Texas law supersedes Islamic law

The Texas Supreme Court returned a divorce case to a Collin County court after ruling that a judge, not an Islamic Fiqh panel, should decide the issues.

The case concerns the pending divorce of Mariam Ayad and Ayad Hashim Latif, filed in January 2021. When the couple married in 2008, they signed two documents titled “Marriage Contract” and “Islamic Prenuptial Agreement”. Although the marriage contract is essentially a ceremonial document, it is not disputed. It is the prenuptial agreement that is disputed.

“In the agreement, the parties state their ‘belief that Islam . . . is binding for [them] in all spheres of life,” reads a court order. The agreement provides that “[a]Any conflict that may arise between husband and wife will be resolved in accordance with the Quran, Sunnah and Islamic law by a Muslim court or by [its] absence by a Fiqh group.

The Fiqh panel consists of three people who serve as impartial arbiters and judges, who are guided by Islamic law and principles. The majority decision of the Fiqh Panel is binding and final.

But Ayad claims she was defrauded and had no idea she had signed the prenup until recently. The contract was signed before witnesses at the wedding.

“She was signing the ceremonial contract. They lifted the corner. She signed the second page thinking it was just a direct copy of the document,” said Michelle O’Neil, Ayad’s attorney. O’Neil says that by chance, a child who had just received a video camera as a gift recorded the whole ceremony.

But the document withheld from a hearing before the Hon. Judge Andrea Thompson to determine the enforceability of the agreement.

An imam testified as an expert on Latif’s behalf, but the trial court refused to allow Ayad to testify on the ambiguity of the term, which concluded it was a “legal issue “. Shortly after, the trial court ruled that it would order the parties to arbitrate under the agreement, the Supreme Court order says.

This further irritates O’Neil.

“Under Islamic law, women have no say. The woman cannot present evidence. She needs to have three people confirming her side of the story for her to be taken seriously under Islamic law,” O’Neil said. “Are we going to apply our American Constitution where everyone has a say and an opportunity to be heard, or are we going to apply Islamic law where the rights of women are so incredibly deficient compared to men? This is the question that will be before the court of first instance.

Since this is custody of a child, the Supreme Court issued a writ of mandamus ordering a hearing.

“The error here is not that the trial court came to the wrong conclusion as to whether to compel arbitration. Rather, the error is that the trial court failed to follow a legal order — unique to the divorce context — that he must consider questions of validity and enforceability before ordering arbitration, and he therefore made no finding on those questions, the notice said.

The Supreme Court returned the case to Judge Thompson in the hope that she would conduct further proceedings pursuant to the opinion.

Latif’s lawyers didn’t return our call.

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