Bruce Nouri v. Shabnam Dadgar, No. 585, September Term, 2018

Bruce Nouri v. Shabnam Dadgar, No. 585, September Term, 2018; Mohammad Ghazirad

v. Fatemeh Mojarrad, No. 2273, September Term, 2018. Opinion by Fader, C.J.

CONSTITUTIONAL LAW — FIRST AMENDMENT — RELIGIOUS

CONTRACTS

Provisions in religious marriage contracts may be enforced by a Maryland court if, but

only if, their secular terms are enforceable under neutral principles of contract law.

FAMILY LAW — RELIGIOUS CONTRACTS — CONFIDENTIAL

RELATIONSHIP

For the provisions in Islamic marriage contracts known as mahrs, the correct neutral

principles to apply are those governing the enforcement of contracts entered into by parties

in a confidential relationship (such as premarital agreements).

FAMILY LAW — RELIGIOUS CONTRACTS — CONFIDENTIAL

RELATIONSHIP

The party seeking to enforce a mahr bears the burden to show that the mahr is an

enforceable contract and that it is not tainted by overreaching (i.e., that in the

atmosphere and environment of the confidential relationship there was no unfairness or

inequity in the result of the agreement or its procurement).

Circuit Court for Montgomery County

Case Nos. 134558 FL & 144190 FL

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 585 & 2273

September Term, 2018

______________________________________

BRUCE NOURI

SHABNAM DADGAR

______________________________________

MOHAMMAD GHAZIRAD

FATEMEH MOJARRAD

______________________________________

Fader, C.J.,

Meredith,

Shaw Geter,

JJ.

______________________________________

Opinion by Fader, C.J.

______________________________________

Filed: April 7, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document

authentic.

Suzanne C. Johnson, Clerk

Suzanne Johnson

2020-04-07 13:40-04:00

*This is an unreported

These two cases, consolidated for purposes of this opinion, present the same issue

of first impression in Maryland: May a civil court adjudicating a divorce enforce a

provision in a religious marriage contract that requires one spouse to make a payment to

the other?

We hold that a Maryland court may enforce such a provision only if, under

secular legal principles, the contract satisfies the requirements of an agreement entered into

by parties in a confidential relationship. That is, (1) “the burden of proof . . . falls upon the

party seeking to enforce the agreement,” Cannon v. Cannon, 384 Md. 537, 573 (2005); and

(2) “[t]he correct standard for determining the validity of [the] agreement . . . [is] whether

there is an ‘overreaching, that is, whether in the atmosphere and environment of the

confidential relationship there was unfairness or inequity in the result of the agreement or

procurement,’” id. (quoting Hartz v. Hartz, 248 Md. 47, 57 (1967)). We will vacate the

judgments and remand both cases so that the Circuit Court for Montgomery County may

determine whether the parties’ agreements meet that heightened standard.

BACKGROUND

Each of the couples in these consolidated cases was married in both a civil ceremony

and an Islamic religious ceremony. In connection with the Islamic ceremonies, each of the

couples entered a marriage contract that contains a mahr, a provision that, as relevant here,

required each of the husbands to pay a quantity of gold coins to each of the wives. The

This opinion focuses exclusively on the enforceability of such a provision—here,

a mahr—under Maryland civil law. We do not offer any opinion regarding the

enforceability of a mahr under Islamic law or under the law of any country that has

incorporated Islamic jurisprudence into its civil law. Cf. Aleem v. Aleem, 404 Md. 404,

406 n.1 (2008).

enforceability of those mahrs is the sole issue in each of these appeals. To provide context

for our analysis, we will first explore what a mahr is and then turn to the facts of the two

cases on appeal.

The Mahr

All four of the parties in these cases are of Iranian descent, and their Islamic

marriages were inspired by practice in Iran. Marriage in Islam is a contractual undertaking,

the basic elements of which are offer, acceptance, and mahr. See Jeanette Wakin, Family

Law in Islam, in 9 Encylopædia Iranica 184-96 (2012),

http://www.iranicaonline.org/articles/family-law (accessed Feb. 12, 2020). Mahr (also

sometimes called sadaqa)

is “a sum of money or some other economically valuable asset

that a husband must give to a wife.” Nathan B. Oman, How to Judge Shari’a Contracts:

A Guide to Islamic Marriage Agreements in American Courts, 2011 Utah L. Rev. 287, 302

(2011). Mahr is a religious obligation, prescribed by the Quran, that has been incorporated

into the civil law of many Muslim countries, including Iran. See Ziba Mir-Hosseini, Family

Law in Modern Persia, in 9 Encylopædia Iranica 184-96 (2012),

http://www.iranicaonline.org/articles/family-law (accessed Feb. 12, 2020). A mahr also is

included in the marriage contracts of many Muslim Americans who choose, like the

couples in these cases, to be married in an Islamic marriage ceremony.

The background presented in this section is derived from expert testimony

presented in both cases and, where indicated, secondary sources.

Mahr means “nuptial gift” in Arabic and other languages, whereas sadaqa means

“charity.” See Maulana Muhammad Ali, The Religion of Islam 323, 436 (4th ed. 2009).

A mahr may consist of “anything that has a value,” such as currency, see, e.g., Aleem

v. Aleem, 404 Md. 404, 408 (2008) (mahr was 51,000 Pakistani rupees); Seifeddine v.

Jaber, 934 N.W.2d 64 (Mich. Ct. App. 2019) (per curiam) ($50,000); Aziz v. Aziz, 488

N.Y.S.2d 123 (Sup. Ct. 1985) ($5,032), or, as in these cases, gold coins, a Quran, and a

hajj trip. The precise nature and amount of the mahr varies in each contract. Every Islamic

marriage contract must have a mahr, however, and if one is missing, then it will be implied.

See Lindsey E. Blenkhorn, Note, Islamic Marriage Contracts in American Courts:

Interpreting Mahr Agreements as Prenuptials and Their Effect on Muslim Women, 76 S.

Cal. L. Rev. 189, 200 (2002).

The mahr is a personal obligation of the groom to the bride, which, “[g]enerally

speaking[,] . . . is divided between an immediate gift to the wife” (the “prompt” or

“immediate” mahr) “and a deferred payment.” Oman, supra, at 291. In principle—or

sometimes, under the explicit terms of the contract—the wife is entitled to the deferred

mahr upon demand at any time following the marriage, and “any delay is a matter of

contractual forbearance on her part.” Id. at 302. In practice, though, “[s]uch delays are

standard,” and the deferred mahr typically becomes “due upon divorce or the husband’s

death.” Id.; Wakin, supra; see also, e.g., Qureshi v. Qureshi [1972] Fam. 173 [186] (Eng.)

(noting that the “sadaqa in the instant case amounted to a promise by the husband on behalf

of himself and his estate to pay to the wife the sum of 9,000 rupees . . . either (by agreement)

on demand at any time or (perforce) on the dissolution of the marriage by divorce or

death”).

The parties’ experts offered at least two explanations for the historical development

of mahr in Islamic marriage contracts. Each explanation is grounded in features of Islamic

law that differ from the law of Maryland. First, a mahr can operate as a disincentive for a

husband to exercise his disproportionate power to divorce his wife without cause under

Islamic law. Traditionally—and today, “where [ ] Islamic law has been adopted as the

secular law of a jurisdiction”—“a husband has a virtual automatic right to talaq, []i.e., to

divorce his wife by acknowledging ‘I divorce thee’ three times[].” Aleem, 404 Md. at 406

n.1. “[T]he wife only has a right to talaq if it is in the written marriage agreement or if [the

husband] otherwise delegates that right to her.” Id. Otherwise, she may obtain a divorce

only with her husband’s consent or for cause from an Islamic judge. If the husband invokes

his right of talaq, however, then the mahr generally becomes payable immediately. See

Wakin, supra; Oman, supra, at 305; see also Aleem, 404 Md. at 410 n.5 (characterizing a

mahr, as described in a pleading filed in that case, “as a means of controlling the husband’s

power of divorce, since upon dissolution of the marriage he is requi[r]ed to pay the total

amount of the [mahr] at once”).

Second, because Islamic law does not recognize marital property, a mahr can

provide a wife with some financial security in the event of divorce or the husband’s death.

Under traditional Islamic law, upon dissolution of a marriage, the wife is not entitled to a

disposition of marital property, nor does she have any claim to alimony or child support.

See Oman, supra, at 305-06. Absent operation of a civil law providing such rights, the

mahr is thus the exclusive compensation payable to the wife upon divorce. See Akbar

Aghajanian, Divorce in Modern Persia, in 7 Encylopædia Iranica 443-51 (2011),

http://www.iranicaonline.org/articles/divorce (accessed Feb. 12, 2020).

Although the governing laws in this country recognize marital property and do not

recognize talaq divorces, many American couples continue to enter Islamic marriage

contracts that contain mahrs. See Maha Alkhateeb, Islamic Marriage Contracts: A

Resource Guide for Legal Professionals, Advocates, Imams & Communities 18-22 (2012),

https://www.api-gbv.org/resources/islamic-marriage-contracts/ (accessed Feb. 12, 2020)

(describing marital practices among Muslim Americans). That includes the two cases

before us, as we now explain.

