License to wed: Legal implications of Muslim marriage in America

The Lady of Justice is blind, but when entering into marriage our eyes should be wide open. In good times and in tough times, legal situations can crop up in our everyday life that can strain even the strongest relationships. But are we prepared to deal with them? Life happens and we must exercise faith and reliance on Allah. But, it also behooves us to be proactive and arm ourselves with the appropriate education and resources to handle the unexpected to the best of our abilities.

There are so many critical issues couples should consider before marriage but instead couples are often times more consumed with the planning of a wedding, buying the perfect dress, or worrying about who to invite than discussing these issues that have a long term effect on the marriage. Along with a lack of preparation among Muslims for common marital issues such as communication, finances, parenting, and intimacy, couples are rarely equipped to address the legalities that arise out of married life. In the United States, it is important to understand ways the law impacts you as an individual, as a married couple and as a parent. This article addresses the implications American law has across the life cycle of your marriage and provides resources to handle these situations.

Healthy marriages require spiritual development, communication and relationship building skills, parenting skills, financial management skills, family health and wellness education, as well as opportunities to discuss mutual and divergent expectations. Even seemingly trivial matters like who will do the dishes, take out the trash and which in-laws will be visited for Eid, need to be sorted out. Views on meat, music and Madhahab (schools of thought) need a fair discussion as couples determine their compatibility and how they will manage differing views on these subjects.

As part of the Islamic Social Services Association, USA’s Sakinah Healthy Marriage Initiative, in partnership with the Muslim Alliance of North America (MANA) and other communities, key Imams and community leaders across the country have signed the Healthy Marriage Covenant that requires premarital counseling, advisement and education prior to the marriage ceremony. Still too few communities have the necessary resources or have made the commitment to establish islamically based marriage education programs. Moreover, not enough singles and families have made the commitment to seek the preparation and education necessary for a healthy marriage.

Understanding the Legal System

One subject that receives little to no attention, but can have serious consequences throughout the marriage is a couple’s understanding of the American legal system. Most couples do not know that the American legal system has an impact on their marriage. Nor are couples aware of their legal rights and responsibilities that are triggered from the moment you say “I do.” Like all American couples, the law impacts Muslim couples living in America too. The reality is the law is a pervasive force always working for you or against you. You do not have to be a bad person to be confronted with a legal situation. Prior to marriage, a couple should be cognizant of their legal rights and responsibilities as they journey through the marriage cycle starting from courtship through marital dissolution by either death or divorce.

According to Islam, writing our agreements, outlining our inheritance wishes, and preparing our last Will and Testament are prescribed in the Qur’an (see Surah Al-Baqarah: 240, 180, and 282-283 and Surah An-Nisa: 6, 11, and 176). The Prophet (saws) is reported to have said it is not right for a Muslim who has property to bequeath that he should pass two nights without having a written will with him (Sahih Bukhari). These are of course legal issues ordained by Allah.

True Scenarios Involving Legal Dilemmas

Consider the following scenarios based on true stories. These are just some of the legal issues that can affect everyday Muslim families. These couples never intended to face legal problems but everyday events led to their involvement with the legal system.

Meet Hadia and Omar. After 15 years of marriage, they are confronted with the impact of the husband’s unresolved criminal charge and immigration issues on their family that occurred before the marriage. These issues caused Omar to be deported and Hadia to make the difficult decision to leave her extended family behind in the states and follow her husband overseas with their four children to keep her family together. This was a legal issue. In the case of Amy and Abdul, after several misjudged financial decisions, the couple experienced an IRS investigation that lead to a lien on wages and the possibility of jail time. This is a legal situation. Amira and Dawud, parents of two small children, realized that they were in the U.S. with no other extended family. One day, they narrowly escaped what could have been a tragic car accident and wondered what would have become of their children if they were both killed in that situation. This, they realized, was a legal situation. They immediately sought out the means to prepare their Last Will and Testament. A young couple embarked on their pilgrimage for Hajj leaving their 4 year behind with a relative. While away, both parents passed away leaving no will in place. Who will now care for the minor child is a legal situation.
Mohamed and his wife decided they couldn’t hold together any longer. A custody battle ensued to determine who will have primary say over their 3 minor children. This is a legal situation. During the course of their marriage, Amina and Ahmad invest in a new business, purchase a home, and other real estate. Ahmad fell ill in the midst of the economic downturn. Even though Amina worked full time, the couple faced an intense strain on their financial situation. After missing one too many payments their home was on the verge of foreclosure and the business was in trouble. The couple realized they were facing a legal situation.

