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By Waheeda Amien (University of Cape Town), originally published on The Conversation

South Africa’s Constitutional Court has fundamentally changed the country’s marriage law, making it fairer to people who are married “out of community of property” when their marriages end. In these marriages, the estates of spouses are kept separate. They do not combine what they own into a joint estate.

The change applies to people who got married after 1 November 1984 when their marriages end in divorce; or who got married before or after 1 November 1984 and whose marriages end in death.

The apex court’s judgment of 10 October 2023, in the case of EB v ER, will benefit spouses, mainly wives, who find themselves in financially vulnerable positions when their marriages out of community of property without accrual end in divorce or death. This includes stay-at-home mothers, who take care of the family home or raise the children full time. Their non-financial contributions to the marriage, including unpaid labour in the home, are now valued as much as any financial contributions to the marriage.

Before 1 November 1984, there were only two legally recognised matrimonial property regimes applicable to marriages in South Africa. They were marriages in community of property and out of community of property.

Marriages in community of property are those in which the estates of both spouses are combined. When the marriage ends through divorce or death, the parties each have a 50% claim against the joint estate.

In the case of the out of community of property regime, the estates of the spouses are at all times kept separate. Neither spouse has a claim against the other spouse’s estate even if they contribute to the maintenance or growth of the other’s estate.

The change

On 1 November 1984, the Matrimonial Property Act 88 of 1984 entered into force. It introduced a third matrimonial property regime: the accrual system.

The accrual system allows spouses who are married out of community of property to share in the growth of each other’s estates while still maintaining their separate estates.

Both spouses retain separate estates when they enter the marriage and during the marriage. At the end of the marriage through divorce or death, the spouse with the smaller accrual or no accrual has a claim against the spouse with the bigger accrual. The claim is for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

For example, a wife and husband each enter the marriage with R1,000. At the time that they are married, both spouses are working. During the marriage, they decide that the wife should stay at home and take care of the house and children while the husband will continue working and be the breadwinner of the family.

Suppose that at the end of the marriage, the wife’s estate is valued as R3,000 and the husband’s estate is valued as R10,000. The accrual in the wife’s estate is R2,000. The accrual in the husband’s estate is R9,000. Half the difference between the accrual of the spouses’ estates is R3,500 (R9,000 minus R2,000 equals R7,000, divided by two equals R3,500.) Since the wife’s accrual is smaller than her husband’s accrual, she has a claim of R3,500 against her husband’s estate.

The above crude example illustrates that even though it may not have been intended, the out of community of property with accrual regime recognises that even though parties retain separate estates during the marriage, they may contribute indirectly to the maintenance or growth of each other’s estates, like the wife did through her unpaid labour in the home.

The judgment

When the accrual regime was created, section 7(3) of the 1979 Divorce Act was amended to allow spouses who were married out of community of property before 1 November 1984 (who therefore did not have the option of accrual), and who were undergoing a divorce, to apply to a divorce court for a redistribution order.

Through a redistribution order, a court can transfer the assets of one spouse to the other spouse if it is just and equitable to do so. This applies in instances where one spouse contributes directly or indirectly to the maintenance or growth of the other spouse’s estate including through the rendering of services.

In its judgment of 10 October 2023, the Constitutional Court found section 7(3) of the Divorce Act, among others, to be unconstitutional and invalid to the extent that it did not include a) spouses who were married out of community of property without accrual after 1 November 1984 if the marriages were dissolved through divorce, and b) spouses who were married out of community of property without accrual before or after 1 November 1984 whose marriages ended through death.

These parties could not claim a redistribution order if they contributed to the maintenance or growth of their spouse’s estate.

Significance of the judgment

The court’s judgment will provide much needed financial relief to spouses whose marriages out of community of property without accrual end regardless of when the parties were married or how the marriage ended.

