c. 1997 Religion News Service

UNDATED _ Batul Al-Saigh and her fiance, Mehmood Kazmi, trusted each other implicitly. But when Al-Saigh drew up her marriage contract as required by Islamic law, she put feelings aside. She stipulated that her husband would give her 5 percent of his income each month, and a settlement in the event of divorce.

And she said he would have to ask her permission to take another wife.”I love him very much,”Al-Saigh, a Reston, Va., environmental consultant, says four years after the wedding,”and I can never see my husband doing that ever, ever. But we put it in the contract because you never know.” Couples in religious and non-religious circles are spelling out the conditions of marriage and divorce in detailed, pre-marital agreements. While opponents call them a sacrilege, proponents say that well-drawn contracts can lead to greater marital harmony and protect both parties, particularly the wife, in the event of divorce. The very act of negotiating the terms, they say, can force couples to resolve their differences _ or dissolve their engagements.

Muslims and Jews have the most experience ironing out prenuptials, and in recent years Muslims have paid increasing attention to clauses that can improve a couple’s quality of life. Contracts are particularly important when men and women come from different countries and social backgrounds, and need to reconcile conflicting attitudes about marital roles.”Prenups”long precede Donald and Ivana Trump. Since the 5th century B.C., scholars say, Jews have signed marital agreements stating the husband’s obligation to his wife and the settlement to be awarded in the event of divorce or death.

The intent of the Islamic marriage contract was also to protect the rights of women, who were often regarded as little more than property in pre-Islamic Arabia, notes Georgetown University professor John L. Esposito in”Women in Muslim Family Law.” Although few Christians sign religious marriage contracts, some opt for secular agreements.

Some Muslim women’s groups encourage Muslims and non-Muslims to use premarital agreements to clarify their roles and expectations.”The contract is a tool to help men and women design their future life together so there are no surprises,”says Sharifa Alkhateeb, vice president of the North American Council for Muslim Women,”and so women won’t be saying, `I can’t do this because my husband won’t let me.'” While the Koran states that men will be protectors and providers, Muslim women’s activists say it’s important for women to make clear that their husbands cannot act as”absolute rulers”who can restrict their movement and activity, an attitude they say is based on a misinterpretation of the Koran. Women have added clauses to their marriage contracts stating they will not become pregnant until they’ve completed their doctorates. Others have demanded that their husbands hire a maid or help clean the house.”I put in that the burden of domestic chores was going to be shared by both of us,”says Samia El-Moslimany, a Seattle-born photographer who now lives in Saudi Arabia.”My father thought it was trivial, but I wanted it in the contract.” Clauses written by men may or may not be in the same spirit.”Young and open-minded men,”says Alkhateeb,”often write stipulations that express the sharing of pursuits, dreams, and home responsibilities.”More traditional men, she says”state that they don’t want their wives to go to college or work after they have children,”issues she thinks should be addressed before the wedding, particularly in arranged marriages.

Any clause that violates the Koran and the Hadith (the record of the Prophet Muhammad’s words and deeds) is invalid, Alkhateeb notes. A Muslim wife, for example, cannot stipulate that she is not obligated to gratify her husband sexually. She can, Alkhateeb says, state that sexual gratification must be mutual.

