FAUZIA PARBEEN v. MOHAMMED BARI

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FAUZIA PARBEEN,
Appellant,
v.
MOHAMMED BARI,
Appellee.
No. 4D21-431
[March 16, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. FMCE19-008159.
Cristobal D. Padron of Cristobal D. Padron & Associates, P.A., Coral
Gables, and Michael H. Wolf of Mike Wolf Law, PLLC, Fort Lauderdale, for
appellant.
Roberta G. Mandel of Mandel Law Group, P.A., Palmetto Bay, for
appellee.
FORST, J.
Appellant Fauzia Parbeen (“Former Wife”) appeals the trial court’s final
judgment of dissolution of marriage. On appeal, Former Wife argues the
trial court incorrectly found that the Islamic prenuptial agreement (“the
Mahr”) entered into by Former Wife and her ex-husband, appellee
Mohammed Bari (“Former Husband”), established a maximum amount of
recovery under Florida law. We agree with Former Wife and reverse the
trial court’s decision, remanding for further proceedings.
Background
This case concerns a prenuptial agreement made by the parties on
September 14, 2015, and its impact on their subsequent divorce. In lieu
of a conventional prenuptial agreement, the parties opted instead to enter
a type of traditional Islamic prenuptial contract known as a “Mahr.”
Although the agreement was entered into in Bangladesh, neither party
claims that it should be interpreted under the secular laws of that nation.
The parties’ Mahr agreement is only two pages long and contains few
legally operative clauses other than an explicit promise by Former
Husband to pay Former Wife fifteen lac Bangladeshi Taka (“15,00,000”
Taka). Five lac Taka would be paid upon marriage, and ten in the event of
a divorce. 1
The latter portion of the Mahr agreement became operative when
Former Husband filed a verified petition for dissolution of marriage on July
9, 2019. At the hearing on the petition, Former Wife argued that the ten
lac Taka provided for in the Mahr agreement was the minimum amount
she was owed by Former Husband and did not bar her from other forms
of relief, such as equitable distribution and temporary support. Former
Husband, however, claimed that the ten lac Taka owed to Former Wife
under the Mahr agreement served to cut off any other financial liability he
may have had, and thus was the maximum she could recover from the
divorce.
Despite finding that Former Wife had some equity in the marital home,
the trial court granted its title to the Former Husband and ordered Former
Wife to vacate the property upon receiving the payment of this equity. The
final judgment of dissolution of marriage concluded that the Mahr
agreement otherwise limited Former Wife’s recovery to ten lac Taka or
other property of equivalent value. Citing the language of the Mahr
agreement, the trial court denied Former Wife’s request for temporary
support.
While continuing to live in the marital home, Former Wife filed several
motions for rehearing which the trial court denied. Eventually, Former
Husband filed a motion to enforce the trial court’s final order and have
Former Wife removed from the marital home. This appeal follows.
Analysis
We review de novo the question of whether the Mahr agreement signed
by the parties serves to bar the Former Wife from recovery of an amount
greater than that specified in the agreement. See Hahamovitch v.
Hahamovitch, 133 So. 3d 1008, 1012 (Fla. 4th DCA 2014); Akileh v.
Elchahal, 666 So. 2d 246, 248 (Fla. 2d DCA 1996). Furthermore, we review
the sufficiency of factual findings made by the trial court for competent,
substantial evidence. § 61.075(3), Fla. Stat. (2020).
1The trial court determined that “10,00,000” Taka had a United States Dollar
value of $11,772.43.
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Former Husband and Former Wife both claim that the Mahr agreement
is enforceable under Florida law. They are correct in this assertion. We
have previously stated that prenuptial agreements are enforceable if they
were entered into freely—even if the agreement is objectively unreasonable.
Waton v. Waton, 887 So. 2d 419, 421 (Fla. 4th DCA 2004) (citing Casto v.
Casto, 508 So. 2d 330, 334 (Fla. 1987)). While Florida caselaw regarding
Mahr agreements is sparse, the Second District has held that they are
enforceable as prenuptial agreements. See Akileh, 666 So. 2d at 248 (“[A
Mahr’s] secular terms are enforceable as a contractual obligation,
notwithstanding that it was entered into as part of a religious ceremony.”
