The Incorporation of Sharia in North America: Enforcing the Mahr to Combat Women's Poverty Post-Relationship Dissolution
University of Ottawa - Common Law Section
April 23, 2014
In Anver M. Emon & Kristen Stilt (eds.), Oxford Handbook on Islamic Law (New York: Oxford University Press, Forthcoming) Ottawa Faculty of Law Working Paper No. 2014-04
Abstract: The mahr, a contract negotiated upon an Islamic marriage payable to the wife, has the potential to help alleviate the “feminization of poverty” attendant upon marriage dissolution. In North America, courts have sometimes given legal force to the mahr through the contexts of marriage contracts/prenuptial agreements, or under rules of contract. Some courts have refused to enforce “religious” obligations or found “public policy” reasons for denying this aid to former wives. This article analyzes recent American and Canadian jurisprudence and argues that such non-enforcement is characteristic of a discursive legal and cultural fear towards and bias against religious Islam (especially an incorrect conception of “sharia law”), and serves to further disempower women. Legal enforcement of mahr payments as an ordinary contract is recommended.