The Marriage Contract
Goals
of this Chapter
-
Definition
of some important fiqh terms including arkaan, shuroot,
sahih, baatil and faasid.
-
The
different conditions and/or prerequisites needed for a marriage
contract to be considered valid, enforceable and binding.
-
In
particular, the importance of the guardian (wali), witnesses
(shuhood) and the dowry (mahr).
-
General
concepts concerning conditions or stipulations in any type of contract
and the ruling regarding adding such stipulations into a marriage
contract in particular.
-
The
ramifications and effect on the contract when certain conditions
are not properly met.
Introduction
Marriage
in Islam is a contract. Thus, as in any contract in Islam, there
are elements which are considered essential to its existence, called
arkaan, the possibility of stipulations of different kinds,
legal effects of the contract, etc. Each of these should
be understood properly in order to ensure that the marriage has been
performed in the proper manner and the rightful effects of the marriage
are granted to each of the participating partners.
Definition
of Rukn and Shart
Rukn
(plural: arkaan) can be translated as "pillar" and
is an essential part of the legal reality of something. Without
it, that legal reality does not exist.
Shart
(plural: shuroot) can be translated as "prerequisite"
or "condition" is a requirement for the legal reality/validity
of something but 1) is external to it and/or 2) does not completely
void the legal reality if not found.
Az-Zuhaili
writes:
"According
to the Hanafis, a rukn is something upon which the existence
of something else is dependent, however it is also part of that thing
which is dependent on it. A shart for them is a prerequisite
upon which the existence of something else depends but it does not form
a part of that other thing.
For the majority (of the scholars), a rukn is the thing upon
which something and its existence rests, it cannot be in reality without
it or it is something which is a must. Their famous expression
is "It is a thing by which the shari'a reality of a thing
will not exist except with it." That is the case regardless
of whether it be an actual part of the thing or something separate from
it. A shart for them is something upon which another
thing is dependent but which does not form part of it." (Wahbah
Az-Zuhaili, Al-Fiqh Al-Islami wa Adillatuhu (Berut: Dar Al-Fikr,
1985) vol. 7 p. 36)
The
following example will demonstrate the different between the Hanafi
approach and that of the rest of the schools of thought. The actual
existence of the girl that is to be wed is something external to the
process of the marriage contract. Therefore, since it is external,
the Hanafis would not call it a rukn although, obviously, no
marriage would actually take place without her existence. This
makes it a shart in their terminology. In the other schools
of thought, the fact that no marriage can occur without the existence
of the girl getting married is sufficient to call her existence a rukn
of the marriage contract even though her existence is external to the
actual contract process itself.
The
Arkaan of a Marriage Contract
All
the scholars agree that "offer and acceptance" (Al-Ijaab
wa al-qubool) is among the arkaan of a marriage.
There is a difference of opinion concerning the other arkaan
as discussed below:
The
Arkaan of a Marriage According to the Hanafis
Offer
and acceptance are the only arkaan of the marriage contract
in Hanafi fiqh due to their definition of rukn as explained
above. Furthermore, in Hanafi fiqh, the offer/acceptance can
begin from either party.
The
Arkaan of a Marriage According to the Jamhoor (Majority
of Scholars)
1.
Offer and acceptance are among the arkaan. For
most of these scholars, the offer must be from the woman's side and
the acceptance from the man.
2.
The two parties to the contract: the prospective husband and
the guardian of the woman.
Some
also count the following among the arkaan, although the majority
of these scholars count them among the shuroot:
The
Wording of the Contract
There
are a variety of opinions as to exactly which phrases are valid in the
transaction of the marriage contract. Of all these opinions, it
seems clear that the best of them is that any wording that makes the
intent of the contract clear to all involved should be considered a
valid marriage, while the best format would be that actually used by
the Prophet (sas) and his companions. Also, it is considered best
if the contract is executed in spoken form. However, due to need
or necessity, it may be done through writing or signing.