Nouri v. Dadgar

The appellant, Dr. Bruce Nouri, and the appellee, Dr. Shabnam Dadgar, were

married in two separate ceremonies in October 2005. As found by the circuit court, “[t]he

first ceremony took place in Iran; the parties participated from Northern Virginia by

conference call, while relatives, an Ayatollah, and other government officials were present

at the ceremony in Tehran. The second occurred at Montgomery County Circuit Court.”

The parties “agreed to a ‘mahr’ on the day of the Iranian marriage ceremony.” According

to its English translation,

the mahr contained two components, a Quran, which was

“handed to the bride” at the ceremony, “and a pledge of one thousand three hundred fifty-

The original marriage contract is written in Farsi. An English translation was

submitted to the circuit court, and its accuracy was uncontested by the parties.

three (1353) full ‘Spring of Freedom’ gold coins

[

]

for which the husband is totally liable

and shall hand them to the wife at any time she demands them.”

In its written opinion, the court noted that no one at trial “testified in detail about

the negotiation of the mahr.” Dr. Dadgar and her father both testified that the parties had

agreed on the amount of the mahr. Conversely, Dr. Nouri testified that he and Dr. Dadgar

had not discussed the amount of the mahr, and his father testified that Dr. Dadgar’s parents

had demanded the amount. The court ultimately found only that “Dr. Dadgar stated that

she discussed the mahr with Dr. Nouri and they agreed to the number of 1,353. It reflected

the year of her birth on the Iranian calendar.”

In March 2016, after the parties’ marriage soured, Dr. Nouri filed a complaint for

joint custody of the parties’ children and child support. Dr. Dadgar counterclaimed for

sole custody as well as support and maintenance for the children. Later, she amended her

counterclaim to seek an absolute divorce.

During the pendency of the proceedings in Montgomery County, each party also

initiated separate actions in Iran that were addressed, at least in part, to the validity of the

mahr. Dr. Dadgar began proceedings in Iran to enforce the mahr, but she withdrew her

filing shortly before her deposition in this case. Dr. Nouri filed a separate petition for an

The “Spring of Freedom” (in Farsi, Bahar Azadi) coin is the official Iranian gold

bullion coin. (The name refers to the season of the Iranian Revolution in 1979.) The value

of each coin “is linked to the world price of [ ] gold.” Leila Salarpour Goodarzi, Mahr and

Divorce: An Islamic Marriage Concept and Its Effects on Intrahousehold Bargaining

Power of Couples, 2d IZA Workshop: Gender and Family Economics n.2 (Apr. 20, 2018),

http://conference.iza.org/conference_files/Gender_2018/salarpour_goodarzi_l26070.pdf

(accessed Feb. 12, 2020). “In the past two decades, high inflation rates made the official

gold coin one of the most popular currencies for mahr” in Iran. Id. at 4.

annulment in Iran, which included a request that the Iranian court cancel his obligation to

pay the mahr. Dr. Dadgar did not participate in the annulment proceeding, and she testified

before the circuit court that she was not aware of it at the time. The Iranian court eventually

issued an ex parte order that annulled the parties’ marriage, but held that Dr. Nouri

remained obligated to pay Dr. Dadgar the mahr. According to a representation by Dr.

Nouri’s counsel during oral argument, his initial appeal from that ruling was unsuccessful,

but he might be pursuing further appellate review of the decision in Iran.

The mahr first seems to have been raised explicitly in the Maryland proceedings in

August 2017, when Dr. Nouri amended his complaint and asked the circuit court to “decree

that the Islamic Marriage Contract is unenforceable.” Dr. Dadgar responded by seeking

leave to amend her counterclaim in early November, asking the court to “issue an order

stating that the parties’ Muslim Marriage Contract is valid and enforceable” and to “enter

judgment in [Dr. Dadgar]’s favor . . . in the amount of $492,750.00 representing the fair

market value of one thousand three hundred fifty three (1,353) full ‘Spring of Freedom’

gold coins.” Dr. Nouri opposed Dr. Dadgar’s motion for leave to amend her counterclaim,

arguing that the amended counterclaim would be untimely and could lead to “inconsistent

results” due to the “parallel proceedings in Iran.” On the first day of trial, November 13,

2017, the circuit court granted Dr. Dadgar’s motion. The court acknowledged that the

amended counterclaim was “way out of time,” but noted, “that’s not unusual in these

cases.” The court concluded that the mahr was “part of what needs to be resolved.”

Following a five-day trial, the court issued a Judgment of Divorce accompanied by

a written opinion in which it discussed, among other things, the mahr. The court held that

the mahr, which the court valued at $492,750,

was a contractual obligation entered before

marriage, not a prenuptial agreement; that it was enforceable under neutral principles of

law; that it was not marital property; and that it did not violate Maryland law or public

policy. The court therefore ordered Dr. Nouri to pay the full amount of the mahr to Dr.

Dadgar.

Ghazirad v. Mojarrad

In Ghazirad v. Mojarrad, the appellant, Mohammad Ghazirad, and the appellee,

Fatemeh Mojarrad, were married in multiple ceremonies. The first ceremony was a civil

ceremony held on July 6, 2006 in Alabama. The second was an Islamic religious ceremony

held on July 22, 2006 in Manassas, Virginia. During that second ceremony, the parties

signed a one-page English language document entitled “Certificate of Marriage” that was

supplied by the officiant of the ceremony, Abolfazl Nahidian, the Director of the Islamic

Center of Manassas, Virginia. In addition to identifying the date of the ceremony, the bride

and groom, and the dates and places of their birth, and providing places for signatures of

the bride and groom and two witnesses, the document included the following sentence:

“The Sadaq being 500 Gold Coin, Hajj, QUR’AN of which QURAN advanced and 500

Coin & Hajj postponed.”

The circuit court found that this mahr “entitled [Ms. Mojarrad]

As the court noted, “[t]he parties were at odds about the dollar value of the mahr.”

Although we cannot identify precisely how the court calculated the value of the mahr, Dr.

Nouri has not challenged the valuation on appeal.

In the original document, the text that appears here in roman characters is typed

and the text in italics here is handwritten.

to Five Hundred Gold Coins,” worth “approximately Four Hundred and Fifty Dollars

($450) each,” “and a hajj trip,” which the court valued at between $5,000 and $10,000.

The parties also participated in a third event in Iran in 2007. Although

Ms. Mojarrad alleges that this was a third wedding ceremony, Mr. Ghazirad contends it

was merely a reception. Ms. Mojarrad asserts that the parties signed a second, much more

specific mahr at this third event. Approximately one week before trial, Ms. Mojarrad

produced for the first time a copy of the Farsi marriage contract that she claims the parties

signed in Iran. At trial, Mr. Ghazirad’s counsel contended that an English translation

Ms. Mojarrad had obtained was “incomplete.” During the testimony of Ms. Moharrad’s

Islamic law expert witness, the court suggested that the parties “have the witness just talk

about the Farsi version.” Ms. Mojarrad’s counsel accordingly asked her expert to translate

part of the document from the witness stand, which he did as follows:

[T]he sadaq, which is, again, is a mahr, is one book of God, the Quran, and

then, and then there is a 100,000 rials, and then, included with mirror and

some lighters and also one ring, 5,000,000 rials, that already given to her,

and she confessed that, and then there are 500 coin in the name of

(unintelligible), freedom, (unintelligible) freedom. That’s a kind of Iranian,

a very famous one. . . . In addition to one pilgrimage trip that is on his

shoulder, and when, ende-al-mutalebeh, the one which I said, when it is

asked for, then he has to give it to the wife. That’s the translation.

Mr. Ghazirad denied that the parties signed a second mahr and objected to the

introduction of the late-produced Farsi document. The court admitted the purported second

mahr into evidence but “recognize[d] there[ was] some disagreement” regarding its

authenticity. In its written opinion, the court noted the parties’ disagreement but did not

make any findings of fact regarding whether the Iranian event was a third wedding

ceremony or whether the parties entered a second mahr.

The alleged second mahr is more specific than the first in several respects, two of

which relate to the parties’ claims. First, whereas the Virginia mahr refers only to “gold

coin,” the alleged Farsi mahr, as translated and described, references a “very famous . . .

gold” Iranian “freedom” coin, which the court found was the Spring of Freedom gold

bullion coin. That difference appears not to have played a role in the court’s decision,

insofar as the court stated that it relied on testimony, and not the Farsi mahr, to identify the

value of the coins referenced in the Virginia mahr. Second, whereas the Virginia mahr

does not identify any payment terms, the Iranian mahr, as translated and described, states

that payment is due “when it is asked for.” It is unclear whether the court relied on the

Farsi mahr’s provision regarding the timing of the payment obligation. To the extent that

is relevant to the court’s decision on remand, the court will clarify that point.

The circuit court did not make any explicit findings of fact regarding the negotiation

of the mahr agreement. At trial, the parties offered contradictory testimony regarding how

they arrived at the amount of the mahr and why they entered the Islamic marriage.

Ms. Mojarrad testified that it was Mr. Ghazirad who “suggested the amount of the 500 [ ]

coins” in “April of 2006,” and that they “both agreed to it mutually.” She stated that

Mr. Ghazirad’s parents preferred a lesser amount, but that Mr. Ghazirad “want[ed] to just

do the 500.” Ms. Mojarrad testified that she entered into the mahr because “[i]t’s pretty

much a custom in the Iranian culture to have a mahr when you’re getting married. So, it’s

a cultural thing.” She also testified that the parties entered the Islamic marriage primarily

because Mr. Ghazirad’s “parents demanded it.”