The judgment will also benefit spouses in Muslim marriages. These were legally recognised when the Constitutional Court, in a 2022 case, Women’s Legal Centre Trust v President of the Republic of South Africa, declared that the common law definition of marriage and section 7(3) of the Divorce Act, among others, were unconstitutional to the extent that they did not include Muslim marriages. Now, spouses in Muslim marriages that are out of community of property without accrual, which dissolve through divorce or death, may apply to court for a redistribution order to transfer the assets from one spouse’s estate to the other.

Next steps

The advisory committee of the South African Law Reform Commission Project 100E on the Review of Aspects of Matrimonial Property Law is reviewing existing laws that deal with matrimonial property regimes.

In light of the Constitutional Court judgments in the Muslim marriages’ and accrual cases, the advisory committee could most likely recommend amendments to, among others, section 7(3) of the Divorce Act to enable all spouses married out of community of property without accrual to apply to court for a redistribution order when their marriages end in divorce or death.

In its discussion paper 160, the commission recommends that a court should retain discretion to ensure a just and equitable result when granting a redistribution order.

In its judgment dated October 10, 2023, the Constitutional Court of South Africa (the "Court") interpreted section 7(3) of South Africa's Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place "out of the community of property," where marital assets are kept separate between the spouses at all times. Instead, the section introduced an "accrual system" for out-of-community property marriages, allowing spouses, in the event of the marriage's dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section's cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death.

The Court's judgment has been interpreted as extending the accrual system protections to these two groups. One commentator, Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation: "The Court's judgment will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended."  The same piece also noted the impact of the judgment on Muslim marriages in South Africa: now, spouses in Muslim marriages that are out of community of property without accrual, too, will be able to ask courts to order the redistribution of marital assets in the event the marriage ends. 

The appellate court upheld the Superior Court of Orange County’s refusal to divide marital property in the context of a divorce according to Islamic law. The plaintiff introduced a marriage certificate as a “premarital contract,” which, among other things, lays out a set amount to be paid to the wife in the event of a divorce. The lower court refused to consider the certificate a “contract,” as it was not clear that both parties were expressly agreeing to the same terms, consistent with their understanding of Islamic law and custom.

During trial court proceedings in which a Muslim couple was dividing their marital property, the husband, Mr. Irfan Aleem, attempted to perform a “triple ṭalāq” divorce—a form of final, irrevocable dissolution of marriage under Pakistani law, initiated unilaterally by the husband. The Court refused to honor this type of divorce, concluding that it violated due process rights guaranteed by the Fourteenth Amendment by not giving Mrs. Farah Aleem any role or voice in the divorce proceedings. The Court also concluded that allowing the ṭalāq divorce to replace court proceedings was contrary to the public policy interest of the people of Maryland, as it would allow Pakistani version of Islamic law, which grants all property to the husband as the default in divorce cases, to regulate distribution of property in the state of Maryland. The Court thus upheld the ruling of the Circuit Court of Montgomery County, granting the wife’s petition for divorce, and applied the Maryland default rule that, in the absence of prior written agreement, marital property is to be divided fairly and equitably.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.

The parties were married on 21 May 2002 and had two children. After first living with the defendant's parents, and then the defendant's older sibling, the plaintiff lived alone in a rental property from September 2003-January 2004, before returning with the defendant to live with the defendant's parents until June 2004. For the next three years the parties lived together in two separate rental properties until June 2007, when the defendant left the plaintiff, returning to his parents' home until March 2010. During that time, however, the defendant regularly returned to the parties' rental property. After March 2010 the defendant left the plaintiff, and the parties had remained separated up until the time of the proceeding.

The plaintiff claimed that the parties had lived harmoniously until mid-June 2003, after which they had begun to quarrel regularly. The defendant left in March 2010 as a result of:

1. the defendant's lack of care for the plaintiff, which had left the plaintiff feeling uncomfortable;
2. the defendant's parents meddling in the parties' domestic affairs;
3. the defendant slapping and verbally abusing the plaintiff when the parties would argue; and
4. the defendant accusing the plaintiff of having had an extra-marital affair, and therefore questioning the paternity of the parties' second child.