Among
the different possible phraseology, the very clear terms such as "I
marry you" as accepted by all. Anything which indicates a
temporary nature of the contract is forbidden. In others there
is some difference of opinion such as "I present to you",
"I give to you", "I sell to you", etc.
The
Hanafi and Maliki Approach
This
opinion says that any term which is clear by itself or by the context
and in this way implies marriage would be considered valid if the witnesses
and the parties understand it as such. This supported by the following
segment of along verse in which Allah mentions all of the categories
of women which are halal for the Prophet (sas):
{...Wa
imra'atan in wahabat nafsahaa lin Nabiy in araada an-nabiy an yastankihahaa
khaalistan laka min duni al-mu'mineen...}
{...and a woman who gives herself to the Prophet if the
Prophet wishes to marry her - exclusively for you and not the [rest
of the] believers...} Al-Ahzaab:50
It
is also reported that the Prophet (sas) himself used the following expression
in performing a marriage:
"Qad
mallaktukahaa bima ma'aka min al-qur'an."
"I have put her in your possession for the Qur'an which
you possess." Al-Bukhari
The
Hanbali and Shafi'iy Approach
This
opinion says that the marriage is not proper unless it uses forms of
the following words which are found in the Qur'an and hadith:
nikah or zawaaj. Their response to the above
evdience is that since the verse clearly applied to something given
specifically to the Prophet (sas) it is not applicable here and that
the actual words of the hadith are from the narrator who may not have
transmitted it exactly. Bottom line: Marriage is a contract
and, like any other contract if the intention and goal of the contract
is clear to all parties, there need not be any additional restrictions
on the actual words used. On the other hand, due to the seriousness
of this contract, there is no hardship in sticking to the original words
used most commonly by the Prophet (sas) and his companions.
Does
it Have to be in Arabic?
According
to the majority of the scholars, it is not necessary for the marriage
contract to be transacted in Arabic, even for those who have the ability
to speak Arabic. Those in the Hanbali school who required the
use of forms of the words nikah or zawaaj also required
that the contract be transacted in Arabic for this reason.
The
Different Types of Shuroot (Conditions or Prerequisites)
At
this point, we need to learn the definition of some general terms in
Islamic fiqh which come up in many subject areas, including
the one at hand.
Sahih
(Sound). A
contract which fulfills all of the arkaan and the shuroot
and has full effect in the law.
Baatil
(Void). A
contract that has failed to fulfill specific arkaan or vital
shuroot. A contract which is baatil is the opposite
of one which is sahih and has no legal effect at all.
If a marriage contract is found to be void, even if it is only discovered
after consummation, the legal condition will be as if it never happened
at all. The lineage of the father will not be established and
there is no waiting period ('iddah) upon the woman. An
example of this would be if a man married a woman who was married to
someone else at the time.
Faasid
(Defective).
This is a contract which fails to
fulfill some of the shuroot, but not the arkaan.
For non-Hanafis, faasid and baatil have the same meaning.
In Hanafi fiqh, a marriage which was faasid has some legal
ramifications, especially if it was consummated.
With
respect to marriage, there are four different kinds of conditions which
must be met:
-
Conditions
Required for Initiating the Contract (shuroot
al-in'iqaad).
These are the conditions that must be present with respect
to the arkaan or fundamentals of the marriage contract.
-
Conditions
Required for the Soundness of the Contract (shuroot
as-sihha). These
are conditions which must be fulfilled in order for the marriage
to have its proper legal effect. If these conditions are
not met, the contract is "defective" (faasid),
according to Hanafi fiqh, "void" (baatil)
according to the others.
-
Conditions
Required for the Execution of the Contract (shuroot
an-nifaadh).
These are conditions which
must be met for the marriage to have actual practical effect.
If these conditions are not met, then the marriage is "suspended"
(mauqoof) according to Hanafi and Maliki fiqh.
For example, a minor girl until she reaches puberty.
-
Conditions
Required for Making the Marriage Binding (shuroot
al-luzoom).
If these conditions are not
met, then the marriage is non-binding meaning that either of the
two parties or others may have the right to anull the marriage.
If they accept the marriage with such shortcomings, it
becomes binding.