Conversely, Mr. Ghazirad testified that Ms. Mojarrad’s parents determined the

amount of the mahr, and that although the two sets of parents discussed it before the

ceremony, the parties themselves “did not discuss it.” He also claimed that the hajj

provision “was introduced by Mr. Nahidian” at the wedding, but he acknowledged that he

agreed to it. In addition, Mr. Ghazirad acknowledged that he and Ms. Mojarrad discussed

getting married Islamically before the civil marriage; that his parents consulted with him

with regard to the mahr; that “there was [a] discussion about the gold coin[s],” specifically,

“[a]bout the number”; and that he had agreed to the amount.

In April 2017, after the parties’ marriage collapsed, Ms. Mojarrad filed a complaint

for absolute divorce. Among other relief, Ms. Mojarrad asked the court to enforce the

mahr. Mr. Ghazirad answered and filed a countercomplaint for absolute divorce. Unlike

in Nouri, neither party initiated any proceedings in Iran. The trial judge—who was the

same judge who had decided Nouri three months earlier—held that the mahr was

enforceable under neutral principles of law; that it was not marital property; and that it did

not violate Maryland law or public policy. The court therefore ruled that Ms. Mojarrad

was entitled to receive $225,000, the value the court assigned to the gold coins, from

Mr. Ghazirad.

DISCUSSION

On appeal from the bench trials in these cases, we “review the case on both the law

and the evidence.” Md. Rule 8-131(c). We “will not set aside the judgment of the trial

court on the evidence unless clearly erroneous, and will give due regard to the opportunity

of the trial court to judge the credibility of the witnesses.” Id. “‘Th[at] means that we may

not substitute our judgment for that of the fact finder, even if we might have reached a

different result,’ absent an abuse of discretion.” Gordon v. Gordon, 174 Md. App. 583,

626 (2007) (quoting Innerbichler v. Innerbichler, 132 Md. App. 207, 230 (2000)).

“[U]nder an abuse of discretion standard . . . ‘appellate courts will accord great deference

to the findings and judgments of trial judges, sitting in their equitable capacity, when

conducting divorce proceedings.’” Karmand v. Karmand, 145 Md. App. 317, 326 (2002)

The Judgment of Divorce directs Mr. Ghazirad to “pay to [Ms. Mojarrad] Four

Hundred and Fifty Spring of Freedom Gold coins ($225,000) (the mahr),” which reflects

the value in U.S. currency of five hundred coins worth $450 each. At trial, Ms. Mojarrad’s

expert testified that each Spring of Freedom coin was “on the market [for] around 19

million rial,” or “[a]round 450 U.S. dollars per coin.” Mr. Ghazirad objected to that

testimony as beyond the witness’s expertise, and the court overruled the objection. On

appeal, Mr. Ghazirad appears to acknowledge that the circuit court intended to order him

to pay the equivalent in U.S. currency of five hundred gold coins, and he has not challenged

the clarity of the court’s judgment in that respect or the valuation it placed on each Spring

of Freedom coin.

(quoting Tracey v. Tracey, 328 Md. 380, 385 (1992)). Still, the “trial court must exercise

its discretion in accordance with correct legal standards.” Gordon, 174 Md. App. at 626

(quoting Alston v. Alston, 331 Md. 496, 504 (1993)). To the extent that the decision

“involves an interpretation and application of Maryland statutory and case law, our Court

must determine whether the [trial] court’s conclusions are ‘legally correct’ under a de novo

standard of review.”

L.W. Wolfe Enters. v. Md. Nat’l Golf, 165 Md. App. 339, 344 (2005)

(quoting Walter v. Gunter, 367 Md. 386, 392 (2002)).

I. IF THESE MAHRS QUALIFY AS VALID AGREEMENTS UNDER “NEUTRAL

PRINCIPLES OF LAW,” THEN THEY MAY BE ENFORCED WITHOUT VIOLATING

THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.

Dr. Nouri and Mr. Ghazirad have challenged the enforceability of the mahrs on

several grounds, including under the Free Exercise Clause of the First Amendment to the

United States Constitution.

They argue that the mahrs cannot be enforced without

Although each of these cases might have presented choice-of-law issues, we

“exercise our discretion [to] apply the law of our State” because, at least before us, all

parties in both cases have “proceeded on the assumption that Maryland law governs.” See

Cain v. Midland Funding, 452 Md. 141, 151 n.9 (2017). In neither case has any party

asked us to apply the law of a different jurisdiction to determine the enforceability of the

mahrs in a Maryland court.

At trial in Nouri, Dr. Nouri argued that “[i]f [Dr. Dadgar] had filed initially to

[enforce the mahr] here,” then the parties “would essentially be . . . pleading Iranian law

. . . as to whether or not . . . she is entitled to the Mahr,” and “the Court would actually

almost had to [have] s[a]t as an Iranian court to make those determinations under Iranian

law.” We do not think that statement, phrased as a hypothetical, constituted a request for

the trial court to apply Iranian law. In any event, Dr. Nouri does not argue on appeal that

the trial court erred in applying Maryland law.

Article 36 of the Maryland Declaration of Rights provides a unique, additional

guarantee of religious freedom, but Dr. Nouri and Mr. Ghazirad have not invoked the

protection of that provision and have limited their arguments to the First Amendment. We

therefore confine our analysis to the federal constitutional right.

interpreting religious doctrine, a function that the Free Exercise Clause forbids secular

courts to perform. Dr. Dadgar and Ms. Mojarrad respond that the mahrs do not offend the

Free Exercise Clause because they may be enforced as secular contracts under “neutral

principles of law.”

We agree with Dr. Dadgar and Ms. Mojarrad that mahrs may, in principle, be

enforced as secular contracts if they are enforceable under neutral principles of contract

law. In other words, if the secular terms of a mahr would satisfy all the elements of an

equivalent civil contract, then a Maryland court may enforce the mahr notwithstanding the

religious context in which it was entered. We also hold, however, that because both of the

contracts before us were entered in contemplation of marriage, the applicable secular legal

framework is that governing agreements entered into by parties in a confidential

relationship. See generally Cannon v. Cannon, 384 Md. 537 (2005). Thus, a Maryland

court may enforce a mahr without violating public policy only if the mahr constitutes a

valid contract between parties in a confidential relationship.

A. Civil Courts May Resolve Secular Disputes that Arise in Religious

Contexts Provided that They Are Able to Do So by Applying

“Neutral Principles of Law.”

The First Amendment, as applied to the states through the Fourteenth Amendment,

see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that each State “shall

make no law respecting an establishment of religion, or prohibiting the free exercise

thereof,” U.S. Const., amend. 1. “The first of the two Clauses, commonly called the

Establishment Clause, commands a separation of church and state. The second, the Free

Exercise Clause, requires government respect for, and noninterference with, the religious

beliefs and practices of our Nation’s people.” Cutter v. Wilkinson, 544 U.S. 709, 719

(2005).

“The Supreme Court has held that both the Free Exercise and Establishment Clauses

of the First Amendment prohibit judicial review of religious questions,” Lang v. Levi, 198

Md. App. 154, 169 (2011), lest the courts stumble into a “theological thicket,” Mt. Olive

AME Church v. Bd. of Incorporators of AME Church, 348 Md. 299, 309 (1997) (quoting

Md. & Va. Eldership of Churches of God v. Church of God at Sharpsburg, 249 Md. 650,

660 (1968), vacated, 393 U.S. 528 (1969), reaff’d on remand, 254 Md. 162 (1969), appeal

dismissed, 396 U.S. 367 (1970)). In particular, “the First Amendment prohibits civil courts

from resolving . . . disputes on the basis of religious doctrine and practice.” Jones v. Wolf,

443 U.S. 595, 602 (1979). Not only must courts refrain from “adjudicat[ing] matters of

church doctrine or governance,” Downs v. Roman Catholic Archbishop of Balt., 111 Md.

App. 616, 622 (1996), but they must also avoid deciding secular cases in ways that might

lead to “entanglement in questions of religious doctrine, polity, and practice,” From the

Heart Church Ministries v. AME Zion Church, 370 Md. 152, 179 (2002) (quoting Jones,

443 U.S. at 603).

The First Amendment does not “proscrib[e] all inquiry by a court of church disputes,

but only those dealing with ‘questions of discipline, or of faith, or ecclesiastical rule,

custom, or law.’” Mt. Olive AME Church, 348 Md. at 311 (quoting Calvary Presbyterian

Church of Balt. City v. Presbytery of Balt. of United Presbyterian Church in U.S., 39 Md.

App. 405, 417 (1978) (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 727-29 (1871))).

Indeed, it might itself violate the Amendment for a court to refuse to adjudicate a matter

simply because it arose in a religious context or in a document with religious origins. See,

e.g., Trinity Lutheran Church of Columb. v. Comer, __ U.S. __, 137 S. Ct. 2012, 2021

(2017) (“The Free Exercise Clause protects against laws that ‘impose[ ] special disabilities

on the basis of . . . religious status.’” (quoting Church of the Lukumi Babalu Aye v. City of

Hialeah, 508 U.S. 520, 532 (1993))); McDaniel v. Paty, 435 U.S. 618, 626 (1978) (the Free

Exercise Clause prohibits “depriving [people] of a civil right solely because of their

religious beliefs”); see also Bd. of Educ. v. Grumet, 512 U.S. 687, 717 (1994) (O’Connor,

J., concurring in part and concurring in the judgment) (“The Religion Clauses prohibit the

government from favoring religion, but they provide no warrant for discriminating against

religion.”). Therefore, civil courts may resolve disputes that arise in religious contexts “so

long as the relevant inquiry is whether the question can be decided ‘on the basis of neutral

principles of law which do not involve the resolution by the court of ecclesiastical issues,’

or doctrinal proprieties.” Mt. Olive AME Church, 348 Md. at 312 (quoting Calvary

Presbyterian Church, 39 Md. App. at 417).

