So, you've popped the question and probably the last thing on your mind is the legal implication of what you've just done. The wish to get married has many implications on one's life, personally and economically. The type of matrimonial regime does not only effect your position in case of a divorce, it also has serious implications on the couple's financial and legal positions. Choosing the correct matrimonial regime is therefore important to protect, not only yourself, but also your family. Careful consideration should be given when deciding which matrimonial regime would be best suited to your lifestyle.
A Muslim marriage is a contract, not a sacrament. Though it has importance as the only religiously sanctioned way for individuals to have legitimate sexual relationships and to procreate, marriage is a civil agreement, entered into by two individuals or those acting on their behalf. And because it is a contract (‘Aqd), it conveys legal rights and obligations to each spouse. We will discuss those rights along with the crucial issue of how, and whether, they can be modified through contractual stipulations (Shurut, sing. Shart).
MAHR –THE DOWER: The husband’s first duty is to pay an agreed-upon dower (Mahr) to his wife; this property, which can range from a token sum to a substantial amount of wealth, is legally hers and she may save, spend, or invest it however she chooses.
THE CONTRACT – 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 is tied to this stipulation by mention. Most often, such stipulations are aimed at securing certain rights or privileges for the wife. The most commonly debated provisions specify that the husband will not take any additional wives or will not relocate his wife from her hometown. Among the four Sunni legal schools, the Hanbalis grant the most recognition to these stipulations, holding that if the husband violates either stipulation, the wife has the right to dissolve her marriage. (It does not mean that any additional marriage he concludes will be void, only that she can opt to leave him if he marries again; likewise, she cannot bind him to remain with her in her town, but can obtain a divorce if he insists on relocating her.) However, if her husband had delegated to her a right to divorce if the stipulation was breached or had pronounced a suspended divorce which would take effect automatically if he violated the stipulation, then the binding power of the husband’s divorce oaths serves as guarantor of the stipulation.
The inclusion of stipulations in marriage contracts is discussed by many Muslims today as the best way to protect women’s rights within marriage. In majority-Muslim societies, current legal codes determine how stipulations will be enforced. For Muslim minorities living in secular societies where Muslims are not subject to a particular interpretation of Islamic law by government decree, the legal strategy of including conditions in a marriage contract can be a useful way of making clear the spouses' expectations for the marriage and their roles within it. In general, such contracts will be only morally binding and, unless very carefully drafted, not legally enforceable under civil law, though there are organizations, working on model marriage contracts that will be enforceable.
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 as they are foster brother/sister and therefore considered brother and sister.
Concerning the Contract: There is near complete agreement on the following conditions relating to the transaction of the marriage contract:
a. The offer and acceptance must be done in one sitting. In general, this means that the response must be immediate and both (or representatives) must be physically present at the same time. Hence a telephonic/link acceptance is invalid.
b. The acceptance must correspond to what is being offered. If the guardian says: "I marry you to Khadijah", a response of "I accept Fatima (another woman) as my wife" would not constitute a valid contract. An exception to this is if the Wali (guardian) 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.
Conditions of contracts are two types:
1) Those imposed directly by the Shariah 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. To be discussed further in the next issue insh allah!
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