MAHR DOES NOT VIOLATE PUBLIC POLICY
California does not have a public policy favoring marriage over divorce. Nor does it maintain a public policy that disfavors one type of religious divorce over another. Yet for nearly four decades, courts have invoked a judicially constructed notion that certain agreements “promote divorce” and are therefore void as against public policy. That doctrine—frequently used to invalidate Islamic Mahr provisions—deserves reconsideration. Particularly now.
Beginning January 1, 2026, SB 1427 expands consensual dissolution procedures, allowing spouses who do not qualify for traditional summary dissolution to file a joint petition for dissolution or legal separation in a streamlined format. The process reduces procedural friction, lowers costs, and applies even where parties have children or assets beyond former summary limits. The legislative direction is unmistakable: facilitate orderly dissolution. Not deter it. And yet, the judicial refrain that agreements “promoting divorce” violate public policy persists.
FROM DICTA TO DOCTRINE
Public policy in California is ordinarily derived from enacted law—constitutional provisions, statutes, or firmly established precedent—not from generalized moral inference. The modern articulation of the “promotion of divorce” doctrine traces to In re Marriage of Noghrey, 169 Cal.App.3d 326 (1985). There, the Court of Appeal invalidated a Ketubah-style promise that required a substantial payment if the husband initiated divorce. The court reasoned that such a provision might encourage dissolution and therefore conflict with public policy.
In doing so, the court relied in part upon reasoning similar to Gross v. Gross, 11 Ohio St.3d 99 (1984)—an Ohio decision discussing agreements that might “promote divorce.” But California’s statutory schemes, since the enactment of no-fault dissolution in 1969, contain no categorical prohibition on divorce-triggered financial obligations. Indeed, California was the first state to permit unilateral dissolution upon proof of irreconcilable differences, without fault, without moral inquiry, and without judicial scrutiny of motive. The state does not evaluate why a marriage failed. It regulates only the economic consequences of that failure. If the Legislature believed divorce-triggered obligations were inherently suspect, it has had four decades to say so. It has not. Neither the California Constitution, nor the Penal Code, nor the Family Code declares such provisions void per se.
Yet Noghrey’s reasoning quickly shifted. Three years later, in In re Marriage of Dajani, 204 Cal.App.3d 1387 (1988), the court invalidated enforcement of a $1,700 Islamic Mahr as “promotive of divorce” when sought by the wife. The reasoning drew criticism. In In re Marriage of Bellio, 105 Cal.App.4th 630 (2003), the Court of Appeal stated plainly that Dajani “was wrongly decided.” The court observed that a modest payment upon dissolution is insufficient to jeopardize a viable marriage, and that enforceable premarital agreements may in fact encourage rather than discourage marriage. Notably, Bellio upheld a $100,000 payment provision, concluding it did not offend public policy.
The judicial landscape, therefore, is not uniform. It is fractured. And yet, despite legislative neutrality toward dissolution and judicial refinement, the misconception that Mahr is inherently “divorce-promotive” persists in some quarters.
COMPARATIVE JURISDICTIONAL ANALYSIS
California’s categorical preservation-based reasoning is not a national consensus:
- New York: New York courts apply neutral contract principles to Mahr enforcement, focusing on voluntariness and clarity.
- New Jersey: New Jersey courts have enforced Mahr where secular contract analysis suffices.
- Texas: Texas courts have recognized enforceability of Islamic marital agreements when contractual elements are satisfied.
- Maryland: Maryland courts have applied neutral principles to enforce Mahr without invoking preservationist policy.
CALIFORNIA’S LEGISLATIVE TRAJECTORY
If California maintained a dominant public policy favoring marital preservation over dissolution, one would expect: Fault-based restrictions. Financial deterrents. Mandatory reconciliation barriers
Instead, Dissolution is unilateral and no-fault. The state penalizes neither filing nor conditions exit upon moral justification. The Uniform Premarital Agreement Act permits parties to contract regarding the disposition of property upon dissolution. Spouses may waive spousal support (subject to statutory safeguards). SB 1427 further streamlines consensual dissolution procedures.
The trajectory is consistent: regulate consequences, not motives. In that framework, it becomes difficult to argue that financial provisions triggered by dissolution are inherently contrary to public policy.
THE CULTURAL CONTEXT OF MAHR
Mahr is frequently misunderstood. It is not a “divorce bonus.” It is not a litigation weapon.
It is not an incentive structure. It is a marital undertaking negotiated prior to marriage, embedded in religious and cultural tradition.
For many Muslim couples in California, Mahr functions as a deferred marital gift. A recognition of commitment. A culturally meaningful obligation. These couples marry with full awareness that California is a community property state. The Mahr supplements the statutory property framework; it does not displace it.
To characterize Mahr categorically as an incentive to divorce risks: Misunderstanding its cultural function. Conflating dissolution-triggered timing with divorce promotion. Creating unequal treatment of religious marital contracts.
If California’s Legislature has chosen neutrality toward dissolution—and indeed streamlined it—courts should exercise caution before invoking a policy of marital preservation that the Legislature has not expressly declared. The issue is not whether Mahr mirrors American prenuptial practice. The issue is whether California law prohibits it. Absent statutory conflict, invalidation risks transforming judicial instinct into legislative act.
SB 1427 AND THE CHANGING LANDSCAPE
The expansion of consensual divorce under SB 1427 underscores a broader reality:
California has moved toward efficiency, accessibility, and procedural neutrality in marital exit. The state now permits joint petitions for dissolution or legal separation without many of the historical limitations attached to summary procedures. Filing costs are effectively reduced; service is deemed accomplished through the joint petition; procedural friction is minimized. This is not the architecture of a state attempting to discourage divorce.
It is the architecture of a state managing it. Against that backdrop, continuing to invalidate religious marital undertakings on the theory that they “promote divorce” appears increasingly disconnected from legislative direction.
CONCLUSION
California regulates the consequences of divorce. It does not moralize its occurrence. Four decades after Noghrey, it may be time to ask whether the doctrine of “promotion of divorce” reflects enacted public policy—or an earlier judicial impulse that no longer aligns with California’s statutory reality. In a pluralistic, no-fault jurisdiction, contractual promises—religious or secular—should be evaluated under neutral contract principles: Capacity, Voluntariness, Disclosure, Unconscionability. Not under a judicially manufactured preference for marital endurance. A no-fault state should not sustain a fault-based suspicion of cultural marriage contracts. If California has chosen neutrality toward dissolution, its courts should do the same.
1 Part one (I) of this series, discussing Enforcement of Dowry in Arizona, was posted on August, 2023 (https://abbashadjian.com/time-to-retool-your-dowry-ware/).