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:

• No proper Wali (Gaurdian). 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'a.
• 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. (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 no 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.

THE ACCRUAL SYSTEM

 

Sharing the profits of a marriage: The accrual system came into operation with the introduction of the Matrimonial Property Act, 1984. Prior to the changes brought about by the Act, there were effectively two types of marriage:

1. In community of property, which meant that money and possessions belonging to either of the spouses at the time of the marriage, or acquired by them afterwards, became part of a joint estate supervised by the husband in which each spouse had an equal, undivided share; or

2. By antenuptial contract, in which each spouse usually retained his or her separate property and had complete freedom to deal with that property as he or she chose. If one partner was declared insolvent, the other's property was protected from the insolvent spouse's creditors.

However, since the implementation of the Matrimonial Property Act, 1984, couples marrying by antenuptial contract that excludes community of property will automatically be married under the accrual system unless they insert a clause in the contract expressly excluding it, in which case their property rights will be as before.

Hence, the Islamically-correct marriage-contract would be the “ANTENEPTUAL CONTRACT WITHOUT THE ACCRUAL SYSTEM.”