First:
Shuroot Required for Initiating the Contract
In
this category, there are conditions concerning the two who are getting
married as well as the form in which the contract takes place.
Concerning
the Two Getting Married
The
two people must meet the qualification of legal competence, i.e, they
must be adult and sane. If they are not, the marriage will be
invalid.
Secondly,
the woman cannot be from those categories of women that are forbidden
for a man to marry. For example, suppose a man married a woman
and later discovered that they had been breastfed by the same woman.
In this case, it is as if the marriage never took place because those
two were not qualified or allowed to marry each other and the marriage
becomes null and void.
Concerning
the Contract
There
is near complete agreement on the following conditions relating to the
transaction of the marriage contract:
-
The
offer and acceptance must be done in one sitting. In general,
this means that the response must be immediate. Exactly
what is considered a "sitting" depends on custom and
related factors.
-
The
acceptance must correspond to what is being offered. If
the guardian says: "I marry you to Khadijah",
a response of "I accept Fatimah as my wife" would not
constitute a valid contract. An exception to this is if
the wali mentions a specific dowry amount and the groom
responds with a higher amount. It is regarded that there
is no reason for dispute since it is assumed that a higher dowry
will be acceptable.
-
The
wali cannot rescind the offer. Unlike transactions
of selling, neither party can say "I have changed my mind"
once they have uttered the offer/acceptance. It is immediately
binding. In a sale, they both continue to have the option
to change their mind until the "sitting" is over and
they part.
-
The
marriage must be effective immediately. If the wali
says "I will marry her to you after one month", there
is not marriage and the two remain unmarried.
Note
that the custom of saying "I accept" three times common in
some Muslim cultures has no legal significance. Once the first
"I accept" has been uttered, everything after that is meaningless
- whether positive or negative.
Adding
Stipulations to the Marriage Contract
This
is where one party states a stipulation binding on the other party for
specific reasons or goals. The offer/acceptance are tied to this
stipulation by mention. There is a difference of opinion among
the scholars concerning the validity of conditions of this nature.
Conditions
of contracts are two types: 1) those imposed directly by the shari'a
and 2) those drawn up by one or more of the parties. When any
contract is entered into, the first type of conditions are covered automatically
even if they are not stated in the contract.
Understood
Conditions Based on what is Customary
It
is a general principle in fiqh that customs can take the status
of law. It becomes understood that people are going to behave
in a certain fashion. Since that is understood, one party has
the right to ask it of the other even if it is not stated in the contract.
In the area of marriage, there are some stipulations that are known
by custom. These do not have to be mentioned in the contract to
be considered binding. However, there are some strict conditions
that must be met before a customary act is considered something equivalent
to a legal stipulation. These conditions are as follows:
-
The
customary practice cannot contravene or contradict anything expressly
laid down by the shari'a. For example, it is custom
in some parts of the world for the woman to pay dowry to the man.
In other parts, it is customary to prepare two or three times
amount of food that the guests could possibly eat at the walima
(wedding feast). Neither party has the right to demand of
the other the fulfillment of such customs.
-
The
customary act must be common, well-known and universal and not
something practiced only by some portions of the population.
-
The
custom must have been in existence and known before the marriage
contract took place.
Other
conditions Laid Down by the Two Parties
Any
condition which contradicts, compromises or nullifies the main goals
and purposes of the marriage contract itself are rejected and, even
if stated, are of no legal consequence. For example conditions
which state that the woman receives no dowry or that he does not have
to support her or that they will not consummate the marriage are all
null and void and of no effect whatsoever.
Such
conditions must be stipulated and agreed upon at or before the time
of the offer/acceptance. Even those scholars who accept such stipulations
do not accept them if they are made after the offer/acceptance.
Sound
and Acceptable Stipulations
There
are two types of sound and acceptable stipulations:
-
Those
embodied in the contract even if they are not stated. This includes
conditions known from the shari'a as well as those known
from custom as discussed previously. The Prophet (sas) said:
"Ahaqqu maa aufaitum min ash-shurooti maa istahlaltum
bihi al-furooj."
