife, “You are divorced”.
The couple, who are both of Egyptian background, planned to marry under civil law and drew up a pre-nuptial agreement. The agreement provided that they each keep their assets but that the husband pay the wife $50,000 if he initiated a separation or divorce. If the wife initiated the divorce or the divorce was mutual, no money was payable.
The husband’s barrister argued that the contract was “contrary to public policy”. The matter was initially heard in the Local Court where the Court had found, in the wife’s favour, that the agreement was enforceable.
However the husband appealed to the Supreme Court arguing that the Magistrate had erred and lacked jurisdiction. The wife’s barrister argued that court’s in the USA and Britain had ruled that such Islamic dowry contracts were enforceable and that the wife should be paid her $50,000.
The couple appears to have had an on-again/off-again relationship with several arguments, including one where the Police were called to the former matrimonial home. However, it was not until September 2008 that the husband had divorced the wife under Islamic law during an argument. The following year the wife says the husband had tried to reconcile with her, at which point she had asked for them to go to a Sheik to remarry, however the husband had refused. The wife recalls that she then said, “Well if you don’t want to remarry me then give me my dowry of $50,000 and each of us will go their separate ways.”
Jamila Hussain, who lectures in Islamic law at the University of Technology, Sydney, has said that the use of dowries in marriage contracts among the Islamic world was “pretty well universal” although most Muslims confirm to Islamic and not Australian civil law.
If you have any queries in relation to the validity of any documents or contracts or any pre-nuptial or other agreements you may have signed or are considering signing, please do not hesitate to contact us at Armstrong Legal on 9261 4555.