In In re Ayad, 22-0078 (Tex. Sept. 23, 2022), the parties signed a document entitled “Islamic Pre-Nuptial Agreement” (“Agreement”), which set forth that any conflict that arose between the parties would be resolved according to the Qur’an, Sunnah, and Islamic Law in a Muslim court or in its absence by a three-person Fiqh panel. The petitioner filed for divorce in January 2021 and challenged the enforcement of the Agreement. The trial court did not address whether the Agreement was valid and enforceable but concluded that it had no discretion under the Texas General Arbitration Act but to enforce the Agreement. After being denied mandamus relief by the Court of Appeals, the petitioner sought mandamus relief from the Texas Supreme Court.

‍

The Texas Family Code alters the ordinary rule regarding determination of the validity of a contract containing an arbitration agreement

The Texas Supreme Court explained that under the ordinary rule, challenges to the validity or enforceability of the contract containing the arbitration agreement are decided by the arbitrator. However, Tex. Fam. Code § 6.6015(a) and Tex. Fam. Code § 153.00715(a) set out that if a party to a suit for dissolution of marriage or a suit affecting the parent-child relationship asserts that the contract containing the arbitration agreement is not valid or enforceable, then the court shall try the issue promptly and may order arbitration only if the court determines that the contract is valid and enforceable against the party seeking to avoid arbitration. 

‍

To comply with these sections, trial courts must try the issue and decide challenges before ordering arbitration

The Court explained that to comply with sections 6.6015(a) and 153.00715(a), when a party in a divorce or child custody proceeding challenges the validity of a contract containing an arbitration agreement, the trial court must try the issue and decide the challenges before ordering arbitration. 

‍

An appeal is an inadequate remedy

The Court explained that justice demands a speedy resolution of child custody and child support issues. In light of the trial’s court decision to reserve setting any hearing on temporary orders and to stay all proceedings pending arbitration, the Court found that an eventual appeal from a final judgment would be an inadequate remedy.

‍

Disposition

The Court conditionally granted the petitioner’s petition for writ of mandamus. The Court directed the trial court to withdraw its order referring the parties’ dispute to arbitration and to conduct further proceedings as required by the Family Code.