"The conditions which you have the most duty
to fulfill are those by which you have made marital relations
lawful." Bukhari & Muslim
Many scholars understand this hadith to be referring to these
kinds of conditions only, that is, those that are covered by the
shari'a in the first place. This is the view of
the shafi'i school. They do no allow any additional
stipulations to be added to the marriage contract.
-
Those
conditions not covered by the essential nature of the contract
but which are agreed upon by the contracting parties. These
are those stipulations that do not contradict the general goals
of the contract, do not bring harm to anyone and which apply to
things which are permissible and within the right of the person
to agree - that is something that does not go against the shari'a.
They are laid out in the beginning to avoid any conflict or hardship
in the future.
In
General, Muslims Must Fulfill Their Agreements
Generally
speaking, Muslims must comply with any agreements that they make.
Allah said about the believers:
{...Wa
al-moofoona fi 'ahdihim idhaa 'aahadoo...}
{...And those who fulfill their pacts when they make one...}
Al-Baqara:177
{Yaa
ayyuhaa alladhina aamanoo aufoo bi al-'uqood...}
{O you who believe fulfill your contracts...} Al-Ma'idah:1
The
Prophet (sas) said:
"Al-muslimoona
'alaa shurootihim."
"Muslims are bound by their stipulations."
Abu Daud & Al-Hakim (sahih)
During
the time of Umar ibn Al-Khattab, a man married a woman upon the condition
that he would not move her from his house. The time came when
he wanted to move her. They took their dispute to Umar and he
said: "She has the right to her stipulation."
The man said, "In that case, they will certainly end the marriage."
He said, "The rights are broken off due to the stipulations."
This was the view of many of the Companions, Followers and scholars
including Saad ibn Abi Waqqas, Mu'awiyah, Amr ibn Al-Aas, Shuraih, Umar
ibn Abdul Aziz, Tawoos, Al-Awzaa'i and Ishaq.
There
is another opinion which says that external stipulations - those not
covered by the nature of the contract itself - carry no weight and need
not be met. This was the opinion of Abu Hanifa, Ash-Shafi'i, Malik,
Az-Zuhri, Qatada, Al-Laith, Ath-Thauri, Ibn Al-Mundhir and has been
narrated from Ali.
The
Proofs of Those Who Say that Such Stipulations are Neither Binding nor
Valid
"Kullu
shartin laisa fiy kitaabi Allahi fahuwa baatil wa in kaana mi'atu shartin."
"Every stipultion which is not in the book of Allah
is void even if it be one hundred stipulations." Muslim
& Bukhari
They
also cite the following extension to the hadith mentioned earlier about
stipulations:
"Al-Muslimoon
'alaa shurootihim illa shartin ahalla haraaman au harrama halaalan."
"Muslims are bound by their stipulations except for
a stipulation which makes the unlawful lawful or makes the lawful unlawful."
However,
this version of the hadith with the added sentence is weak and cannot
be used as evidence. As for the hadith mentioned earlier that
"The conditions which you have the most duty to fulfill
are those by which you have made marital relations lawful.",
they claim that this only applies to the conditions which are essential
parts of the nature of the contract itself.
Response
to Those Arguments
The
scholars who permit such stipulations in the marriage contract have
responded to the above. As for the hadith "Every
stipulations which is not in the book of Allah...", they
say that for a woman's wali to make some conditions to her
advantage is something permissible and does not go against the Book
of Allah.
Actually,
such conditions do not violate the Book of Allah and do not make anything
forbidden permissible, etc. They simply give the woman the right
to annul the marriage if the condition is not satisfied.
Also,
there remains no real meaning to the hadith "The conditions
which you have the most duty to fulfill..." if one says
that it only applies to conditions that are already in force due to
the nature of the contract anyway.