The Court of Appeals has defined “neutral principles of law” as “principles that are

‘applicable not only to religious bodies, but to public and private lay organizations and to

civil governments as well.’” From the Heart Church Ministries, 370 Md. at 180 (quoting

Kennedy v. Gray, 807 P.2d 670, 676 (Kan. 1991)). They may include, for example,

“principles of the common law,” id. (quoting Moses v. Diocese of Colorado, 863 P.2d 310,

320 (Colo. 1993)) (emphasis removed), as well as “the ordinary indicia of property rights,”

From the Heart Church Ministries, 370 Md. at 181 (quoting Serbian Orthodox Church v.

Kelemen, 256 N.E.2d 212, 215 (Ohio 1970)).

Of course, the appropriate “neutral principles” to apply will vary with the subject

matter of the case. In a property dispute—the context in which the “neutral principles of

law” doctrine was first developed—courts turn to “objective, well-established concepts of

trust and property law.” From the Heart Church Ministries, 370 Md. at 179 (quoting Jones,

443 U.S. at 603). In a contract dispute, “neutral principles of law may be derived from a

state’s common law of contracts.” Seifeddine, 934 N.W.2d at 69; accord From the Heart

Church Ministries, 370 Md. at 181 (Some “disputes among members of a congregation . . .

are not doctrinal disputes. Some are simply disputes as to the meaning of agreements on

wills, trusts, contracts, and property ownership.” (quoting Presbytery of Beaver-Butler of

United Presbyterian Church v. Middlesex Presbyterian Church, 489 A.2d 1317, 1320-21

(Pa. 1985))); see also Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 355 (D.C.

2005) (concluding that “the rules . . . governing the formation, interpretation, and

enforcement of contracts . . . are ‘neutral principles of law’ that civil courts may apply” in

deciding cases that arise out of a religious context). The crucial point is that the court must

be able to “resolve the [] dispute on the basis of neutral principles of law which do not

involve the resolution by the court of ecclesiastical issues.” Mt. Olive AME Church, 348

Md. at 311 (quoting Polen v. Cox, 259 Md. 25, 30 (1970)); see also Aleem, 404 Md. at 406

n.1 (stating that the Court’s holding regarding talaq divorces “only relates to instances

where Islamic law, or parts thereof such as talaq, is also the secular (civil) law of a country

whose judgments we are urged to accept under the doctrine of comity,” and that “[t]he

viability of Islamic law as a religious canon is not intended to be affected”).

Thus, a mahr may be enforced by a Maryland court if, but only if: (1) it can be

interpreted under “neutral principles of [contract] law,” without court involvement “in any

theological or doctrinal matter,” Am. Union of Baptists v. Trs. of Particular Primitive

Baptist Church at Black Rock, 335 Md. 564, 575-76 (1994); and (2) “scrutinize[d] . . . in

purely secular terms,” it constitutes an enforceable agreement, see From the Heart Church

Ministries, 370 Md. at 187 (quoting Jones, 443 U.S. at 604).

By holding that a mahr is enforceable only if it may be construed without

adjudicating matters of religious doctrine, we do not mean that a court must ignore entirely

the context in which the agreement is made. To the extent that context surrounding the

agreement informs the court’s interpretation of its objective terms, a civil court may

investigate that context in the same manner as it would for any other contract. See Ocean

Petrol. Co. v. Yanek, 416 Md. 74, 88 (2010) (“We employ an objective approach to contract

construction . . . by considering the plain language of the disputed provisions in context,

which includes not only the text of the entire contract but also the contract’s character,

purpose, and ‘the facts and circumstances of the parties at the time of execution.’” (quoting

Pac. Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388 (1985))); Della Ratta,

Inc. v. Am. Better Cmty. Devs., 38 Md. App. 119, 130 (1977) (“Where the language of a

contract is ambiguous or susceptible to different interpretations, the court . . . may consider

evidence of such extrinsic factors as the negotiations of the parties, the circumstances

surrounding execution of the contract, the parties’ own construction of the contract and the

conduct of the parties.”). But the purpose in examining that context must be “shed[ding]

light on the intentions of the parties,” see John L. Mattingly Constr. v. Hartford

Underwriters Ins., 415 Md. 313, 326 (2010) (“Mattingly”) (quoting Sy-Lene of Wash. v.

Starwood Urban Retail II, 376 Md. 157, 167-68 (2003)), not interpreting religious doctrine.

B. Mahrs May Be Enforced Without Violating the First Amendment

Provided that Their Secular Terms Satisfy the Requirements for

Contracts Entered Into by Parties in a Confidential Relationship.

Applying the “neutral principles of law” approach, we reject Dr. Nouri’s and

Mr. Ghazirad’s argument that mahrs, in general, cannot be enforced without running afoul

of the federal Constitution. That does not mean, of course, that all mahrs are enforceable.

Instead, it means that the enforceability of any particular mahr will depend on whether its

secular terms—construed according to the ordinary rules of contract interpretation—are

enforceable under the applicable secular legal framework. On that point, we are fully in

agreement with the Circuit Court for Montgomery County. Where we part ways with that

court’s analysis is in its identification of the applicable secular legal framework. Whereas

the circuit court analyzed the mahrs as standard contracts between parties presumably

operating at arm’s length, we conclude that they are more appropriately considered under

the more stringent standards applied to contracts entered into by parties in a confidential

relationship. Before turning to that analysis, we discuss case law from other jurisdictions

that have addressed this issue.

i. Courts in Other Jurisdictions Generally Agree that Mahrs

May Be Enforced by Secular Courts Under Neutral

Principles of Contract Law.

Reported cases regarding the enforceability of mahrs are scarce, and reported

opinions from our sister appellate courts even more so. Nevertheless, courts in other

jurisdictions that have addressed the question generally have agreed that mahrs may be

enforced by secular courts to the extent that they are enforceable under neutral principles

of contract law. The circuit court relied on two such opinions, one issued by a trial court

in New Jersey, Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ct. Ch. Div. 2002), and the

other issued by a trial court in New York, Aziz v. Aziz, 488 N.Y.S.2d 123 (Sup. Ct. 1985).

In Odatalla, a wife involved in a divorce proceeding sought specific performance

of a $10,000 mahr. 810 A.2d at 307-08. The court determined that a mahr is enforceable

if it meets a “two prong test”: (1) the provision is “capable of specific performance under

‘neutral principles of law,’” and (2) “once those ‘neutral principles of law’ are applied, the

agreement in question meets the state’s standards for those ‘neutral principles of law.’” Id.

at 313. Videotape evidence showed the parties and their families negotiating the amount

of the mahr and then writing and signing the agreement, after which the groom gave the

bride the nominal immediate payment. Id. at 308. Based on that evidence, the court held

that the mahr was enforceable and not contrary to public policy because it was “nothing

more and nothing less than a simple contract between two consenting adults.” Id. at 314.

In Aziz, a New York trial court similarly enforced a mahr provision within the

context of a divorce action, concluding that the mahr’s “secular terms [were] enforceable

as a contractual obligation, notwithstanding that it was entered as part of a religious

ceremony.” 488 N.Y.S.2d at 124; see also S.B. v. W.A., 959 N.Y.S.2d 802, 803 (Sup. Ct.

2012) (in holding that a foreign judgment enforcing a mahr was entitled to recognition,

reasoning that “[s]ince a Mahr agreement may be enforced according to neutral principles

of law, it will survive any constitutional challenge and be enforceable as a contractual

obligation”), aff’d sub nom. Badawi v. Wael Mounir Alesawy, 24 N.Y.S.3d 683 (App. Div.

2016); Akileh v. Elchahal, 666 So. 2d 246, 248 (Fla. Dist. Ct. App. 1996) (applying

“Florida contract law . . . to the secular terms of the sadaq” and holding that a mahr

negotiated before marriage was a valid “antenuptial contract, executed in contemplation of

a forthcoming marriage,” with the marriage serving as valid consideration).

Other courts have agreed that mahrs may be enforceable under neutral principles of

law, but, after applying those principles, have declined to enforce the particular mahrs

before them. For example, in In re Marriage of Obaidi & Qayoum, Washington’s

intermediate appellate court agreed that the case could be resolved by treating the mahr as

“a prenuptial agreement” and “[a]pplying the neutral principles of contract law.” 226 P.3d

787, 788, 790 (Wash. Ct. App. 2010). The court held the mahr before it unenforceable,

however, because “there was no meeting of the minds on the essential terms of the

agreement.” Id. at 791. The mahr had “no term promising to pay and no term explaining

why or when the [amount of the mahr] would be paid.” Id. In addition, the husband had

not been told about the mahr until 15 minutes before the agreement was signed; the

agreement was negotiated and written in Farsi, which he “d[id] not read, write, or speak”;

and he had no “opportunity to consult with counsel.” Id. The court therefore reversed the

trial court’s judgment enforcing the mahr. Id. at 792; see also Ravasizadeh v. Niakosari,

112 N.E.3d 807, 812-13 (Mass. App. Ct. 2018) (agreeing that “a mahr agreement may be

enforced according to neutral principles of law” as a contractual obligation, but holding

that “where the parties ha[d] submitted [the issue of the enforceability] to the jurisdiction

of the Iranian courts,” the court would “apply the rule of comity and not disturb the ruling

of the Iranian courts”); Ahmed v. Ahmed, 261 S.W.3d 190, 194, 195-96 (Tex. Ct. App.