In the defendant's absence, the court acceded to the plaintiff's application, granting her an irrevocable divorce (talak satu bain shughra) on the grounds of ongoing conflict, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws. The court also ordered the plaintiff to pay court costs (IDR 406,000).

The parties were married on 8 January 2006 and had two children. After their marriage, they lived in a rental property in Medan for a year. They then moved to the defendant's parents' home for a year, before living in another rental property. The plaintiff submitted that the parties had quarrelled since the beginning of 2007 because the defendant had not worked to meet the parties' domestic financial needs.

In July 2013, problems escalated after the defendant had an extra-marital affair with another woman. This caused the plaintiff to return to her parents' home. The defendant followed suit and returned to his own parents' home as well. The parties had remained separate for the past two years and seven months. Around January 2015, the defendant and his parents attended the plaintiff's parents' home in order for the defendant to orally divorce the plaintiff and draft a statement of divorce.

In acceding to the plaintiff's request for an irrevocable divorce (talak satu ba'in sughra), the court noted that the parties had breached the mandate contained in arts 33 and 34 of Law No. 1 of 1974 on Marriage, art 3 of the Compilation of Islamic Laws, and verse 21 of Al-Rum (The Byzantines) of the Qur'an. Moreover, the plaintiff had proven that the parties' marriage was irreparable, making divorce the only feasible course. The court, pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, granted the plaintiff an irrevocable divorce on the grounds of ongoing conflict.

The parties were married on 26 July 2008 before a marriage registrar from the local Office of Religious Affairs. They then lived with the respondent's parents before moving to a rental property. The parties also had one child.

The applicant submitted, however, that the parties' marriage became quarrelsome from 25 November 2012, after the applicant discovered that the respondent had been having an extra-marital affair with another man. Since that date the parties had remained separated, had shared no physical intimacy, and their child had remained in the applicant's care. The applicant submitted that he did not want the child to be transferred into the care of the respondent given her recent conduct.

The court acknowledged that the purpose of marriage, as contained in the Qur'an, Surat Al Rum, verse 21, as well as art 1 of Law No. 1 of 1974, and art 3 of the Compilation of Islamic Laws, being a peaceful, hopeful and loving home, was no longer feasible. Therefore, pursuant to the elucidation of art 37 of Law No. 1 of 1974, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, the court, in the respondent's absence, acceded to the plaintiff's application for a revocable divorce (talak satu raj'i) on the grounds of ongoing conflict.

The parties were married on 18 January 1985. They had lived in Central Java for about 20 years before moving to a rental property in Sukajadi until they separated. They had two children and had been married for 25 years. Since 2010, however, the parties' marriage had become quarrelsome because, the plaintiff submitted, the defendant:

1. would become unnecessarily angry on a regular basis;
2. was temperamental;
3. had frequently physically assaulted the plaintiff;
4. had carried on an extra-marital affair with another woman; and
5. had neglected the plaintiff and failed to provide her with financial support.

In 2015, after yet another argument, the parties decided to separate. They had remained apart for a year at the time of the proceeding. Familial attempts to make the parties reconcile had been unsuccessful and, having concluded that the parties' differences were irreconcilable, the plaintiff requested that the court grant her an irrevocable divorce (talak satu ba'in sughra).

Despite the defendant's absence from court, the court, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of Compilation of Islamic Laws, acceded to the plaintiff's request on the grounds of ongoing conflict between the parties.