The
Crux of this Difference of Opinion
This
discussion boils down to the understanding of two seemingly contradictory
hadith:
"Every
stipulation which is not in the book of Allah is void even if it be
one hundred stipulations." Muslim & Bukhari
"The
conditions which you have the most duty to fulfill are those by which
you have made marital relations lawful." Bukhari
& Muslim
It
seems clear from the second hadith along with the fatwa of Umar mentioned
earlier that there is some room for adding stipulations to a marriage
contract. It also seems clear from the first hadith that there
are limits on what can be stipulated. Specifically, any stipulations
which go against the basic goals and principles of the marriage contract
and not allowed and, if stated, are null and void. Thus, the only
remaining problem is understanding exactly how this principle applies
in practical situations.
For
those scholars who don't accept such external stipulations at all, they
have no effect, are not binding, and don't affect the validity of the
underlying contract. For those who accept them, they give the
woman the option to annul the marriage upon he request if the condition
is violated. We only mention the woman because the man can divorce
at any time with or without a particular cause and so has no need of
such an option. Notice that even in the fatwa of Umar, he didn't
require the man to fulfill the condition, rather he allowed that she
could end the marriage if she so demanded.
Conditions
for Which there is Agreement that they are Invalid
Even
those who accept these stipulations all agree that certain conditions
are not allowed. Among them are the following:
-
Nikaah
Ash-Shighaar. This is where
the two dowries are stolen and "exchanged". For
example a man marries his son to another's daughter in "exchange"
for the other marrying his daughter to the first one's son.
Neither woman receives their dowry.
-
Nikaah
Al-Mut'a. Any kind of marriage
with a stipulated time limit.
-
Nikaah
At-Tahleel. A woman who has
been divorced three times and wishes to return to her first husband
marries a man on the condition that he divorce her. If
this is discovered or if this is her intention, the first husband
still does not become lawful for her in spite of this marriage.
Second:
Conditions for the Soundness of a Marriage Contract
There
are ten conditions (shuroot) in this category. Some are
agreed upon by virtually all the scholars while others are the subject
of some disagreement.
-
The
woman is permissible to the man.
i.e., that she is not one of those
forbidden to him by relation, nursing or other existing and conflicting
marriage. Some would consider this on of the arkaan
(pillars) or one of the conditions for initiating the contract.
In any case, this condition must definitely be met.
-
The
offer and acceptance is of a permanent nature and not temporary.
All forms of temporary marriage
are forbidden in Islam. If anything stated in the offer
and acceptance indicates a temporary nature, the marriage is not
valid.
-
Two
non-discredited witnesses.
There is some difference of opinion
on this issue, but in the final analysis, the hadith is clear.
Ibn Taimia mentioned four existing opinions on this issue:
(1) The marriage must be announced and made public, regardless
of whether the contract was actually witnessed or not. This
was the opinion of Malik as well as the scholars of hadith, the
Dhaahiris and one opinion reported from Ahamd.
(2) It is obligatory to have witnesses, regardless of whether
the marriage contract is made public or not. This was the
view of Abu Hanifah, Ash-Shafi'iy and another opinion reported
from Ahmad.
(3) Both witnesses and a public announcement are necessary.
This is a third narration from Ahmad.
(4) Either one of the two is necessary. This is a fourth
narration from Ahmad.
Ibn Taimia himself felt that the second opinion (only witnesses
required) is weak. He claimed that there was no authentic
source for same and that it was not widely known among the Muslims.
Instead, what is required is the public pronouncement letting
the people know that the parties got married. He says that
if a marriage takes place without witnesses or public announcement
it is definitely invalid, if it takes place with witnesses but
no announcement it is questionable and if it takes place with
both it is definitely valid.
The portion of Ibn Taimia's opinion which finds the witnesses
NOT a requirement must be rejected, because the hadith on this
subject has been found to be sahih:
"Laa nikaaha illa bi waliyin wa shaahidaiy 'adlin"
"No marriage except with a guardian and two non-discredited
witnesses."
So the bottom line here is that BOTH the witnesses AND the public
announcement are required. In fact, regarding public announcement,
the Maliki school says that if the other parties ask the witnesses
to keep it silent that the marriage is not valid and the two are
to be separated - PERMANENTLY! The Hanbali school holds
that such a marriage is not invalid although it is disliked to
do so. The witnesses must be two adult and sane Muslim men
whose testimony has not been previously discredited.
|
-
Both
parties to the contract and the bride have willingly accepted
the marriage.
