Signed, Sealed, and Not Delivered: The Religious “Prenup”

Prior to marriage, many couples believe that, in accordance with religious traditions, they are signing a prenuptial agreement. However, they are likely mistaken. Religious agreements, such as Ketubahs  and  Mahrs, often (and likely) contradict California law on prenuptial agreements.

Religious agreements typically do not meet the requirements of a prenuptial agreement under California law. For example, these agreements are often written in another language, such as Hebrew or Arabic. The terms are not understood, nor explained to the couple by an attorney. And, the agreements are often hastily signed mere hours before the nuptials. Ultimately, most people who execute religious agreements do so as a symbolic and religious gesture. Enforcement of a religious agreement is usually not thought of at the time of execution.

Merely a Symbolic Gesture

In a recent California Court of Appeal case published May 30, 2018, a husband appealed a trial court’s decision which denied his request for an annulment based on fraud when, at the time of divorce, the wife refused to accept the terms of the religious agreement she and her husband signed prior to their marriage. Husband’s argument was premised on the theory that his wife defrauded him by falsely promising at the time of the marriage to be bound by the Mahr agreement they entered into in accordance with Islamic law. The parties’ agreement provided that, in the event of a divorce, the wife would receive a copy of the Quran. To the husband, the Mahr agreement prevented the wife from obtaining any property other than a copy of the Quran in the event of their divorce following a twelve-year marriage and two children. For the wife, the signing of the Mahr agreement was a “traditional part of the wedding ceremony and the terms were merely symbolic”.

With the parties’ disagreement regarding the interpretation of the agreement, husband argued that his wife intentionally defrauded him claiming she misrepresented her intention to be bound by the agreement and induced him to enter the marriage and therefore sought an annulment. Ultimately, the Court of Appeal upheld the trial court’s decision and found that the parties simply had different interpretations of the agreement, which they did not discuss with each other, and that the husband assumed his wife shared his interpretation of the agreement. husband’s request for an annulment based on fraud was denied. The trial court also denied husband’s claim that the Mahr agreement constitutes a prenuptial agreement because it did not comport with California’s statutory law on prenuptial agreements.

Religious Symbolism Does Not Equate to an Enforceable Prenuptial Agreement

While the contentions, in this case, are a little hard to imagine—that after a 12-year marriage and two children, the husband expected his wife to be satisfied only receiving a copy of the Quran at the time of a divorce – the case does raise an interesting issue, that being religious agreements signed in connection with the wedding ceremony are likely symbolic and unenforceable under California law.

Therefore, if there is a desire to be bound by the terms of an actual prenuptial agreement, it is best to speak to a family law attorney proficient in this area of law rather than take a chance that the religious agreement will be enforced at the time of the divorce.