The parties were married on 8 March 1999, after which they lived in a rental property for three years, before moving to their own home. The plaintiff submitted that the parties had been happily married for 13 years and had two children. By December 2009, however, the parties' marriage had become quarrelsome after the defendant had had an extra-marital affair with a woman named Ega from West Java. The plaintiff submitted that she had learned about the affair from a work colleage of the defendant, and after conducting her own investigations, had confirmed what she had been told. By December 2011, the parties had begun to quarrel again after the defendant had had another extra-marital affair, this time with a woman named Yuli from Biudukfoho (the parties' maid). On 29 March 2012, the parties quarrelled yet again after the defendant received a phone call and SMS around 11:30pm from another woman. When the plaintiff inquired with the defendant as to who the woman was, the defendant told the plaintiff she was a caregiver at an orphanage in Kupang, which the defendant had coincidentally frequented.

As a result of the defendant's conduct, the parties had been separated since 30 March 2012. The plaintiff requested that the Court grant her an irrevocable divorce (talak satu ba'in sughra) in order to bring this unfortunate set of circumstances to an end. The plaintiff also sought IDR 1.5 million per month in child maintenance from the defendant, whose salary was IDR 3.5 million per month.

The court acknowledged that the parties' marriage had deterioriated and no longer represented that envisaged by art 1 of Law No. 1 of 1974, and art 3 of the Compilation of Islamic Laws. It acceded to the plaintiff's request on the grounds of ongoing conflict, per art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws. The plaintiff later withdrew her claim for child maintenance payments, but the Court did grant her custody of the parties' two children.

The parties were married on 24 October 2007, after which they had lived with the plaintiff's parents for approximately four months, before moving to a rental property in Padang for approximately one year. They then moved to the defendant's parents' home before separating.

By 2009, the parties' marriage had become quarrelsome. The plaintiff submitted that this was largely due to the defendant's temperamental nature, whereby he would project his anger about something else onto the plaintiff, as well as the defendant having had an extra-marital affair. The plaintiff also submitted that whenever the parties argued, the defendant would resort to physical violence, leaving the plaintiff with physical injuries. The defendant would even threaten the plaintiff with sharp objects. The plaintiff's statement of claim also referenced the defendant's alcohol and drug addiction, for which she had unsuccessfully counselled him.

Problems escalated in January 2012 when the plaintiff was arrested after police found narcotics in the matrimonial home. At that point the defendant had already left the plaintiff, but because the plaintiff had not reported the defendant to the police earlier, she was imprisoned for one year. During this time the defendant very rarely went to visit the plaintiff. Upon her release from prison the plaintiff heard that the defendant had remarried but was also serving five years in prison himself for drug-related offences.

The court granted the plaintiff an irrevocable divorce (talak satu ba'in shugra) on the grounds that ongoing conflict between the parties meant that there was no hope for them to create a joyful and enduring domestic life, as envisaged in art 1 of Law No. 1 of 1947 on Marriage.

The parties were married on 17 January 2005 but had no children. After marrying in Bau-Bau, the parties had returned to Ambon and lived in a rental property from 2005-2006, before moving to their own home in December 2006. The plaintiff submitted that, since 2008, the parties' marriage had become quarrelsome because the defendant had had an extra-marital affair in Ambon and Jakarta. The plaintiff had learned of the affair when she called the defendant and the other woman in question answered his phone, resulting in the plaintiff and other woman arguing over the phone.

The plaintiff also submitted that the defendant had failed to disclose to her that, after the parties had agreed to rent out their property for one year, the defendant had rented it out for two years, spending the proceeds from rent payments on the other woman. The defendant had also confessed to having a daughter with a non-Muslim woman, the child now being in the care of the defendant's older sister, as well as marrying another woman, with whom he had a four-year old daughter.

Problems escalated on 13 Feburary 2011 when the defendant extended the term of the rental agreement for their property without first consulting the plaintiff. The defendant then spent the rent proceeds on the other woman, the plaintiff submitted.

The defendant submitted that he did not live in Ambon, but rather in Central Jakarta, and therefore the Ambon Religious Court lacked the jurisdiction to adjudicate the case. Moreover, he rejected the plaintiff's submission that he had used proceeds from renting their home to fraternise with another woman. Rather, the defendant submitted that he had used that money to cover the plaintiff's university fees (the plaintif was attending university in Makassar and the defendant did not have sufficient finances to cover the costs). The defendant also rejected the plaintiff's submission that he had married another woman with whom he had a four-year old daughter.