Syed is a cab driver. One day he was involved in an accident where he received a traffic citation and criminal charges. Due to the criminal charges, his cab was grounded and he was unable to work to support his wife and children. Syed realized he had a legal situation. Sadia fell one day while carrying her toddler. The toddler’s femur was injured and she and her husband rushed the baby to the hospital. The hospital staff reported the injury to Child Protective Services as they are required to do. Not only is the couple worried about the health of their child but now Sadia has been charged with child abuse. Sadia is facing a legal situation.
Aside from these situations, Muslims have also reported time after time about being questioned by law enforcement and possibly detained or incarcerated as a result.

The reality is legal concerns can impact marriages and families in so many ways. Not all legal situations are negative. It is important to seek legal advice to assist with making financial decisions, before signing any contracts, from purchases of a gym membership to the purchase of a house. But, when a legal situation is more traumatic many families are left emotionally challenged to hold it together in the midst of long drawn out legal cases. Wives and children may be left without the support of their husband and father in the event of incarceration. Some legal situations ruin the family reputation and a once financially secure family may be devastated by court costs and emotional harm. Just as one severe medical situation could devastate a family’s budget, so too could one severe legal case. It is imperative that singles and married couples recognize the importance of their involvement with the legal system and prepare themselves to handle everyday legal situations as well as traumatic ones.

In the courtship process during the premarital phase as you are getting to know your future spouse it is important to ask about legal concerns that may affect the future marriage. Inquiring about unresolved debts, tax issues, previous incarceration, pending law suits, previous marriages, parenting plans for children from previous relationships, large business deals, and immigration status are just some of the important issues singles will want to discuss before marriage. It is also essential to know whether or not your state is a community property or separate property state. Ownership of assets and liabilities for debts accrued during the course of the marriage by one or both spouses will be determined by this legal designation.

Possible Legal Issues in Marriages

The following is a list of some of the legal issues couples may experience throughout the lifecycle of their marriage. It is by no means an exhaustive list.

• In the premarital phase consider having your Nikkah contract prepared as a prenuptial agreement with a family law attorney to improve enforceability. Properly executed prenuptial agreements seek to disclose the full nature of assets and debts. The act of going through this process helps to open the door to discussing other sensitive, but critical topics. If your new spouse is coming from overseas, you may need the help of an immigration attorney as they seek to complete their immigration visas for their new spouse.
• Legal concerns during marriage may require the assistance of an expert in Wills and Estate planning, as well as real estate, immigration services and tax law. Issues like guardianship of minor children, the purchasing of an automobile, home ownership and real estate questions, business ownership, inheritance matters and estate planning, Living Will and Healthcare Power of Attorney, taxes and immigration services are typical.
• Post Marital concerns like divorce, annulments, child custody, parenting plans and child support issues will require the expertise of a family law attorney.
• Upon the Death of a Spouse the assistance of a Probate attorney will be needed to get your spouse’s Will through the Probate process.
• Additional legal concerns may require a criminal law attorney for situations arising when your spouse is currently or formerly incarcerated. A family law attorney may be needed in tandem with a criminal attorney in cases of domestic abuse.

It is essential that couples know their legal rights and responsibilities. As Muslims in America, it is doubly important to understand how to utilize the tools found in the American legal system to secure their Islamic rights and responsibilities. Singles should become educated about their potential legal concerns before marriage and how they may impact the marriage. Ideally, everyone will have access to a law firm with attorneys who are experts in a range of areas couples will need advice about. Unfortunately, most couples will not be able to afford the high hourly costs which will present a barrier to legal access. Even consultation on a simple question may eat away any extra income most families have if they consult with attorneys at hourly rates from $300 on average and upwards.

In addition to pro bono legal service clinics provided by community lawyers, it is wise for couples to budget for the low monthly cost of legal coverage plans to address the myriad of everyday legal questions they will have through their marriage. A legal coverage plan allows couples to pay for high quality legal services at a low flat monthly fee. Legal plans are becoming increasingly available as employee benefits and through independent agents.

Re-published with permission from the Islamic Horizons Magazine, Jan./Feb. 2012 issue.

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Aneesah Nadir, MSW, PhD is a social worker and Zarinah Nadir, Esq. is an attorney. Both are long time community activists and volunteers with Al- Mu’minah and the Islamic Social Services Association-USA. They are also Independent Consultants with LegalShield, the leader in legal coverage plans.