2008) (holding that a mahr was unenforceable as a premarital agreement under Texas law

because it did not satisfy statutory requirements, but remanding for trial court to determine

whether the agreement was otherwise valid).

ii. The Applicable Legal Framework to Determine the

Enforceability of a Mahr Is the Framework Applicable to

Contracts Entered Into by Parties in a Confidential

Relationship.

Having concluded that a secular court may enforce a mahr if its secular terms are

enforceable under neutral principles of contract law, we must now decide which neutral

principles to apply. Dr. Dadgar and Ms. Mojarrad contend—and the circuit court agreed—

that the proper legal framework to apply is that governing ordinary contracts between

parties operating at arm’s length. Conversely, Dr. Nouri and Mr. Ghazirad argue that the

correct legal framework is the heightened standard governing premarital agreements. We

hold that where parties agree to enter a mahr in contemplation of marriage, as occurred in

these cases, they are presumed to be in a confidential relationship as a matter of law.

In In re Marriage of Turfe, 233 Cal. Rptr. 3d 315 (Ct. App. 2018), as modified on

denial of reh’g (June 8, 2018), California’s intermediate appellate court also discussed the

nature of a mahr. There, a husband requested an annulment based on his contention that

his wife had committed fraud by representing that she would abide by the terms of a mahr.

The mahr at issue provided for “5 Golden coins paid in advance and a copy of Quran

deferred.” Id. at 318 (internal footnote omitted). The husband argued that the deferred

portion of the mahr—the Quran—was the sum total of what the wife agreed to accept if

the parties divorced, and he alleged that she had committed fraud when she led him to

believe that she would abide by that term. Id. Observing that “religious scholars disagree

as to whether the consideration specified in the mahr agreement is the sum total of what

wife may recover in the event of divorce,” the appellate court affirmed the trial court’s

judgment that the “wife did not deceive husband with respect to her intentions in entering

into the mahr agreement.” Id. at 322.

Therefore, the agreements are enforceable only if they satisfy the requirements for the

enforcement of agreements entered into by parties in a confidential relationship.

In determining which framework to apply to the mahrs in these consolidated cases,

we are guided by the decision of the Court of Appeals in Cannon v. Cannon, which

reexamined “the proper analysis of challenges to antenuptial agreements in Maryland law

and the role, if any, in that analysis of an asserted confidential relationship between the

parties to such agreements.” 384 Md. 537, 543 (2005). In Cannon, the Court traced the

evolution of the legal analysis of premarital agreements in Maryland. The Court first

observed that premarital agreements are contracts, and so—like all other contracts—they

must be reviewed “under the objective law of contract interpretation.”

Id. at 553.

Similarly, like all other contracts, premarital agreements must be reviewed “for good faith,

consideration, and the parties’ objective intent,” id., and may be invalidated “for fraud,

duress, coercion, mistake, undue influence, or a party’s incompetence,” or

“unconscionability at the time the contract was entered,” id. at 554. Finally, as a general

matter, “a party seeking to invalidate a contract who demonstrates that a confidential

“Maryland adheres to the principle of the objective interpretation of contracts,”

Cochran v. Norkunas, 398 Md. 1, 16 (2007), under which “[w]hen the clear language of a

contract is unambiguous, the court will give effect to its plain, ordinary, and usual meaning,

taking into account the context in which it is used,” Mattingly, 415 Md. at 326 (quoting Sy-

Lene of Wash., 376 Md. at 167). When a “contract is ambiguous,” however, “the court

must consider any extrinsic evidence which sheds light on the intentions of the parties at

the time of the execution of the contract.” Mattingly, 415 Md. at 327 (quoting Sy-Lene of

Wash., 376 Md. at 167-68). “The extrinsic evidence admitted must help interpret the

ambiguous language and not be used to contradict other, unambiguous language in the

contract.” Calomiris v. Woods, 353 Md. 425, 441 (1999).

relationship existed between the parties thrusts the burden of proof to establish the validity

of the contract on the party attempting to enforce the contract.” Id. at 555.

The Court then reviewed its prior application of those general precepts of contract

law to premarital agreements, and ultimately re-affirmed its “view that a confidential

relationship exists, as a matter of law, between the parties entering an antenuptial

agreement.” Id. at 570. To the extent that premarital agreements are treated differently

from other contracts, the Court observed, that is a consequence of the legal presumption of

a confidential relationship. Id. at 572. Although that presumption “may be rebutted in a

given case by the party seeking enforcement of the agreement,” id., if it is not rebutted,

then the existence of the confidential relationship means that: (1) “the burden of proof

correctly falls upon the party seeking to enforce the agreement,” id. at 573; and (2) the

“correct standard for determining the validity of an antenuptial agreement [is] . . . whether

there is an ‘overreaching, that is, whether in the atmosphere and environment of the

confidential relationship there was unfairness or inequity in the result of the agreement or

procurement,’” id. (quoting Hartz v. Hartz, 248 Md. 47, 57 (1967)). The party seeking to

enforce the agreement may show the absence of overreaching in a number of ways. He or

she may (a) “document[] a full, frank, and truthful disclosure of his or her assets and their

worth before the antenuptial agreement is signed,” (b) demonstrate the other party’s

“knowledge of th[ose] assets,” (c) show that the agreement “was not unfairly

disproportionate . . . at the time the agreement was entered,” or (d) otherwise prove that

“overreaching did not occur.” Id. at 573-74. With respect to the last option, the Court

suggested that “the trial court may consider such factors as the extent of the disclosure (if

any), whether the attacking party had the opportunity to seek legal advice before signing

the agreement, and whether the attacking party voluntarily and knowingly relinquished his

or her rights.” Id. at 574.

Most notably for our purposes, Cannon makes clear that the heightened standard

applicable to a premarital agreement is triggered by “the presumption of a confidential

relationship” between the parties. See id. at 571. Because the law presumes a “confidential

relationship [exists] . . . between the parties entering into that kind of an agreement,”

Stewart v. Stewart, 214 Md. App. 458, 468 (2013), courts reviewing premarital agreements

must reallocate the burden of proof and examine whether the agreement at issue is unfair

or inequitable, see Cannon, 384 Md. at 572-73. In determining whether we should apply

that same framework to a mahr, then, the question is not whether a mahr is identical in all

respects to the premarital agreements our courts have more frequently encountered, but

rather whether parties enter a mahr in circumstances where “a confidential relationship is

presumed to exist as a matter of law.” Id. at 572. We conclude that they do.

Here, both sets of parties entered their respective mahrs in conjunction with their

Islamic marriage ceremonies, which in both cases were roughly contemporaneous with

their secular marriage ceremonies, and both negotiated the terms of the mahrs while they

were engaged and in anticipation of their forthcoming marriages. In both cases, the

agreements “rel[ied] upon marriage as consideration,” see Cannon, 384 Md. at 556 n.8,

and “disposed of rights [or] property” between the prospective spouses, see id. at 561-62.

In other words, these mahrs are agreements (1) entered into by parties who were engaged

to be married, (2) that purport to direct the allocation of certain property during or at the

conclusion of the marriage, and (3) for which marriage serves as the consideration. Those

are the same circumstances that give rise to the presumption of a confidential relationship

when parties enter (other) premarital agreements. See id. at 571 (“[W]hen parties in a pre-

marital relationship enter an antenuptial agreement where the consideration for the

agreement is the impending marriage, a confidential relationship necessarily arises.”); see

also In re Marriage of Bonds, 5 P.3d 815, 829 (Cal. 2000) (identifying aspects of premarital

contracts that differ from commercial contracts, including that (1) “the parties generally

enter into the agreement anticipating that it never will be invoked,” and (2) “the agreement

. . . exists to provide for eventualities that will arise only if the relationship founders,

possibly in the distant future under greatly changed and unforeseeable circumstances”).

Dr. Dadgar and Ms. Mojarrad observe, correctly, that mahrs are not identical to

premarital agreements our courts have previously considered. Although that is true, none

of the differences they identify are material to whether the agreements are entered in the

context of a confidential relationship, which is the critical factor for determining whether

to apply heightened review. One difference is that although a traditional premarital

agreement is entered before the wedding ceremony, the parties to a mahr generally enter

the agreement as part of the ceremony. See Oman, 2011 Utah L. Rev. at 322. That

difference does not, however, render the parties’ relationship any less confidential at the

time that they negotiate (usually before, and sometimes at, the ceremony) and enter the

agreement. Similarly, the Islamic wedding ceremony at which the mahr is traditionally

entered either may precede the parties’ civil marriage, as in Nouri, or succeed it, as in

Ghazirad, but that also does not render the parties’ relationship at the time any less

confidential, at least where the ceremonies are roughly contemporaneous and are treated

by the parties as related steps in establishing their marital bond.

Dr. Dadgar and Ms. Mojarrad also point out that a mahr generally is limited to

addressing the disposition of a particular asset (in these cases, gold coins and a Quran) or

obligation (a hajj trip), whereas (other) premarital agreements generally resolve issues

related to support and the division of the parties’ rights and assets more comprehensively.