The defendant also submitted that from the IDR 17 million per annum he made from renting the parties' home, he had spent IDR 4 million on plumbing, IDR 5 million on the issuance of a certificate from the National Land Body, provided the plaintiff with IDR 4 million to discharge a debt she owed to a colleague, and IDR 2 million to pay an instalment to the landowner as the land had not yet been paid-off in full.

Dismissing the defendant's claim that the court lacked the necessary jurisdiction to adjudicate the case, the court found that, based on both parties' submissions, it was evident that the parties were no longer compatible and had already been separated since February 2011. Pursuant to art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws, the Court acceded to the plaintiff's request for an irrevocable divorce (talak satu ba'in sughra).

The parties were married on 13 May 2006 and had one child. After marrying, the parties lived with the plaintiff's parents for several weeks, before returning to Bali, where the defendant was stationed for work, and where the plaintiff was completing her medical degree at Universitas Mahassaraswati in Denpasar. While in Bali, however, the parties did not live together: the defendant lived in a rental property in Jembrana, while the plaintiff lived in a boarding house (rumah kost) in Denpasar. On one occasion, when the plaintiff was late to collect the defendant from a bus terminal, the defendant struck her in the head. While she was wearing a helmet at the time, the plaintiff still decided not to reprimand the defendant. The parties maintained these living arrangements until the plaintiff completed her studies in 2007, when the plaintiff then moved into the defendant's rental property in Jembrana.

While living together, the defendant's fondness for cockfighting became a source of tension between the parties. When angry, the defendant would often throw whatever objects happened to be in front of him, and, on one occasion, threw an empty gallon container at the plaintiff while she was pregnant. The plaintiff claimed she then cried and went to her room, while the defendant allegedly shouted 'go home to your parents' ('pulang saja ke orang tuamu'). The plaintiff later moved to the defendant's parents' home in Jember, East Java, while the defendant remained in Jembrana. The parties occasionally argued on the telephone, as a result of the plaintiff frequently hearing that the defendant was fraternising with another woman.

Around the fasting period in 2008, when the plaintiff was seven-eight months pregnant, the plaintiff heard from the neighbour and landlord of the defendant's rental property that a woman had visited the defendant from 8pm-3am. Upon receiving this information, the plaintiff became convinced that the defendant was having an extra-marital affair. When the parties spoke again on the telephone, the defendant occasionally uttered profanities that left the plaintiff feeling upset and in tears.

As the plaintiff was entering her ninth month of the pregnancy, the defendant visited her at his parents' home. One evening the plaintiff inquired with the defendant as to whether or not he had had an extra-marital affair. In response, the defendant threw an ashtray, causing the plaintiff to run into her room and lock the door out of fear. The defendant chased her, and, attempting to enter the room, proceeded to cause damage to the door handle. Concerned that the neighbours might overhear the commotion, the plainitff opened the door to her room, only for the defendant to start causing damage to a cupboard door with his fists. When the plaintiff retired to bed, the defendant then jumped up on the plaintiff's bed, almost landing on the plaintiff's pregnant stomach. After the defendant's mother intervened, the defendant sat down calmly and confessed to having had an extra-marital affair. The defendant acknowledged he was prepared for the plaintiff to divorce him, but maintained that the child was his and would go with him.

The next day the defendant apologised to the plaintiff for his wrongdoing, and the plaintiff spoke with the woman with whom the defendant had had the extra-marital affair. The woman confirmed the information provided to the plaintiff by the landlord. The next day the plaintiff experienced some pregnancy-related bleeding and was brought to Bina Sehat Hospital. The hospital noted that, as the plaintiff had experienced some psychological stress, the pregnancy would be expedited.

