The Marriage Contract

The Marriage Contract




Marriage in Islam is a contract.
Thus, as in any contract in Islam, there are elements which are
considered essential to its existence, called arkan, 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: arkan) 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: shurut) 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'ah 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 Arkan of a Marriage Contract
All
the scholars agree that "offer and acceptance" (Al-Ijaab wa al-qubul)
is among the arkan of a marriage. There is a difference of opinion
concerning the other arkan as discussed below:
The Arkan of a Marriage According to the Hanafis
Offer
and acceptance are the only arkan 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 Arkan of a Marriage According to the Jamhur (Majority of Scholars)
Offer
and acceptance are among the arkan. 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.
Some also count the following among the arkan, although the majority of these scholars count them among the shurut:
The presence of witnesses.
Dowry.
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 (peace be upon him) 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 (peace be upon him):
"...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..."
[Noble Quran 33:50]
It is also reported that the Prophet (peace be upon him) himself used the following expression in performing a marriage:
"I have put her in your possession for the Quran which you possess." [Al-Bukhari]
The Hanbali and Shafi'i Approach
This
opinion says that the marriage is not proper unless it uses forms of
the following words which are found in the Quran and hadith: nikah or
zawaj. Their response to the above evidence is that since the verse
clearly applied to something given specifically to the Prophet (peace
be upon him) 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 (peace be upon him) 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 zawaj also required that the
contract be transacted in Arabic for this reason.
The Different Types of Shurut (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 arkan and the shurut and has full effect in the law.
Batil (Void).
A contract that has failed to fulfill specific arkan or vital shurut. A
contract which is Batil 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.
Fasid (Defective).
This is a contract which fails to fulfill some of the shurut, but not
the arkan. For non-Hanafis, Fasid and Batil have the same meaning. In
Hanafi fiqh, a marriage which was Fasid 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 (shurut al-in'iqad). These are the conditions that must be present with respect to the arkan or fundamentals of the marriage contract.
Conditions Required for the Soundness of the Contract (shurut 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" (Fasid), according to Hanafi fiqh, "void"
(Batil) according to the others.
Conditions Required for the Execution of the Contract (shurut an-nifadh).
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" (mauquf) according to Hanafi and Maliki fiqh. For example,
a minor girl until she reaches puberty.
Conditions Required for Making the Marriage Binding (shurut al-luzum). 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: Shurut 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'ah 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 *****alent to a legal
stipulation. These conditions are as follows:

The customary practice cannot
contravene or contradict anything expressly laid down by the shari'ah.
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'ah as well as those known from custom as discussed previously.
The Prophet (peace be upon him) said:

"Ahaqqu maa aufaitum min ash-shuruti maa istahlaltum bihi al-furuj."

"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'ah 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'ah. 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:

"...And those who fulfill their pacts when they make one..." [Noble Quran 2:177]

"O you who believe fulfill your contracts..." [Noble Quran 5:1]

The Prophet (peace be upon him) said:

"Muslims are bound by their stipulations." [Abu Dawud & Al-Hakim - Sahih]

During the time of 'Umar ibn Al-Khattab, a man married a woman upon the condition that he would not her from his house. The time came when he wanted to
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 Sa'ad ibn Abi Waqqas, Mu'awiyah, 'Amr ibn
Al-'Aas, Shuraih, 'Umar ibn 'Abdul 'Aziz, Tawus, Al-Awza'i and Is'haq.

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

"Every stipulation 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:

"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:

Nikah 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.

Nikah Al-Mut'a. Any kind of marriage with a stipulated time limit.

Nikah At-Tahlil. A woman who
has been divorced three times and wishes to return to her first husband
marries a man on the condition that he divorces 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 (shurut) 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 arkan (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 Taimiyyah 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 Dhahiris and one opinion reported from Ahamad.

(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'i 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 Taimiyyah 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:

"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 Quran 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:

"O, you who believe, it is not lawful for you to inherit women against their will..." [Noble Quran 4:19]

There are also two sound and very clear hadith on this matter:

"A previously married woman cannot
be married until her order is sought and a virgin cannot be married
until her permission is sought. They said: How does she give
permission? He (peace be upon him) said: If she keeps quiet." [Bukhari
& Muslim]

"'An ibn 'Abbasin anna jaariyatan
bikran atat an-nabiyya (peace be upon him) fa dhakarat lahu anna abaha
zawwajaha wa hiya kariyatun fa khayyaraha an-nabiyyu (peace be upon
him)"

"From Ibn 'Abbas that a virgin girl
came to the Prophet (peace be upon him) and mentioned that her father
had married her against her will and so the Prophet (peace be upon him)
gave her the choice." [Abu Dawud & 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 ihram.

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 Nikaha illa bi waliyyin wa as-sultanu waliyyu man laa waliyya lahaa."

"No marriage except with a guardian and the ruler is the guardian of she who has no guardian." [Abu Dawud & others - Sahih]

"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 Dawud & 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:

"O, you who believe, do not commit
treachery against Allah and against the Prophet (peace be upon him) nor
betray your trusts though you know." [Noble Quran 8:27]

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" (red). 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:

"No marriage except with a guardian and the ruler is the guardian of she who has no guardian." [Abu Dawud & others - Sahih]

They say that: " Ai'shah 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 so 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 (peace be upon him).

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 (peace be upon him) said:

"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 *****alent 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)
The contract is null and void. This is actually a moot point since in
reality there WAS no contract if essential components are missing.

Contract fails to meet the conditions for its Initiation
The contract is completely void.

Contract fails to meet the conditions for its Soundness
Hanafi school: the contract is "defective" and hence has some legal effect.
Others: The contract is null and void.

Contract fails to meet the conditions for its Execution
In Hanafi and Maliki fiqh, such a contract is considered "suspended" or on hold until such conditions are met.

Contract fails to meet binding conditions.
The contract is sound but non-binding. The affected party has the right to annul the contract.

Contract meets all necessary conditions
Contract is sound and binding.
Civil Marriages in Countries Which Do Not Apply the shari'ah

In the light of what has been
discussed, a very important question arises for Muslims living in lands
where the shari'ah 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'ah.

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

1. 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.
2. What is the ruling concerning a marriage contract in which the woman
did not have a wali? What was the Prophet's statement about such a
marriage (2 hadith).
3. 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?
4. Give definitions for the following important fiqh terms: rukn, shart, sahih, fasid and batil.
5. 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?
6. What be the ruling on the following case: A man claims that the marriage

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