That difference, as well, is not material to whether the agreements are entered in the context

of a confidential relationship. Moreover, there is no legal requirement that premarital

agreements be comprehensive. For example, Maryland courts have analyzed as premarital

agreements contracts that provided only for the transfer of certain specified assets, see, e.g.,

Schnepfe v. Schnepfe, 108 Md. 139 (1908) (husband reserved 52 shares of stock for purpose

of satisfying obligation to pay wife $12,000 upon his death), and have enforced premarital

agreements that applied only to a portion of the marital estate, see, e.g., Stewart, 214 Md.

App. at 472 n.4 (premarital agreement waived wife’s interest in husband’s company and

certain other premarital property, but not her interest in alimony and marital property).

A final difference with respect to these particular mahrs, and the one relied on by

the circuit court in Nouri, is that “[a] divorce is not required for a Wife to obtain the funds

from the mahr.” As an initial matter, we observe that this feature is not necessarily

common to all mahrs. The parties’ experts in both cases indicated that, at least in principle,

a mahr is payable upon the wife’s demand at any time. See also Oman, supra, at 302

(“Upon marriage the wife is entitled to the mahr; any delay is a matter of contractual

forbearance on her part.”). Other authorities have observed, however, “that by Islamic

custom, the demand for payment of the Mahr Agreement is usually not made unless there

is the death of the husband or a divorce action.” Odatalla, 810 A.2d at 97-98; see also

Oman, supra, at 302 (“Such delays are standard . . . . [A]lmost always, . . . the bulk of the

mahr [is] due upon divorce or the husband’s death.”). Regardless, the difference does not

determine whether the contract was entered in the context of a confidential relationship.

Indeed, at oral argument, Dr. Dadgar’s counsel conceded that Dr. Nouri and her client were

in a confidential relationship at the time they agreed to the mahr. That, without more, is

sufficient to invoke heightened review. Accordingly, we hold that mahrs should be

scrutinized under “the stringent tests” applicable to a “confidential relationship.”

Frey v.

Frey, 298 Md. 552, 564 (1984).

In an argument that is unique to his case, Mr. Ghazirad argues that his mahr lacked

consideration because he and Ms. Mojarrad entered it several weeks after they were

married civilly. Thus, Mr. Ghazirad contends, the marriage could not have been

consideration for the mahr because the parties already were married at the time the

agreement was signed. For two reasons, we disagree.

Some commentators have argued that mahrs should not be analyzed as premarital

agreements because, in light of the absence of marital property in Islamic law, they “are

not intended to alter the parties’ rights to property upon divorce.” Oman, supra, at 305-06,

323; see also, e.g., Brian H. Bix, Marriage Agreements and Religion, 2016 U. Ill. L. Rev.

1665, 1670-71 (2016); Lindsey E. Blenkhorn, Note, Islamic Marriage Contracts in

American Courts: Interpreting Mahr Agreements as Prenuptials and Their Effect on

Muslim Women, 76 S. Cal. L. Rev. 189, 203-04 (2002). However, as explained in Cannon,

we subject premarital agreements to heightened review not because they alter the parties’

default entitlements under the law, but because of the presumed confidential relationship

of the parties at the time they are entered. In each case, regardless of which party ultimately

would be advantaged or disadvantaged by enforcement of a mahr, a court must determine

if the mahr is overreaching—that is to say, whether it is fair in result and procurement.

First, although the agreement was not entered until the Islamic marriage ceremony,

both parties testified that the terms of the mahr had been negotiated before they were

married civilly. In fact, the parties’ civil marriage and their Islamic marriage both

comprised parts of the same nuptial transaction: one ceremony satisfied the demands of

the civil government and the other met the requirements of the couple’s religious tradition

and culture. Nothing in the record suggests that in considering whether Mr. Ghazirad and

Ms. Mojarrad were in a confidential relationship at the time they entered the mahr, we

should accord significance to the order in which their wedding ceremonies happened to

occur.

Second, Mr. Ghazirad’s argument does not recognize that the parties valued the

Islamic marriage ceremony itself, separate and apart from the civil marriage. See

Seifeddine, 934 N.W.2d at 70 (noting that “[t]he trial court found that the consideration for

the [ ] mahr was the Islamic marriage ceremony”). Ms. Mojarrad testified that “[Mr.

Ghazirad’s] parents were the one[s] that were pushing for the Islamic marriage to be done

after [she and Mr. Ghazirad] did the civil marriage.” When asked at trial, “What’s the

significance of having an Islamic marriage to you? . . . Why did you do it?” Ms. Mojarrad

answered, “Pretty much, you know, his parents demanded it.” Mr. Ghazirad, for his part,

We would not necessarily reach the same conclusion if the parties had negotiated

and entered the mahr at a significantly later date. That is because “a confidential

relationship arising during a marriage is not presumed to exist as a matter of law, but rather,

is a question of fact.” Stewart, 214 Md. App. at 480 n.9. Here, however, the two

ceremonies occurred approximately two weeks apart, the mahr was negotiated in advance

of both, and both ceremonies were treated by the parties as part of a single marriage

transaction.

testified that “because [Ms. Mojarrad’s] family is [ ] religious” he and she “had to perform

the Islamic marriage.” He said that he and Ms. Mojarrad “both agreed” that they “wanted

to get this [marriage] done and then . . . make sure it’s [under] Islamic law that [they] were

considered wife and husband.” As reflected in testimony, the parties and their families

continued to place significant value on the Islamic marriage ceremony separate and apart

from the civil marriage ceremony.

In summary, at the time the parties in these cases entered their respective mahrs,

they were in relationships that were presumptively confidential as a matter of law. As a

result, unless the party seeking to enforce the agreement rebuts the presumption, the mahrs

may be enforced only if their secular terms satisfy the heightened standards applicable to

agreements between parties in a confidential relationship. To give the circuit court the

opportunity to apply those standards, we will vacate the judgments in both cases and

remand them to the circuit court.

C. To the Extent that the Mahrs in These Cases Constitute Valid

Contracts Between Parties in a Confidential Relationship, They

Are Not Void as Against Public Policy.

Along with their First Amendment challenge, Dr. Nouri and Mr. Ghazirad also

argue that their respective mahrs are void as against public policy in several respects. They

contend that the mahrs: (1) violate Maryland’s public policy preference for “equitable

distribution and fairness in divorce actions”; (2) unreasonably encourage divorce; and

Ahmed v. Ahmed, 261 S.W.3d 190 (Tex. Ct. App. 2008), on which Mr. Ghazirad

relies for the proposition that a mahr is not a premarital agreement, is inapposite. That case

involved the requirements of a Texas statute that, unlike under Maryland law, defined

premarital agreements based on certain specified criteria.

(3) constitute “dowers,” which Maryland abolished in 1969. See Md. Code Ann., Estates

& Trusts § 3-202 (1974). Dr. Dadgar and Ms. Mojarrad respond that the mahrs (1) do not

conflict with Maryland’s public policy preference for equitable distribution; (2) do not

unreasonably encourage divorce because “payment was not contingent upon dissolution of

the parties’ marriage[s]”; and (3) do not constitute “dowers” under Maryland law. We

agree with Dr. Dadgar and Ms. Mojarrad.

First, properly construed and analyzed as contracts between parties in a confidential

relationship, the mahrs do not conflict with public policy because Maryland law expressly

permits couples to enter contracts that alter the presumptive consequences of the

dissolution of a marriage. See Md. Code Ann., Family Law § 8-201(e)(3)(iii) (Repl. 2019)

(excluding from the definition of “marital property” any property that is “excluded by valid

agreement”); see also Cannon, 384 Md. at 561 (noting that premarital agreements “allow[]

parties to agree ‘what property is not to be considered marital property or family use

personal property’ and thus ‘control the distribution of property upon divorce’” (quoting

Frey, 298 Md. at 562)). In other words, although “the ‘default’ under Maryland law is that

[each spouse] has marital property rights in property titled in the [other]’s name,” that

default rule may be overcome by “a premarital or post-marital agreement that validly

relinquishe[s] . . . rights in marital property.” Aleem v. Aleem, 404 Md. 404, 407-08 (2008)

(quoting Aleem v. Aleem, 175 Md. App. 663, 681 (2007)). So long as the secular terms of

such agreements satisfy the heightened scrutiny applied to contracts entered into by parties

in a confidential relationship, public policy does not prevent their enforcement.

See

Cannon, 384 Md. at 573-74.

Second, the mahrs do not unreasonably encourage divorce. Neither of these mahrs

is expressly contingent on divorce. Thus, In re Marriage of Noghrey, 215 Cal. Rptr. 153

(Ct. App. 1985), on which Dr. Nouri and Mr. Ghazirad both rely, is inapposite.

There,

the California intermediate appellate court addressed the enforceability of a ketubah

provision that promised the wife “$500,000.00 or one-half of [the husband’s] assets,

whichever is greater, in the event of a divorce.” Id. at 154. The court held that the provision

“encourage[d] and promote[d] divorce” and was therefore “contrary to the public policy of

To avoid any misunderstanding, we add a cautionary note about our holding

today. As we observed above, one purpose attributed to mahrs—as they developed in

societies governed by legal systems that do not recognize marital property—is to provide

women a means of support after divorce or the husband’s death. As a result, some have

argued that entering a mahr constitutes an implied waiver of rights to marital property, a

monetary award, or spousal support. E.g., Turfe, 233 Cal. Rptr. 3d at 318 (summarizing

husband’s argument); see also Chaudry v. Chaudry, 388 A.2d 1000, 1006 (N.J. App. Div.