In 2009, after the child was born, it lived in Jember with the defendant, per the defendant's wishes. While the plaintiff was working in Kendari for two years as a civil servant, the defendant equivocated as to when he would bring the child to visit the plaintiff in Kendari. As a result, the plaintiff often visited her child in Jember. During her visits to Jember, the plaintiff became aware from things the child would say that the defendant was not showing the child any affection, and that the child was being deprived of its mother's love, something, the plaintiff told the court, pivotal to any child's development. When the plaintiff was about to return to Kendari, the child would cry while hugging the plaintiff and calling 'Mama... Mama... Mama...'.

The plaintiff had also provided the defendant with significant financial support to assist him in establishing a catfish business. During one of her visits to Jember, several months after a catfish harvest, the defendant's mother informed the plaintiff that the defendant had visited a shaman (dukun) to ensure that the plaintiff was not happy in Kendari. When the plaintiff inquired with the defendant about this, in front of the defendant's mother, the defendant punched the plaintiff in the face several times, felling the plaintiff in the corner of her room.

After deliberately limiting her communication with the defendant, the plaintiff re-established contact in November 2012.The defendant, however, only used the opportunity to order the plaintiff to arrange the parties' divorce. The parties did not communicate at all in 2013, after the defendant requested that the plaintiff not disturb him. From the beginning of 2010, the defendant had not provided the plaintiff with any financial support, and the parties had not been physically intimate since August 2012. Pursuant to arts 39, 42 and 44 of Law No. 1 of 1974 on Marriage, as well as art 19 of Government Regulation No. 9 of 1975, and art 56 of the Compilation of Islamic Laws, the plaintiff sought a judicial divorce and custody of the parties' child.

Despite acknowledging that court-sanctioned mediation had been unsuccessful in reconciling the parties' differences, the court dismissed the plaintiff's application. The court acknowledged that the defendant had disputed and repudiated the plaintiff's submissions, but more significantly, it stressed that it was dismissing the application on the grounds that the two witnesses produced by the plaintiff had never seen the parties quarrel, did not know the nature of the parties' domestic situation, and the information they had provided to the court was, therefore, immaterial. On the same grounds, it dismissed the plaintiff's application for custody of the parties' child.

The parties were married on 29 December 2004, and had two children on 23 September 2004 and 6 November 2010. Their marriage had been harmonious until 2012, when the parties had begun to quarrel regularly. The applicant submitted that this was because the respondent:

1. did not carry out her responsibilities as a wife, such as preparing food for the applicant;
2. incorrectly suspected the applicant of having had an extra-marital affair, and would never listen to the applicant's explanations;
3. was excessively jealous of the applicant's family and objected to things such as the applicant providing his parents with money; and
4. whenever the parties would argue, would direct obscenities at the applicant, even in public.

Problems escalated in July 2013 when the respondent, for no apparent reason, ignored the applicant. The argument that ensued caused the respondent to ask the applicant for a divorce, which led the applicant to move to a rental property and the respondent to return to her parents' home. As mediation had failed to make the parties reconcile their differences, the applicant was of the opinion that the marriage was no longer tenable.

The court concurred, citing art 19(f) of Government Regulation No. 9 of 1975, in conjunction with art 116(f) of the Compilation of Islamic Laws, in finding that the parties' ongoing conflict constituted a sufficient reason to grant the applicant a revocable divorce (talak satu raj'i), as prescribed in art 39(2) of Law No. 1 of 1974 on Marriage.

The court, pursuant to art 152 of the Compilation of Islamic Laws, also ordered the applicant to pay to the respondent IDR 5 million, IDR 4.5 million of which was for iddah (100-day period after divorce has been granted). The court deemed the remaining IDR 500,000 sufficient for mut'ah (divorce compensation), as contained in art 149(a) of the Compilation of Islamic Laws. The applicant was also ordered to pay to the respondent IDR 750,000 per month in child maintenance.

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.