Guardianship should have as its objective protection of the material interests of the woman and protection of her moral integrity. Much discussion continues to take place about the nature of guardianship. Is it her right, which she may "confer" on someone of her choice? Is it her father's duty to her? Is her delegation of representation to a relative an automatic limitation as advisor on only those issues on which she wants advice? Some scholars consider it a requirement and some do not. Some say that any girl past puberty may contract her own marriage, while others contend that a female always needs a guardian.
American Law Affecting Marriage Contracts
In America, a marriage contract is not legally enforceable unless it is in writing and the bride is present and assents to the marriage at the time of signing. This is the law in almost every state, based originally on the British Parliament's 1677 "Statute of Frauds." Therefore, it is better for the bride to verbally assent. Preferably, she should sign her contract herself.
In America a promise made upon marriage is not enforceable. This is the opposite of Islamic law, where a promise is legally binding with or without a written contract. If a Muslim man promises to pay a dowry of $5,000 to the wife after marriage or upon divorce, it will not be legally binding in this country unless it is put in writing. In most states there is a "statute of limitations," which lasts only six or seven years, after which a contract is not binding. This necessitates stating that the marriage contract will remain in force for the entire length of the marriage, including periods of separation. This last point is to ensure financial upkeep and use of domicile during periods of separation between divorce pronouncements and to preclude the man's marriage to someone else while in a state of separation.
It should be noted that the term in American Law for marital mutual obligations is "consortium." In many states only the husband can sue in court for the "loss of consortium" (i.e., if the wife leaves the home or lives apart from the husband, he can divorce her for "loss of consortium"). In the eyes of the law, the wife is not seen as empowered to sue if the husband does not fulfill his mutual obligations. While the husband's main obligation is financial upkeep of the wife and children, which is enforceable by law in all of the states, the wife's obligations include: maintaining a home, care of the husband, and gratifying his needs. Obviously this is a nebulous area and a husband could, under these terms, have an unending list of what he considers his "needs."
This is contrary to Islamic Law, since a wife is not legally obligated to perform any cooking, cleaning, washing, etc., in her household and is not even responsible to perform those acts. A Muslim wife cannot, however, enter a stipulation which absolves her from gratifying the sexual needs of her husband, since that is a right he holds. What can be stipulated though, since Islamic law recognizes the sexual rights of the wife, is to enter a stipulation that sexual gratification must be mutual.
All purposes of marriage assumed under American law are legally binding even though they may not appear in writing. These purposes involve a concept of a "union for life" which provides: mutual benefit, companionship, mutual sexual gratification, economic help, and a union in which to procreate and raise children. The issue of "economic help," which is not required of the female in an Islamic marriage, necessitates contract stipulations that preclude the wife becoming economically legally responsible at any time during the marriage.
Lastly, if an underage child or a person already married concludes a marriage contract, it is considered mull and void and cannot be annulled. This means under U.S. law any woman or children who are part of the "second wife marriage" in a polygynous marriage will have absolutely no legal rights to upkeep, care, or inheritance. All states consider marriage to more than one wife as "bigamy," which is a felony (major crime). A woman who knowingly marries a married man could be prosecuted. Children under 16 may get married with the consent of their guardian and many, but not all, states prohibit the marriage of first cousins.
The Marriage Contract in America
Where does all this leave Muslim Americans? Frequently, Muslim Americans, lacking access to Arabic literature, attach themselves to the books of a few scholars outside America. We attempt to apply foreign solutions to the American setting. Should we not use our individual and collective minds to search for answers that will fit our circumstances? Is this not our responsibility, our right, and our destiny?
We should develop concepts and practices that work for the continuance of the Muslim family in America. We must keep in mind that many of the objectives and requirements of Islamic marriages will never be observed here unless we write them in a contract. American courts will not uphold rights of women and men that are deemed to be based in a "foreign" religious legal code, since U.S. law demands "the separation of church and state.
It is recommended the actual contract be formulated as a prenuptial agreement and reviewed by a lawyer or paralegal to ensure its enforceability in the state in which the couple are getting married. A prenuptial agreement is a legal tool recognized all over the United States and would have more legal weight in the minds of judges who may be prejudiced against Islam, Muslims, or immigrants.
To have proper legal effect, the prenuptial agreement/Islamic marriage contract should be written, signed, and registered at city hall or county office before obtaining the marriage license. It should be concluded before the formal marriage ceremony at a mosque or any other place when the imam or officiating person with legal authority signs the marriage certificate. The importance of this cannot be overstressed.
The marriage contract is one element of Islamic thinking where religion and culture often collide. However, it can be designed to Islamically promote the highest possible level of character for both spouses and to preclude any possible abuse of women. It is an issue which can greatly impact a woman's life and so it should be considered carefully.