The Marriage Contract
of this Chapter
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.
of Rukn and Shart
(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.
(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.
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.
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.
Arkaan of a Marriage Contract
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:
Arkaan of a Marriage According to the Hanafis
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.
Arkaan of a Marriage According to the Jamhoor (Majority
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.
The two parties to the contract: the prospective husband and
the guardian of the woman.
also count the following among the arkaan, although the majority
of these scholars count them among the shuroot:
Wording of the Contract
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.
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.
Hanafi and Maliki Approach
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):
imra'atan in wahabat nafsahaa lin Nabiy in araada an-nabiy an yastankihahaa
khaalistan laka min duni al-mu'mineen...}
is also reported that the Prophet (sas) himself used the following expression
in performing a marriage:
mallaktukahaa bima ma'aka min al-qur'an."
Hanbali and Shafi'iy Approach
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.
it Have to be in Arabic?
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.
Different Types of Shuroot (Conditions or Prerequisites)
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.
contract which fulfills all of the arkaan and the shuroot
and has full effect in the law.
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.
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.
respect to marriage, there are four different kinds of conditions which
must be met:
Shuroot Required for Initiating the Contract
this category, there are conditions concerning the two who are getting
married as well as the form in which the contract takes place.
the Two Getting Married
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
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.
is near complete agreement on the following conditions relating to the
transaction of the marriage contract:
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.
Stipulations to the Marriage Contract
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.
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.
Conditions Based on what is Customary
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:
conditions Laid Down by the Two Parties
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.
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.
and Acceptable Stipulations
are two types of sound and acceptable stipulations:
General, Muslims Must Fulfill Their Agreements
speaking, Muslims must comply with any agreements that they make.
Allah said about the believers:
al-moofoona fi 'ahdihim idhaa 'aahadoo...}
ayyuhaa alladhina aamanoo aufoo bi al-'uqood...}
Prophet (sas) said:
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.
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.
Proofs of Those Who Say that Such Stipulations are Neither Binding nor
shartin laisa fiy kitaabi Allahi fahuwa baatil wa in kaana mi'atu shartin."
also cite the following extension to the hadith mentioned earlier about
'alaa shurootihim illa shartin ahalla haraaman au harrama halaalan."
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.
to Those Arguments
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
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.
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.
Crux of this Difference of Opinion
discussion boils down to the understanding of two seemingly contradictory
stipulation which is not in the book of Allah is void even if it be
one hundred stipulations." Muslim & Bukhari
conditions which you have the most duty to fulfill are those by which
you have made marital relations lawful." Bukhari
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.
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.
for Which there is Agreement that they are Invalid
those who accept these stipulations all agree that certain conditions
are not allowed. Among them are the following:
Conditions for the Soundness of a Marriage Contract
are ten conditions (shuroot) in this category. Some are
agreed upon by virtually all the scholars while others are the subject
of some disagreement.
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:
nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa."
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).
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:
jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu wa
Conditions for the Execution of a Marriage Contract
Conditions for the Marriage Contract to be Binding
If these conditions are met, neither party has the right to anull the marriage.
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.
of the Various Conditions on the Marriage Contract
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:
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:
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.
these "marriages", the following important points should be