WUNRN
An Islamic marriage contract is a formal, binding contract drawn up
by parties involved in marriage proceedings.
In Sunni Islam, a marriage contract must have two male witnesses, or, in the Hanafi school of jurisprudence, one man and two women.[citation needed] 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."[1]
In Shia Islam,
witnesses to a marriage are deemed unnecessary.[2] Shia belief is that while the Qur'an requires
two witnesses for Talaq,
it makes no mention of similar requirements for marriage.[citation needed] 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.[citation needed]
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.[citation needed]
Among the stipulations that can be included in the contract is a prohibition on the husband marrying other women[3] (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.[4] The contract may also be used to regulate the couple's physical relationship, if needed.[citation 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.
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:[5]
Al-Mughni (by Ibn Qudaamah), Kitab al Nikah:[6]
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.
================================================================
To contact the list administrator, or to leave the list, send an email to:
wunrn_listserve-request@lists.wunrn.com. Thank you.