1978) (holding that a Pakistani-American “wife [was] not entitled to equitable distribution

by reason of the antenuptial agreement [mahr], which . . . could have lawfully provided for

giving her an interest in her husband’s property, but [ ] contained no such provision”); but

see Aleem v. Aleem, 175 Md. App. 663, 675-76 (2007) (declining to follow Chaudry), aff’d,

404 Md. 404 (2008); cf. Blenkhorn, supra, at 205 (criticizing Chaudry). Neither Dr. Nouri

nor Mr. Ghazirad has advanced that argument here. In any event, based on our holding

that mahrs may be enforced only if their purely secular terms satisfy the heightened

standards applicable to agreements entered into by parties in a confidential relationship,

we do not see how any such purportedly implied waiver could ever be enforceable in a

Maryland court.

Dr. Nouri and Mr. Ghazirad also cite Neilson v. Neilson, 780 P.2d 1264 (Utah Ct.

App. 1989), and In re Marriage of Dajani, 251 Cal. Rptr. 871 (Ct. App. 1988), which are

to similar effect as Noghrey and inapposite for the same reasons.

A ketubah is a Jewish marriage contract, similar for present purposes to an Islamic

marriage contract. See, e.g., Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983).

th[e] state and unenforceable.” Id. at 155. It reasoned that the agreement “constitute[d] a

promise by the husband to give the wife a very substantial amount of money and

property, but only upon the occurrence of a divorce.” Id. at 156. If “the husband suffer[ed]

an untimely demise,” conversely, then that would “nullify[] the contract, and the wife’s

right to the money and property.” Id. The ketubah provision thus “encouraged [the wife]

. . . to seek a dissolution, and with all deliberate speed,” to obtain the amount promised.

Id.

Here, unlike the agreement in Noghrey, neither of the agreements is expressly

contingent on divorce, nor is either subject to cancellation upon the husband’s death.

Moreover, one purpose for which mahrs exist generally is to discourage divorce, see

Aleem, 404 Md. at 410 n.5, and nothing in the record of either case suggests that the

prospect of a mahr payment actually encouraged the breakup of either marriage. Although

the contents of most premarital agreements could, depending on circumstances, be deemed

to encourage one party or the other to seek a divorce—or at least to make that path more

palatable—Dr. Nouri and Mr. Ghazirad have not demonstrated that mahrs generally, or

these mahrs specifically, unreasonably “encourage[d] or promote[d] dissolution” of

marriage in violation of public policy. See In re Marriage of Dawley, 551 P.2d 323, 329

(Cal. 1976) (en banc).

Third, mahrs are not “dowers.” Although the words “dower” and “dowry” share a

common etymology,

the concepts are different. “Dower is a common-law right of a

surviving widow to a life estate in one-third of the inheritable real estate owned by the

husband during the coverture” (i.e., the marriage). Silberman v. Jacobs, 259 Md. 1, 7

(1970) (quoting Lefteris v. Poole, 234 Md. 34, 38 (1964)). “Dowry,” conversely, was, at

common law, “[t]he money, goods, or property that a woman br[ought] to her husband in

marriage.” Black’s Law Dictionary, “dowry,” at 622 (11th ed. 2019). Even if the mahr

could be characterized as a form of “dowry,” it bears no relation to the estate of “dower,”

which was a common law right, not a contractual one. See In re Marriage of Dajani, 251

Cal. Rptr. at 871 n.2 (“‘Dower,’ in modern use, is distinguished from ‘dowry.’ The former

is a provision for a widow on her husband’s death; the latter is a bride’s portion on her

marriage.” (quoting Black’s Law Dictionary, “dower,” at 581 (4th ed. 1951)); see also,

e.g., United States v. Schippers, 982 F. Supp. 2d 948, 960 (S.D. Iowa 2013) (“A ‘dower’

right is not to be confused with ‘dowry’ . . . .”). Thus, the enforceability of the mahrs in

these cases is unaffected by the abolition of the estate of dower. As discussed above,

Maryland has not abolished the ability of parties to enter contracts in contemplation of

marriage that govern disposition of their assets at a later date.

Both ultimately derive from the Latin word dotarium, meaning marriage portion.

See Dower, Merriam-Webster (2020), https://www.merriam-

webster.com/dictionary/dower (accessed Feb. 13, 2020); Dowry, Merriam-Webster (2020),

https://www.merriam-webster.com/dictionary/dowry (accessed Feb. 13, 2020).

Finally, Dr. Nouri also argues before us that mahrs violate the federal Constitution’s

Equal Protection Clause because, as a matter of Islamic religious practice, they are payable

only by men to women, and never by women to men. Dr. Nouri has not preserved this

contention for our review, however, because he did not present it for decision to the circuit

court.

See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other

issue unless it plainly appears by the record to have been raised in or decided by the trial

court . . . .”).

II. ON REMAND, THE CIRCUIT COURT MUST DETERMINE WHETHER THE MAHRS

ARE ENFORCEABLE AS CONTRACTS BETWEEN PARTIES IN A CONFIDENTIAL

RELATIONSHIP UNDER NEUTRAL PRINCIPLES OF LAW.

On remand, the circuit court must consider whether the mahrs in these cases may

be enforced as contracts entered between parties in a confidential relationship.

In Dr. Nouri’s reply brief, he contends that the claim was “fully briefed in [a]

Post-Trial Memorandum.” But Dr. Nouri has not provided a copy of such a memorandum

in the record extract or in an appendix to either of his briefs, nor has he even pointed us to

a page of the record where we could expect to find that argument. It is not this Court’s

obligation to comb the record for support for a party’s position.

If we were to reach Dr. Nouri’s equal protection argument, we are skeptical that it

would succeed. The essence of the argument is that under Islamic religious law, a mahr is

an obligation that runs from a man to a woman, and never the other way. As we have

discussed at length, however, the duty of a secular court is to interpret the secular terms of

a contract, not Islamic (or any other) religious law. We do not consider, much less pass

judgment on, any religious doctrines or personal beliefs that may have motivated parties to

enter a mahr or craft its terms, and we will enforce the secular terms of the agreement

provided they are valid under neutral principles of law and do not offend the laws or public

policy of our State or federal governments. Indeed, a Maryland court would not treat any

differently an identically-worded provision running from a woman to a man or between

individuals of the same sex and gender, whether contained in an Islamic marriage contract,

a contract arising in a different religious context, or an entirely secular agreement. Here,

the secular terms of Dr. Nouri’s mahr require him to pay Dr. Dadgar a certain sum.

Enforcing one spouse’s agreement to make a payment to the other does not offend

guarantees of equal protection.

Accordingly, Dr. Dadgar and Ms. Mojarrad will bear the burden to show, first, that the

agreements meet the standards for validity of all contracts. The contracts must be

supported by mutual assent manifested by “(1) intent to be bound, and (2) definiteness of

terms,” as well as by consideration. See Falls Garden Condo. Ass’n v. Falls Homeowners

Ass’n, 441 Md. 290, 302 (2015) (quoting Cochran v. Norkunas, 398 Md. 1, 14 (2007)); see

also Lillian C. Blentlinger, LLC v. Cleanwater Linganore, 456 Md. 272, 302 (2017) (“To

be binding and enforceable, contracts ordinarily require consideration. In Maryland,

consideration may be established by showing a benefit to the promisor or a detriment to

the promisee.” (quoting Cheek v. United Healthcare of Mid-Atl., 378 Md. 139, 147-49

(2003))). Beyond that, Dr. Dadgar and Ms. Mojarrad must show that the agreement each

entered was not the product of “overreaching, that is, whether in the atmosphere and

environment of the confidential relationship there was unfairness or inequity in the result

of the agreement or in its procurement.” Cannon, 384 Md. at 559 (emphasis removed)

(quoting Hartz, 248 Md. at 57). In other words, “[t]he agreement must be fair and equitable

in procurement and result.” Frey, 298 Md. at 563.

Both Dr. Nouri and Mr. Ghazirad raise issues that might be relevant to whether the

agreements, at the time they were entered, were fair and equitable in procurement or result.

Mr. Ghazirad, for example, contends that he did not have the capacity to pay the amount

of the mahr at the time it was entered, apparently to suggest that his intent was to show his

commitment to the marriage, not to agree to assume a debt he was incapable of satisfying.

That contention, and any others that are relevant to considering the validity of the mahrs,

are for the circuit court to address in the first instance.

III. THE CIRCUIT COURT DID NOT ERR IN PERMITTING DR. DADGAR TO AMEND

HER COUNTERCLAIM.

Dr. Nouri raises one additional issue, unique to his case. He contends that the circuit

court erred in permitting Dr. Dadgar to amend her counterclaim less than ten days before

trial to request expressly that the court adjudicate the enforceability of the mahr. Dr. Nouri

argues that Dr. Dadgar’s belated amendment did not comply with Rule 2-341,

and that it

prejudiced him by “interject[ing] a new element into the case immediately prior to trial.”

Dr. Nouri and Mr. Ghazirad both argue that if the mahrs they entered are

enforceable by a Maryland court, the amount of the mahr should be considered marital

property. In light of our resolution of the other issues they raise, we need not address that

matter, which necessarily will be left for another day.