Some Muslim scholars believe clauses hindering a man from taking another wife violate Islamic law. Others say it is legal for women to stipulate they can get an immediate divorce if their husbands marry again. Alkhateeb also recommends adding a clause that says the couple may not interpret a Koranic verse to mean that a husband may hit his wife.”The prophet,”she says,”never hit his wife ever.” All Muslim contracts contain a mahr or dowry, and a woman can ask for an ongoing allowance and a settlement to be paid in the event of divorce or death.”I’ve gone to weddings where the mahr was $700,000,”says El-Moslimany. In contrast, some women ask for $1 or religious books as a way of stressing that the marriage is not about money, an option El-Moslimany rejects.”Many Americans get all dewy eyed and say, `I want a dollar or a Hadith,”‘ she says.”But it’s important for women to have their own money. (It) allows you to make decisions. It’s a buffer. I took my money and invested it.” Planning for worst-case scenarios can be stressful, notes Al-Saigh.”It wasn’t an easy thing to write up the contract, that’s for sure,”she says.”You’re getting married and you don’t want to think about money and divorce. He was saying, `You don’t need that much after one year of marriage.’ I was saying, `I want that much.’ I didn’t enjoy fighting it out, but you have to be practical.” Al-Saigh’s stipulation that her American-born husband would need her permission to take another wife took him by surprise.”It was odd,”Kazmi said.”I’m thinking, `I wouldn’t do it.’ But there are bizarre instances where people do odd things. I realized her concern and decided to definitely include it if she would feel safer.” Jewish women throughout history also have added clauses to their marriage contracts to protect their rights, notes Abraham A. Neuman in his essay,”The Ketubah. Sometimes the ketubah, or contract, prevented a husband from taking another wife in countries that allowed polygamy.

Many Conservative, Reconstructionist and Reform Jews have opted for modern ketubahs that contain promises”to strive for intimacy”rather than pay alimony.

However, Orthodox Jews continue to use the traditional ketubah that makes financial provisions in the event of divorce. But rabbis and women’s rights activists have noted the ketubah’s limitations as a vehicle for protecting Orthodox women. Thousands of Orthodox women, known as the agunot (“chained women”), have been granted civil divorces from husbands who refuse to give them religious divorces that would permit them to remarry. Some of these husbands use the promise of a religious divorce to extort money or concessions from their wives.

To prevent such scenarios, many Orthodox couples are signing a new prenuptial agreement, accepted by many, but not all, Orthodox rabbis. The couples agree that in the event of a separation they will appear before a designated religious court to arbitrate a religious divorce.

Most Christians don’t negotiate religious premarital contracts, and some view secular prenuptial agreements with indifference or disdain.”I think it’s totally destructive,”says evangelical Christian marriage counselor Michael McManus.”The assumption should be that the marriage will continue.” Still, Rita Bigel-Casher, a marriage and family counselor who sees couples from various religious traditions, says that contracts do not have to suggest a lack of serious intent.”I tell couples that’s it’s not a matter of walking into the marriage with a lack of trust, but of being pragmatic,”she says.”As long as they feel the other party is being fair with them, and is truly committed to them for the duration, there is every reason to negotiate. If people can’t negotiate a premarital agreement, how are they going to negotiate a marriage?”I think the Muslims have it right in this area in that they’re being realistic. Negotiating brings to consciousness that divorce is possible, that love and marriage are not unconditional, and that both parties have to work out their differences.” (OPTIONAL TRIM FOLLOWS)

Most couples stick to financial issues in secular prenuptials, but New York attorney Cecile C. Weich says she still sees the occasional”consciousness-raising contract”that became popular in the 1960s.”They put in who is going to do the dishes and make the beds,”she says.”Religion is a big topic, what religion the kids are going to be brought up and where they will go to religious school.” Sex is also big.”I had one couple who wanted to agree on how many times a week they were going to have sexual relations,”says Gloria Allred, a Los Angeles attorney who specializes in family law.”This was in the agreement as well as the weight they agreed to maintain. I pointed out there was no way a court was going to send out a marshal to say, `You didn’t have sex as many times as you agreed.’ But they left it in the contract.” Alkhateeb notes that few secular judges would pay attention to clauses about intimacy or housekeeping in a Muslim contract. She nevertheless recommends couples have their agreements reviewed by a lawyer to ensure enforceability of the major provisions in U.S. courts.

For couples who regret having skipped the prenuptial, there’s always the post-nuptial. New York attorney Daniel Eriksen represented one couple who drew up a post-nuptial contract to specify which assets would go to her children, and which to his in the event of divorce or death.”I expressed concern that getting involved in such a thing could really rock the boat,”says Eriksen. The couple, both in their 80s, dove in anyway.”And from what I know,”he said,”it didn’t hurt.”

MJP END LIEBLICH