Mahr Agreements: Contracting in the Shadow of Family Law (and Religious Law) - A Comment on Oman

Abstract

This article is a Comment on Nathan Oman, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Perils of Legal Specialization" (45 Wake Forest Law Review 579 (2010)). Oman's article shows that there are real disadvantages in looking at contracts through the lens of narrow transaction types, especially where individual agreements might fit poorly with the assumed narrative of that transaction type. The example Oman uses, mahr agreements treated within the category of premarital agreements, gives partial (but only partial) support for his thesis. The vast majority of those agreements should not be treated as premarital agreements, but not because they do not fit some ascribed narrative, but because mahr provisions should not generally be understood as waiving the recipient spouse’s rights at divorce regarding property division and alimony. However, when one or both parties claims that the mahr agreement does waive divorce rights, then that party should have the burden of showing both that this reading of the mahr agreement is reasonable, and that any such waiver was consistent with the procedural and substantive fairness safeguards created by state law to protect those who might otherwise make such waivers in an inconsiderate way.

Keywords: premarital agreement, mahr, contract theory