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Lost in Translation? Mahr-Agreements, US Courts, and the Predicament of Muslim

Women

Zelun Kang

UCSB

RG ST 2

2023/10/21

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Response Paper: Lost in translation?

The text brings out an interesting aspect of law worth discussion: when the religious law

conflicts with the general customary law. The US law advocates for equitable distribution of

marital property upon divorce, often by splitting it in half. In Islam, a wife is entitled to a certain

amount of mahr payment from the husband if divorced (Scheunchen, 2021). Muslims will contract

their marriage under Islamic law and traditions. However, when this goes sour, and they bring their

cases to the civic court, it's always hard to establish how to solve disputes with a law that was not

used while engaging the contract. Most courts may not be exhaustively acquitted with the many

religious law requirements. Furthermore, some religious laws may be clearly unlawful according

to civil law and thus cannot be recognized. Unfortunately, when the two laws collide, there is a

victim, and in this case, it's primarily Muslim women.

In as much as our constitution gives the right to religion and religious law, they should

never be above the general civil law that guides all netizens. It is advisable to include religious

courts that can resolve minor conflicts and divorces that are amicable. When either party is not

satisfied, they should consult the ordinary court, where they should be ready for civil law to solve

their conflict. In a Muslim divorce case, the court should go to equitable sharing of property among

the divorcees and ignore the mahr agreements because most of these agreements are not

formalized and are subject to distortion. It would be complicated for the courts to solve every case

depending on their religious affiliations, which are often biased and chauvinistic. Community

property law property, where marital properties are shared equally, is the most reasonable

approach. In case any couple does not find the customary law fair, then they should work on

solving issues at the religious law level. Public law should be senior and the final say to ensure

that no one is segregated and oppressed by religious law.

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References

Scheunchen, T. (2021). Lost in translation. Journal of Islamic Law, 2(1), 36–90.

https://doi.org/10.53484/jil.v2.scheunchen