Oñati Socio-Legal Series, Vol 1, No 2 (2011)

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Mahr as Contract: internal pluralism and external perspectives

Katherine Spencer

Abstract


This paper examines the Islamic legal doctrine of mahr - an inherent component to the marriage contract. In the first part the principal aspects of the marriage contract are analysed and the pluralism between Islamic schools and geo-political regimes are acknowledged. In the second part the "mahr" itself is specifically considered, noting the difficulties for Western scholars in conceptualising and categorising a provision that has no equivalent in Judeo-Christian marriage. The third part looks at the ways in which US and UK courts have categorised the mahr as a contract, or a term within a contract and yet have reached different conclusions on its enforceability. This produces inconsistent and sometimes unfair results and begs the question whether the recognition of Islamic family law by "Western" courts is inherently problematic. In the final section I attempt to answer some of those larger questions and conclude with the view that giving effect to mahr agreements as enforceable personal rights is judicially feasible - with the proviso however that in circumstances of profound unfairness and where contrary to public policy courts maintain the discretion to render such contracts unenforceable.

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