Supreme Court of Texas

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No. 22-0078

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In re Mariam Ayad,

Relator

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On Petition for Writ of Mandamus

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JUSTICE YOUNG, concurring in the grant of the motion for stay.

This petition presents serious issues that warrant this Court’s 

review at this stage. To ensure that our jurisdiction remains intact 

while we consider these issues, I concur in the grant of a stay. 

The parties to this case are a married couple in the midst of 

divorce. The couple signed (but hotly dispute the validity of) a 

premarital agreement, which provides that arbitration under religious 

law will resolve “[a]ny conflict” within the marriage. At issue is whether 

such an arbitration may or must proceed to resolve the dissolution of the 

marriage, including to determine the custody of the couple’s minor child. 

Both sides present weighty arguments.

In support of allowing the arbitration to proceed, for example, 

Texas law allows couples broad authority to reach agreements to settle 

matters related to their divorce. Likewise, Texas law has a strong public 

policy favoring the enforcement of arbitration agreements and a 

concomitantly strong policy disfavoring judicial stays of valid 

arbitrations. Texas law also forcefully protects our citizens’ religious 

liberty, including when it comes to how they order their own domestic 
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affairs. The premarital agreement here is predicated on the couple’s 

shared commitment to the principles of Islam.

On the other hand, the Family Code requires courts to consider

the children’s best interests in allocating responsibility for the children 

of a divorcing couple. Premarital agreements, while certainly 

authorized, may not violate public policy. And it is not clear that 

challenges to premarital agreements in the context of proceedings 

brought under the Family Code must await the conclusion of an 

arbitration that such an agreement contemplates. In any event, there 

are questions about whether this premarital agreement, including its 

arbitration provision, is valid and enforceable at all. Whether the courts 

are authorized to compel arbitration in this case, or whether additional 

process in the district court is required before that court could properly 

answer that question, is also unclear on this record. 

The district court creditably wrestled with these issues, which 

range from the procedural to the substantive, and ultimately concluded 

that the proper course was to allow the arbitration to play out. The court 

emphasized that any orders the arbitral panel might issue must pass 

through the court before they could be enforced. Even if, as the 

premarital agreement puts it, “[t]he law of the land will not be applied” 

by the arbitral panel, the law of the land will certainly be applied by the 

district court. That law includes the law of arbitration itself, the 

requirements of the Family Code, and the Texas and U.S. Constitutions. 

The district court’s conclusion was reasonable. A stay is 

nonetheless necessary so that we may carefully consider questions of 

importance to the jurisprudence of our State that transcend the dispute 

between these parties. Such questions include how and when to resolve 

this kind of dispute. Absent a stay, this Court’s jurisdiction would at 

the very least be imperiled, making it far harder for us to consider the 

propriety of a pre-enforcement challenge to a premarital agreement with 

an arbitration provision. 
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Of course, delays are never desirable when courts must resolve 

disputes involving minor children. But nothing stops the district court 

from continuing to manage divorce proceedings on an interim basis. 

Should the Court decide to request merits briefing, that briefing should 

be expedited so that we may consider the questions presented more 

rapidly than usual. We will then be postured to provide guidance that 

will serve these parties and others across Texas. Today’s stay does not 

prejudge any ultimate question, much less any of the subsidiary issues. 

For these reasons, I concur in the Court’s decision to grant a stay.

Evan A. Young

Justice