July 16, 2010
Groom wins dispute over a pre-nup in Farsi
By ANDREW BERGH
Special to the Journal

Don't sign anything written in a foreign language (unless you truly understand it).

This bit of wisdom is courtesy of a Washington case called Marriage of Obaidi. To his later dismay, a certain newlywed learned that a prenuptial agreement written in Farsi contained a surprise clause or two.

Khalid Qayoum is a naturalized U.S. citizen who has lived in this country since age three.

In late December 2005, Qayoum, then 26, married Husna Obaidi, who was seven years younger. The offspring of Afghan immigrants, the couple agreed to marry according to Afghan custom. Although he considers himself “American first,” Qayoum made this concession in deference to his mother, who wanted him to retain at least some ties to his Afghan heritage.

In accordance with Afghan custom, the marriage took place at a “Nikkah” ceremony, which is similar to a reception at a typical Christian wedding.

At some point during the ceremony, Qayoum, his betrothed, and a handful of family and friends retired to a smaller room where verses from the Koran were read and the couple exchanged vows. This ritual was conducted almost exclusively in Farsi, a Persian language primarily spoken in Iran and Afghanistan, and as part of it the parties also signed a “mahr.” According to Qayoum, he wasn't informed about this aspect of the Nikkah ceremony — let alone that he would be required to sign a mahr — until 10 or 15 minutes before it happened.

Since Qayoum claimed to have never heard the word “mahr” before the day of the Nikkah reception, you too might be in the dark.

A mahr is an agreement based on Islamic law that obligates the husband to pay a dowry to his wife. It has a “short-term” portion, which is due immediately, and a “long-term” portion, which must be paid in the event of divorce. In the mahr signed by Qayoum, the short- and long-term portions were $100 and $20,000, respectively.

These amounts were negotiated by an uncle that Qayoum picked to act as his representative shortly before the Nikkah ceremony took place.

Although he signed it, the mahr was written in Farsi. This posed no small problem for Qayoum, who doesn't speak, read, or write Farsi. On top of that, his uncle never even told him about the terms of the agreement until after the private ceremony ended.

It's unclear from court records whether Qayoum immediately paid the short-term portion of the mahr.

What's known, though, is that the union between bride and groom eventually fizzled, as Qayoum filed for divorce about two years later. Following a trial, a Whatcom County superior court judge concluded, among other things, that Obaidi was entitled to the $20,000 long-term portion of the mahr.

In the ensuing appeal, Qayoum argued that the mahr wasn't enforceable as either a contract or prenuptial agreement.

Coincidentally, the enforceability of a mahr was addressed not too long ago by a New Jersey appeals court. According to the husband in that case, the court had to take a hands-off approach under the doctrine of separation of church and state. Rejecting his argument, the New Jersey court said in 2002 that the mahr at issue could be enforced as long as “neutral principles of law” — not religious beliefs or policies — were used.

Adopting this same approach, a Washington appeals court recently sided with Qayoum.

At the outset, the court observed that prenuptial agreements are subject to the same “neutral principles” applicable to any other contract. Under one such rule, said the court, a valid contract requires a “meeting of the minds” on all essential terms.

So did Qayoum and his former wife have a meeting of the minds?

That would be a big negative.

The only essential terms in the mahr, said the appeals court, pertained to the two dowry commitments. As to those promises, Qayoum only had 15 minutes' notice that he would be required to sign a mahr. His uncle's negotiations were conducted in Farsi. The document was written in Farsi, which Qayoum neither reads, writes or speaks. And Qayoum's uncle only told him afterwards about the mandatory payments.

In short, by a 3-0 vote, the appeals court ultimately said there was no valid contract — and that Qayoum therefore didn't have to pay $20,000 to his ex-wife.

In case you're wondering, at current exchange rates, that would be a savings of 891,000 Afghanistan afghani.