(quoting Aziz v. Aziz, 488 N.Y.S. 2d 123, 124 (N.Y. Sup. Ct. 1985))).
Here, the parties’ primary point of disagreement concerns how the
terms of the Mahr agreement should be interpreted. Former Husband
claims that, under traditional Islamic (“Shari’a”) law, a Mahr agreement
functions as a type of insurance meant to protect a dependent spouse in
the event of a divorce. According to Former Husband, concepts such as
equitable distribution and alimony are foreign in Islam and, outside of the
distribution of Former Wife’s equitable share of the marital home, the Mahr
should be read as the entirety of Former Wife’s recovery. Former Wife, on
the other hand, points to the total lack of language in the Mahr agreement
stating an intent to abrogate traditional notions of equitable distribution
and temporary support.
Akileh held that “Florida contract law applies to the secular terms of [a
Mahr agreement].” Id. Thus, while the parties to a prenuptial agreement—
Islamic or secular—may contract away their traditional marital rights, they
must do so in a way that comports with Florida law, which has a rebuttable
presumption in favor of equitable distribution of property in the event of a
divorce. See § 61.075(1), Fla. Stat. (2020).
To overcome that presumption, the prenuptial agreement’s plain
language must unambiguously express a desire to waive equitable
distribution. See Ledea-Genaro v. Genaro, 963 So. 2d 749, 752 (Fla. 4th
DCA 2007). Overcoming the presumption in favor of equitable distribution
requires more than a “boilerplate” reference to waiver. See Weymouth v.
Weymouth, 87 So. 3d 30, 35 (Fla. 4th DCA 2012). Furthermore, “[t]he
court may resort to rules of construction and extrinsic evidence only where
the contractual language is ambiguous.” Ledea-Genaro, 963 So. 2d at 752.
The same rules of contractual analysis apply to any prenuptial waiver
of temporary support. Khan v. Khan, 79 So. 3d 99, 100 (Fla. 4th DCA
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2012). “[A]n agreement of the parties that waives or limits the right to
request temporary support and attorney’s fees to a spouse in need in a
pending dissolution action is a violation of public policy.” Id. (citing
Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)).
In the instant case, the Mahr agreement’s plain meaning does not
unambiguously express a desire to waive equitable distribution or
temporary support. The Mahr agreement consists of a two-page pre-
printed form with relevant blanks filled in by typewriter. Most of the
information contained therein concerns the personal and familial details
of the couple, in addition to the date, witnesses, and other procedural
matters. Under “amount of dower,” the agreement reflects the following
insertion: “15,00,000 - (FIFTEEN LAC) TAKA ONLY,” five lac of which was
to be paid at the time of marriage. The Mahr agreement otherwise contains
no reference to distribution of the couple’s past, present, or future
property. As a result, the Mahr agreement cannot overcome the strong
public policy in favor of equitable distribution and, if circumstances merit,
temporary support.
Former Husband’s answer brief provides a detailed history of Mahr
agreements, characterizing it as a traditional Islamic legal instrument
intended to provide brides with a modicum of support in the event of a
divorce. According to Former Husband, concepts such as the equitable
distribution of property and temporary spousal support do not exist under
Shari’a law. However, according to Akileh, Florida contract law applies to
the secular terms of a Mahr agreement, and the Mahr agreement in this
case does not bar Former Wife from seeking temporary support, alimony,
or the equitable distribution of property. It states only that Former
Husband is to pay Former Wife ten lac Taka upon the dissolution of their
marriage. Consequently, the trial court erred when it held that the Mahr
agreement barred Former Wife from seeking additional forms of
distribution and support.
Conclusion
As set forth above, the trial court erred in ruling that the fifteen lac
Taka (five paid upon marriage, ten additionally paid if the parties divorce)
provided for in the Mahr agreement was the maximum recovery to which
Former Wife was entitled. Although the trial court appears to have made
determinations about the distribution of equity in the marital home,
alimony and attorney’s fees independent of its erroneous equitable
distribution ruling, we cannot discern whether that ruling affected these
other determinations. Thus, the issues with respect to the marital home,
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attorney’s fees and alimony (beyond the essentially bridge-the-gap alimony
provided by the Mahr agreement) should also be addressed anew by the
trial court on remand.
Reversed and remanded for further proceedings consistent with this
opinion.
CONNER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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