The Hanafis say that this is not
a condition, but their position is unacceptable and rejected because
of ample evidence from the Qur'an and the Sunnah to the contrary.
In the jahiliya, Arabs used to "inherit"
(i.e., forcibly marry) their brothers wives if they died.
Allah forbid this saying:
{Yaa ayyuhaa alladhina aamanoo,
laa yahillu lakum an tarithoo an-nisaa'a karhan...}
{O, you who believe, it
is not lawful for you to inherit women against their will...}
An-Nisaa:19
There are also two sound and very
clear hadith on this matter:
"Laa tunkahu al-ayyimu hatta tusta'mara wa laa tunkahu
al-bikru hatta tusta'dhana qaaloo yaa rasoolu Allahi kaifa idhinihaa?
Qaala: an taskut."
"A previously married woman cannot be
married until her order is sought and a virgin cannot be married
until her premission is sought. They said: How does
she give permission? He (sas) said: If she keeps quiet."
Bukhari & Muslim
"'An ibn Abbasin anna jaariyatan bikran atat an-nabiyya
(sas) fa dhakarat lahu anna abaaha zawwajahaa wa hiya kaariyatun
fa khayyarahaa an-nabiyyu (sas)"
"From Ibn Abbas that a virgin girl came to the
Prophet (sas) and mentioned that her father had married her against
her will and so the Prophet (sas) gave her the choice."
Abu Daud & others (sahih)
Many early scholars allowed this in only one case:
a father or grandfather marrying a girl below the age of puberty
without her consent. According to them, she has no right
to refuse the marriage upon becoming mature. This position
is clearly unacceptable and rejected based on the above verse
and ahadith.
-
The
bride and groom are specifically identified and known.
-
Neither
of the two contracting parties are in a state of ihraam.
-
The
marriage must be with a dowry (mahr).
It does not have to be exactly specified
nor does it have to change hands, but it has to be there.
More is coming on this subject later.
-
The
parties and witnesses are not bound to keep it quiet.
It is not allowed to make attempts
to keep a marriage a secret. The universal custom of the
Arabs before Islam was to have marriages very publicly where all
around became aware of its existence. Islam confirmed this
practice and it is the only acceptable way of marrying.
As we have seen, the Maliki school takes this so seriously that
they separate the two parties permanently. Some other scholars
said that it was a wrong practice, but didn't necessarily invalidate
the marriage.
-
No
party is on his/her deathbed.
The "parties" intended
here are the bride and the groom. This is because of possible
injury to the heirs because of another person becoming entitled
to inheritance.
-
The
presence of the guardian or representative (wali)
of the woman.
The wali is a Muslim man
charged with marrying the one under his charge to a man who will
be good for her. There is no disagreement that the first
wali is her natural father if he is Muslim and that the
last in line is the ruler. Between those two, there is
some disagreement about the order but agreement that they come
from the girl's fathers relatives - no one from her mother's side
enters into the picture. The order, according to many is:
father, paternal grandfather, son, grandson, full brother, paternal
half-brother, paternal uncle. The wali is an absolute
requirement for a marriage, and any marriage done without him
is null and void according to the following hadith:
"Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu
man laa waliyya lahaa."
"No marriage except with a guardian and the ruler
is the guardian of she who has no guardian." Abu
Daud & others (sahih)
"Ayyumaa imra'atin nakahat bi ghairi idhni waliyyihaa
fa nikaahuhaa baatilun fa nikaahuhaa baatilun fa nikaahuhaa baatilun."
"If any woman marries without the permission
of her guardian, then her marriage is void, then her marriage
is void, then her marriage is void." Abu
Daud & others (sahih)
It is the job of the wali to marry her to the best
possible husband. He must not be guided by his desires
nor by her desires. If the person is acceptable in both
his religion and his character and appropriate to her in some
other way discussed by the scholars, then he must facilitate the
marriage and not refuse it for his own desires or biases.
