antenuptial marriage contract

Islamic marriage contract

An Islamic marriage contract is a formal, binding contract drawn up by parties involved in marriage proceedings.

Witnessing

In Sunni Islam, a marriage contract must have two male witnesses, or, in the Hanafi school of jurisprudence, one man and two women. Proper witnessing is critical to the validation of the marriage, also acting as a protection against suspicions of adulterous relationships. The importance of this is demonstrated in a narration in which a case was brought to Umar concerning a marriage which had been witnessed by only one man and one woman; he responded: "This is a secret marriage and I do not permit it. Had I been the first to come upon it, I would have ordered them to be stoned."

In Shia Islam, witnesses to a marriage are deemed unnecessary. Shia belief is that while the Qur'an requires two witnesses for Talaq, it makes no mention of similar requirements for marriage. It is also believed that, as Nikah Mut'ah (a type of contract which had further relaxed requirements) was prohibited in Sunni Islam, the necessity of witnessing was introduced by Sunni caliphs, specifically Umar, to ensure that no couples engaged in it.

Type and content

While it is customary for marriage contracts to be written down, particularly when the bride and groom wish to make any stipulations, classical jurists required only oral offer and acceptance for the contract's validity.

Among the stipulations that can be included in the contract is a prohibition on the husband marrying other women (a wife has the right to annul the marriage if her husband violates this condition), or other rules that can include giving up, or demanding, certain responsibilities. The contract may also be used to regulate the couple's physical relationship, if needed.

The marriage contract can also specify where the couple will live, whether or not the first wife will allow the husband to take a second wife without her consent, whether or not the wife has the right to initiate divorce, and other such matters. The marriage contract somewhat resembles the marriage settlements once negotiated for upper-class Western brides, but can extend to non-financial matters usually ignored by marriage settlements or pre-nuptial agreements.

Purposes

One important purpose of the contract is that which makes sexual intercourse legal. This is supported by various Hadiths and quotations:

Sahih Bukhari, Book 62, #81:

  • Narrated 'Uqba: The Prophet said: "The stipulations [in the marriage contract] most entitled to be abided by are those with which you are given the right to enjoy the (women's) private parts."

Al-Mughni (by Ibn Qudaamah), Kitab al Nikah:

  • ... the Prophet [said]: "The most deserving of conditions to be fulfilled are those by means of which sexual intercourse becomes permissible for you."

In practice

In practice, most Islamic marriages are contracted without a written contract, or using a "fill in the blanks" form supplied by the officiant (usually a scholar that holds the marriage ceremony). In such cases, Islamic law, influenced by custom and/or rulings by local courts based on local law, governs the treatment of a divorcee or widow, and is often, in the opinion of Islamic feminists, unfair or unkind. Islamic feminists have been active in informing Muslim women of their rights under Islamic law and encouraging them to negotiate favorable contracts before marriage.

See also

References

External links

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