Court Must Decide Validity and Enforceability of Arbitration Agreement in Divorce Cases

iStock-1287431987-300x200Texas prenuptial agreements may include a provision requiring arbitration in the event of a divorce.  The Texas Family Code includes provisions making arbitration of divorce cases different from the arbitration of other types of cases.  A wife recently sought mandamus relief after the trial court ordered arbitration pursuant to a prenuptial agreement.

Parties Executed Islamic Premarital Agreement

According to the court’s opinion, the parties had executed an “Islamic Pre-Nuptial Agreement.” It included a provision requiring resolution of conflicts in accordance with Islamic law by either in a Muslim court or by a three-member Fiqh panel.

The wife denied knowing the contents of the agreement when it was executed.  She claimed she thought it was a second copy of the parties’ marriage contract.

Wife Files for Divorce

She filed for divorce in early 2021 and the husband filed a motion to enforce their agreement.  The wife challenged enforcement of the agreement, arguing it was unconscionable and void against public policy. She further argued “Islamic Law” was too vague.

At the hearing, the court focused on the alleged ambiguity of the phrase “Islamic Law.”  An imam provided expert testimony on behalf of the father, but the court concluded the issue was a legal question and would not let the wife testify on the issue.  The trial court decided to order arbitration.

Both parties and the husband’s expert testified at another hearing to address whether the parties had voluntarily entered into the agreement.

Trial Court Enforces Agreement to Arbitrate

The trial court determined it did not have discretion to do anything other than enforce the agreement to arbitrate. It stayed proceedings pending the arbitration and denied the wife’s request for mandamus relief. The court noted in its order that it would review an arbitration award based on foreign law to determine if it “violates constitutional rights or public policy.”

The wife then sought mandamus relief from the Texas Supreme Court.

Pursuant to Tex. Fam. Code § 6.601, a court “may” refer Texas divorce cases to arbitration based on an agreement between the parties. Tex. Fam. Code § 153.0071 applies to suits affecting the parent child relationship.   Generally, arbitrators are responsible for determining the arbitration agreement’s validity and enforceability, but Texas family law places that determination with the court. If a party challenges the validity or enforceability of the agreement before the arbitration, the court must try the issue and only order arbitration if it determines the arbitration agreement is valid and enforceable.  The court is responsible for making this determination even if the agreement provides otherwise. Tex. Fam. Code § 6.6015(a) and 153.00715(a).

Following the arbitration, the court must render an order reflecting the award.  In a suit affecting the parent child relationship, the court must render the order reflecting the arbitration reward unless it finds the award was not in the child’s best interest.  A party may challenge enforcement of an award based on foreign law that violates public policy or constitutional rights.  Tex. R. Civ. P. 308b(d)(2).  Either way, there must be a hearing and findings of fact and conclusions of law.  Tex. R. Civ. P. 308b(f).

Texas Supreme Court Finds Error in Referring Case to Arbitration Prematurely

The Texas Supreme Court concluded the trial court abused its discretion in referring the matter to arbitration without hearing the mother’s validity and enforceability challenges.  The trial court indicated it would determine after the arbitration if the award violated constitutional rights or public policy.  The Texas Supreme Court noted that this process was contrary to the requirements of Tex. Fam. Code §§ 6.6015 and 153.00715.  The trial court is required to hear and decide challenges to the validity or enforceability of an arbitration agreement in a divorce or custody case before referring the matter to arbitration.

The Texas Supreme Court also rejected the husband’s argument that the wife was not entitled to mandamus relief because she could challenge an arbitration award based on foreign law pursuant to Tex. R. Civ. P. 308b(d)(2).   An ability to challenge the award on public policy grounds after the arbitration under Rule 308b did not address the wife’s challenges to the validity of the agreement itself.  The court also pointed out that the legislature had provided for validity and enforceability challenges to arbitration agreements in divorce cases to be decided before arbitration.  Post-arbitration proceedings would not be adequate.

The court also concluded that an appeal from a final judgment would not be an adequate remedy in this case where the trial court had stayed all proceedings and refused to set hearings on temporary orders.  This action resulted in a delay in determining custody and support issues. Mandamus relief was appropriate in this case.

The Texas Supreme Court conditionally granted the wife’s petition for writ of mandamus.  The court directed the trial court to conduct further proceedings, with the writ issuing only if the trial court fails to comply.

Enforcing Premarital Agreements Can be Complex; Call McClure Law Group Today

If you signed a prenuptial agreement including an arbitration provision, a skilled Texas divorce attorney can advise you on your options.  Contact McClure Law Group at 214.692.8200 to discuss your case.


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