If the conditions are not right, then he must refuse the marriage,
even if both the woman under his charge and the man desire it.
This is a grave trust and he must do his best to fulfill it properly
and not bring harm to the woman and/or to society. Allah
said:
{Yaa ayyuhaa alladhina aamanoo laa
takhunoo Allaha wa ar-rasoola wa takhunoo amaanaatikum wa antum
ta'lamoon.}
{O, you who believe, do
not commit treachery against Allah and against the Prophet (sas)
nor betray your trusts though you know.} Al-Anfaal:27
What about the case where the wali
refuses someone on a non-Islamic basis? As was stated earlier,
it is the job of the wali to act in the best interest
of the woman according to the standards established by Islam.
If a qualified person asks to marry the woman and he turns him
down, then he is not doing his job. In such a case, the
woman can complain to the judge or ruler and have her wali
"fired" (removed). The scholars then differ as
to who becomes her new wali, the next male relative in
line or the ruler.
The wali must be the same religion as the woman.
A non-Muslim father cannot be the wali for his Muslim
daughter.
A
Rejected Opinion of the Hanafi School
In
the Hanafi school of thought there is an opinion that the wali
is not a requirement for the validity of the marriage. They even
claim to have an argument from Aisha, the one who narrated the hadith:
"Laa
nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa."
"No marriage except with a guardian and the ruler is
the guardian of she who has no guardian." Abu
Daud & others (sahih)
They
say that: "Aisha married the daughter of her brother, Hafsa
bint Abdul Rahman while Abdul Rahman was gone to Sham. When Abdul
Rahman returned he was upset but he did not wish to undo what Aisha
had done do he left his daughter with her groom, Al-Mundhir ibn Az-Zuhair."
Other
scholars responded to their argument: It seem from other narrations
of the same incident that Aisha simply set up the arrangement but did
not actually perform the marriage. Also, it was Aisha herself
who said that "Women cannot perform marriages." In this
way, she did not contradict what she herself narrated from the Prophet
(sas).
Being
Serious is NOT a Condition for the Soundness of a Marriage Contract
Note
that marriage is not a laughing matter and is very serious. Therefore,
the mere words make the marriage happen and intention is not required.
Also, as we have seen, there is no khiyaar al-majlis (a choice
to back out until the sitting is concluded and the parties part ways)
in marriage as there is in sales and other contracts. The Prophet
(sas) said:
"Thalaathun
jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu wa
ar-ruj'atu."
"Three things which when serious are serious and when
vain are serious: marriage, divorce and returning (to one's wife
after a divorce)." Ahmad & others (sahih).
Third:
Conditions for the Execution of a Marriage Contract
-
The
bride and groom must be legally capable for such a marriage, i.e.,
sane, conscious, past the age of puberty, etc. The contract
can take place earlier than this, but the execution must wait
until the time that they can actually enter into the marriage
relationship.
-
The
wali who performed the marriage was not a more distant
wali while a closer one was alive and reachable.
For example, if the woman's uncle married her to someone, the
marriage would not be valid unless and until the woman's father's
consent was verified. In such a case, the contract could
be executed.
Fourth:
Conditions for the Marriage Contract to be Binding
If
these conditions are met, neither party has the right to anull the marriage.
-
If
the marriage of an underage or insane person is done by other
than the father or the grandfather, then the father or grandfather
has the right to annul it.
-
That
the husband is socially compatible and qualified for the woman.
-
That
the dowry is at least equivalent to those similar to her.
-
That
there is no defect in either spouse. Included in this category
would be the case where the woman was said to be a virgin but
is then discovered to be otherwise or where either spouse is not
physically capable of marital relations.
If,
after being married, any of these conditions are not met, both parties
(bride and groom) would have the right to annul the marriage.
The matter would be taken to a judge or one in authority. However,
this is a right or an option. Once the parties accept the marriage
with the deficiency it contains, they will after that be bound to such
a marriage.