Rule 2-341, governing amendments, provides in relevant part:

(a) Without Leave of Court. A party may file an amendment to a pleading

without leave of court by the date set forth in a scheduling order or, if there is

no scheduling order, no later than 30 days before a scheduled trial date. . . .

(b) With Leave of Court. A party may file an amendment to a pleading after

the dates set forth in section (a) of this Rule only with leave of court. . . .

defense, (2) set forth a better statement of facts concerning any matter already

raised in a pleading, (3) set forth transactions or events that have occurred

since the filing of the pleading sought to be amended, (4) correct misnomer

of a party, (5) correct misjoinder or nonjoinder of a party so long as one of

the original plaintiffs and one of the original defendants remain as parties to

the action, (6) add a party or parties, (7) make any other appropriate change.

Amendments shall be freely allowed when justice so permits. . . .

Dr. Nouri also asserts that Dr. Dadgar failed to comply with Rule 2-331, governing

counterclaims. Because Dr. Dadgar’s filing was an amendment of a timely-filed

counterclaim, however, it is Rule 2-341 that applies.

Dr. Dadgar responds that Dr. Nouri was not prejudiced by the amendment because “[t]he

issue of the Mahr was well known to all parties involved from” the beginning of the case.

Maryland courts have imposed a “liberal construction . . . on the allowance of

amendments to pleadings.” Ski Roundtop v. Wagerman, 79 Md. App. 357, 371 (1989).

Although “[t]he determination to allow amendments to pleadings or to grant leave to amend

pleadings is within the sound discretion of the trial judge,” Schmerling v. Injured Workers’

Ins. Fund, 368 Md. 434, 443-44 (2002), such “amendments should be freely allowed in

order to promote justice,” Crowe v. Houseworth, 272 Md. 481, 485 (1974); see Rule

2-341(c) (“Amendments shall be freely allowed when justice so permits.”). We prefer that

“cases [ ] be tried on their merits rather than upon the niceties of pleading,” Crowe, 272

Md. at 485, especially when they concern an equitable matter such as divorce. See

McMahon v. Piazze, 162 Md. App. 588, 599 (2005) (indicating that court should have

“allow[ed] amendment” in a child custody case because “the issue is the best interest of a

child, an issue that is not ordinarily decided on a point of pleading”). Here, where the trial

court allowed the untimely amendment, we will not reverse its decision “in the absence of

a clear showing of an abuse of discretion.” Crowe, 272 Md. at 489.

The primary situation in which “an amendment should not be allowed” is where “it

would result in prejudice to the opposing party.” RRC Northeast v. BAA Md., 413 Md.

638, 673-74 (2010). As the party opposing the amendment, Dr. Nouri bore the burden of

showing that he would be prejudiced. See Mattvidi Assocs. Ltd. P’ship v. NationsBank of

Va., 100 Md. App. 71, 80 (1994). He made no such showing in this case.

Although Dr. Nouri asserts that Dr. Dadgar’s claim for the mahr added “an entirely

new cause of action,” to which he did not have time to respond prior to trial, the record

shows that the mahr was a significant issue from the outset of the case. Indeed, it was

Dr. Nouri who first introduced the mahr into the pleadings, by amending his complaint to

add a request that the circuit court “decree that the Islamic Marriage Contract is

unenforceable.” Both parties designated expert witnesses on Iranian law almost a year

before trial, and those experts testified at length regarding the validity of the mahr. The

parties themselves and their relatives also testified at trial concerning the negotiation of the

mahr and their understanding of its terms. Dr. Nouri admits that irrespective of whether

Dr. Dadgar amended her counterclaim, the trial court needed to “be aware of [the Iranian

litigation] in fashioning a monetary award.” In sum, after Dr. Dadgar’s amendment of her

counterclaim, “‘the operative factual situation’ . . . ‘remain[ed] essentially the same’ as that

alleged in the prior pleading[s].” See Youmans v. Douron, Inc., 211 Md. App. 274, 291

(2013) (quoting Crowe, 272 Md. at 485-86). Therefore, Dr. Dadgar’s request to amend her

counterclaim did not introduce unfairly “a ‘new cause of action’” days before trial. See id.

Dr. Nouri argued to the circuit court that he had been prejudiced because he had not

had time to “address[] . . . constitutional issues” regarding the enforceability of the mahr

in American courts. However, in the amended complaint he filed before Dr. Dadgar sought

leave to amend her counterclaim, Dr. Nouri had listed eight different reasons why he

believed the mahr was unenforceable, including that it conflicted with Maryland public

policy and federal law and that it was overreaching and unconscionable. We cannot

understand why Dr. Dadgar’s amended claim, but not his own, would have led Dr. Nouri

to consider for the first time constitutional issues regarding the enforceability of a mahr.

Dr. Nouri also contends that the circuit court should not have addressed the

enforceability of the mahr so as to avoid the possibility of inconsistent or duplicative

judgments. He cites Bajgain v. Bajgain, 769 S.E.2d 267 (Va. Ct. App. 2015), for the

proposition that the circuit court should have deferred to the Iranian court to avoid the

possibility of a “double award.” As he acknowledges candidly, though, “Bajgain is clearly

distinguishable.” There, a husband filed for divorce in Virginia and his wife initiated

parallel proceedings in the couple’s home country of Nepal. Bajgain, 769 S.E.2d at 269.

While the Nepal case was pending, the couple asked the court to stay the Virginia

proceedings and stipulated that “[i]f the court in Nepal . . . set[] forth orders regarding

certain pieces of property, then those pieces of property would not be re-litigated in th[e]

[Virginia] court.” Id. at 270. Subsequently, the court in Nepal issued an order dividing the

couple’s property, and the husband moved to dismiss his wife’s claim for equitable

distribution in Virginia. Id. The Virginia court granted the husband’s motion on the basis

that the decision in Nepal was res judicata. Id. at 270-71. Virginia’s intermediate appellate

court affirmed, holding that the “wife agreed to be bound by whatever issues were resolved

to finality in Nepali courts.” Id. at 274.

Here, by contrast, the parties never entered a “joint stipulation not to relitigate issues

litigated to finality in” Iran, see id. at 275, nor did they ever both participate in the same

proceeding to resolve the issue in Iran. By the time Dr. Dadgar amended her counterclaim,

she had withdrawn her attempt to collect the mahr in Iran, and she was not a party to—and

apparently did not know about—the Iranian annulment proceeding in which Dr. Nouri

attempted unsuccessfully to void the mahr. Dr. Nouri may have believed that the parties

agreed implicitly to resolve the mahr issue in Iran, but that belief does not have the

preclusive effect of the on-the-record joint stipulation in Bajgain. See id. at 276 (“[T]he

stipulation’s preclusive effect . . . forecloses wife from sidestepping the adverse judgment

that she obtained in Nepal.”). That is particularly so because it was Dr. Nouri, not Dr.

Dadgar, who first raised the issue of the mahr in the Maryland proceedings.

“[I]t is the rare situation in which a court should not grant leave to amend.” RRC

Northeast, 413 Md. at 673. This case does not present such a situation. Because Dr. Nouri

“suffered no prejudice from the belated filing,” see Schmerling, 368 Md. at 457, we hold

that the court did not abuse its discretion in permitting Dr. Dadgar’s amendment.

CONCLUSION

We hold:

1. Provisions in religious contracts such as mahrs may be enforced by a

Maryland court if, and only if, their secular terms are enforceable under

neutral principles of contract law.

If either party had requested that the circuit court defer to the Iranian proceedings,

then the court would have needed to consider whether to do so under principles of comity.

See generally Apenyo v. Apenyo, 202 Md. App. 401 (2011); Johns Hopkins Health Sys.

Corp. v. Al Reem Gen. Trading & Co.’s Rep. Est., 374 F. Supp. 2d 465 (D. Md. 2005); cf.

Ravasizadeh v. Niakosari, 112 N.E.3d 807, 813 (Mass. App. Ct. 2018) (deciding to “apply

the rule of comity and not [to] disturb the ruling of the Iranian courts” regarding a disputed

mahr because “[b]oth parties ha[d] submitted the mahr to the jurisdiction of the courts in

Iran and neither ha[d] argued that those courts should not decide the matter” (emphasis

added)). Here, however, that did not happen. Instead, both parties sought orders from the

circuit court declaring the enforceability of the mahr. Cf. Ravasizadeh, 112 N.E.3d at 813

(reasoning that abstention in favor of foreign proceedings was appropriate because “the

parties . . . ha[d] not sought enforcement of the mahr in Massachusetts courts”).

2. For mahrs such as those at issue here, the neutral principles to apply are those

governing the enforcement of contracts entered into by parties in a

confidential relationship.

3. Remand is required in these cases so that the circuit court may determine

whether the parties seeking to enforce the mahrs have shown that they are

enforceable and not tainted by “overreaching, that is, whether in the

atmosphere and environment of the confidential relationship there was

unfairness or inequity in the result of the agreement or procurement.”

Cannon v. Cannon, 384 Md. 537, 573 (2005) (quoting Hartz v. Hartz, 248

Md. 47, 57 (1967)).

JUDGMENTS OF THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

VACATED. CASES REMANDED FOR

FURTHER PROCEEDINGS CONSISTENT

WITH THIS OPINION. COSTS TO BE

PAID BY APPELLEES.