Wolfgang Wurmnest

The Tale of the mahr – Characterisation of Islamic Dower Agreements Die Mär von der mahr – Zur Qualifikation von Ansprüchen aus Brautgabevereinbarungen

Volume 71 () / Issue 3, pp. 527-558 (32)

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Marriage among Muslims usually implies an agreement on dower (Arabic: mahr, s. adāq), i.e. the transfer of property or a sum of money from the husband to the wife. The disbursement of the dower is often deferred and becomes payable upon divorce or death of the husband. Should the wife demand her dower before a German court, the question arises which law is applicable to her claim. As there is no special conflicts rule for mahr-agreements in the German EGBGB, one has to apply the provision which best captures the scope and function of this foreign legal institution.As many tales circulate about the »exotic« mahr, this article examines the nature and origin of dower agreements. It is demonstrated that the mahr is not a peculiarity of Islamic law. Equivalent institutes are the kětubba in Jewish law and to a lesser extent the Morgengabe of the Austrian Civil Code. Historically, also the Roman donatio ante nuptias and the German Wittum were similar legal institutions.Against this background the article scrutinizes the various functions which were attributed to dower agreements under classical Islamic law. It is argued that its main purpose has evolved over time. Whereas early classical Islamic law regarded the dower as price in exchange for sexual relations and deterrent against arbitrary divorce, nowadays its main purpose is to ensure the wife's participation in the economic development of her husband's wealth during marriage. When determining the applicable law, the German judge must consider this change. It is therefore argued that the appropriate conflicts provision for characterising Islamic dower agreements is, the rule trea ting marital property regimes, i.e. Art. 15 EGBGB.Finally, the article examines the way the Islamic dower is transposed into German law in divorce proceedings entirely governed by the lex fori. The article advocates that the wife's claim for dower should stand side-by-side with claims for alimony and Zugewinnausgleich. As dower and Zugewinnausgleich assume similar functions, the amount of the dower has to be reduced in accordance with § 1380 BGB. While respecting the principle of party autonomy, this solution avoids a double financial burden on the husband and contributes to smooth integration of the dower into German family law.

Wolfgang Wurmnest ist Inhaber des Lehrstuhls für Bürgerliches Recht, Wirtschaftsrecht, Internationales Privat- und Zivilverfahrensrecht sowie Rechtsvergleichung an der Juristischen Fakultät der Universität Augsburg.