Effects
of the Various Conditions on the Marriage Contract
Based
on which conditions above are or are not fulfilled, the ruling concerning
the validity and legal effect of the marriage contract differs among
different schools of fiqh. In the hanafi school,
a contract may fall into one of five categories: sound and binding,
sound and non-binding, suspended, defective and void. For most
of the other scholars, the marriage contract will fall into one of three
categories: sound and binding, sound and non-binding or void.
The
following table describes the effect of failure to meet certain conditions
on the legal effect or conclusion concerning the contract itself:
Effects
on the Marriage Contract of Failing to Meet Conditions
|
Contract
fails to meet the arkaan (pillars)
|
Contract
fails to meet the conditions for its Initiation
|
Contract
fails to meet the conditions for its Soundness
|
Contract
fails to meet the conditions for its Execution
|
Contract
fails to meet binding conditions.
|
Contract
meets all necessary conditions
|
|
|
|
|
|
|
The
contract is null and void. This is actually a moot point since
in reality there WAS no contract if essential components are
missing.
|
The
contract is completely void.
|
Hanafi
school: the contract is "defective" and hence has
some legal effect. |
In
Hanafi and Maliki fiqh, such a contract is considered "suspended"
or on hold until such conditions are met.
|
The
contract is sound but non-binding. The affected party
has the right to annul the contract.
|
Contract
is sound and binding.
|
Others:
The contract is null and void. |
Civil
Marriages in Countries Which Do Not Apply the Shari'a
In
the light of what has been discussed, a very important question arises
for Muslims living in lands where the Shari'a is not the law
of the land. For Muslims to marry in such situations under the
"auspices" of such governments will often involve serious
flaws in both the execution and the legal effects of the non-Islamic
marriage contract. For example:
-
No
proper wali. Many such secular laws may not require
the woman to have a wali at all or the one appointed
may not be the rightful one in the Shari'a.
-
The
secular law may not require two witnesses,
-
Witnesses
may be required but not qualified such as non-Muslim witnesses.
-
The
marriage establishes various property rights, inheritance rights
etc. both during and after the marriage for which Allah sent no
authority. (Avoiding the harm of such issues while living
in a non-Islamic society is a much larger issue and involves many
things besides marriage.)
-
The
civil marriage may cause additional marriages by the husband to
be a crime punishable by a prison sentence.
Because
of these and other issues, a secular marriage contract is not sufficient
for two Muslims to be considered married Islamically. In fact,
they should be avoided if possible. In any case, it is the Islamic
marriage with its prerequisites and conditions which makes the two married
before Allah. Whether or not a civil marriage should also be undertaken
is a case of weighing the harms and benefits involved.
Regarding
these "marriages", the following important points should be
noted:
-
If
such a marriage was entered into by non-Muslims who later became
Muslim, they are considered married and there is not need whatsoever
to have another marriage contract.
-
If
they were Muslim but married in a secular manner out of extreme
ignorance, it would be best for them to redo the marriage.
However, the first marriage could be considered valid and any
children resulting from it would be both of their children Islamically.
-
If
two Muslims marry in such a manner knowingly, for example to circumvent
the objections of her wali, then the marriage is null
and void and they are committing fornication.
Review
Questions
-
What
would be the ruling for the following case: A man and a
woman are married for ten years and then discover that they were
breastfed by the same woman.
-
What
is the ruling concerning a marriage contract in which the woman
did not have a wali? What was the Prophet's (sas)
statement about such a marriage (2 hadith).
-
Discuss
the different opinions concerning whether or not it is allowed
to add stipulations to the marriage contract. For those
who allow them, what exactly is their effect and which conditions
are allowed? Which are not allowed?
-
Give
definitions for the following important fiqh terms:
rukn, shart, sahih, faasid and baatil.
-
Is
it necessary to have witnesses for a marriage contract?
What are some of the different opinions on this matter and what
is the conclusive evidence from the sunnah?
-
What
be the ruling on the following case: A man claims that the
marriage contract he just made is not valid because he was only
joking when he did it?
Back to Content
|