Many educated individuals, even some raised as Muslims, harbor the misconception that religion and tradition are equal forces preventing positive change. Perhaps this is because Muslims have not yet devised ways to apply the principles of the Qur'an and the Prophet's Sunnah to the demands of the 20th century. This must be done in a way that is both practical and that maintains the fidelity to the intent of pleasing Allah.
The Qur'an and the Sunnah contain all the seeds necessary for Islamic practices in all times and places, and Islamic religious thought should be a catalyst for healthy change, not militate against it. This is possible when Muslims distinguish between human traditions and Islamic precepts. Seeking Allah's pleasure should be our focus, not a particular ethno-historical perspective, whether it emanates from the West or East. Ethnically based "faith" is incapable of providing a God-centered worldview and merely gropes toward equitable gender relations.
In fiqh, enforceable rights and obligations obtained in the marriage contract are based on the presumed purposes of an Islamic marriage. These include but are not limited to: creation of a unit of society that mutually accepts Allah as an integral part of every situation and decision; a unit that recognizes mutual rights and obligations toward each other and all other members of the extended family on both sides, whether they be in the same place or not and whether they are Muslim or not; creation of a home that promotes and ensures equity, peace, comfort, security, legally and publicly recognized intimacy, and mutual gratification, including mental, spiritual, and physical.
The Islamic marriage contract is meant to solidify these bonds and specify stipulations important to the woman and the man. In Islam this document is a civil contract, not a religious sacrament. In fiqh it is listed under mu'amalat (business transactions). The contract should be drawn up with the intent of safeguarding present and future legal rights of the signatories, should encourage marital harmony, and should include stipulations in keeping with the spirit of the Qur'an and Sunnah. Stipulations should be clear, precise, and, where applicable, refer to exact amounts. Any stipulations about future children should reflect a sincere attempt to provide the best atmosphere for rearing Allah-conscious children. The overall purpose of this contract, as in all other acts of a Muslim, is to please Allah.
The Qur'an (4:34) declares men to be qawwamun, protectors and maintainers of women, and considers them responsible for the upkeep of the family regardless of the wife's health. This includes responsibility for children, which continues even after divorce.
Often this ayah has been, but should not be, construed as a license to treat the wife as a pubescent child. We know from the consistently respectful and equitable behavior of the Prophet with his wives and other Muslim women that he considered them owners of their own cognizance, and capable of reasoned thought. Allah (33:35) and Allah's Prophet promoted in both females and males personal consciousness of Islamic precepts and physical capability.
According to current thinking in all madhahib (schools of thought), the wife is charged with three main responsibilities toward her husband: gratifying his sexual desires, safeguarding her honor and person in his absence, and guarding his physical property.
Notice no reference is made to cooking, cleaning, or even nursing of children. These are not requirements in Islamic law, as the Prophet said the woman who performs these services does so out of the goodness of her heart. This is reported by Bukhari.
Beyond these few determined responsibilities, a married couple may devise any type of marital lifestyle that they both agree upon, and are beholden to no other couple's idea of what a "proper" marriage should be.
The basic requirements of a contract are: 1) declaration, 2) capability of the contractees to understand all contract implications, 3) consent of the woman, 4) conclusion resulting from an offer ('ijab) and acceptance (qabul) with two witnesses, 5) and a mahr (dowry).
There may be an immediate mahr, a continuous one during each day, month, year of marriage, and a deferred one upon dissolution of the marriage or death of the husband. If no mahr has been fixed, then the qadi (judge) can fix it as a "mahr al mithl" based on the groom's circumstances and financial capability. Cooperation of a guardian (wali) is necessary, according to most schools of thought, if the bride is a minor virgin, but this is not necessary if she was married previously. In the Shafi' madhab, a contract is defined as a contract between the groom and the wali of the girl, but the wali must be of sound character and be a male ascendant or descendant of the girl from the father's or grandfather's side.
Some prohibitions are a contract: 1) that does not fulfill the legal requirements (i.e. a man who marries a woman on the agreement that she must financially support him); 2) that requires a man to divorce his current wife in order to marry the new wife; 3) that exchanges two daughters in marriage with no mahr for either; 4) that prevents a man from marrying another women; 5) that is concluded while the woman is engaged to another; 6) that concludes a temporary marriage (not jaafari); 7) that is concluded while the woman is in 'iddah (waiting period after divorce or husband's death); 8) that is with: a)a muhrum, blood relative, b)a kafir, c) someone of the same sex, d) your sister's, aunt's, or niece's husband, e) one's milk son, f) a man after he divorces you three times, or g) a man of a different religion unless he converts.
The definition of a valid marriage contract varies in different Muslim countries, but the personal status laws of these countries, while sometimes leaning heavily on Swiss or French civil codes, use Islamic Law as the ultimate reasoning behind rulings given in their courts of law. In the interpretation of shari'ah, three documents are depended upon in most of the Muslim countries except Turkey: 1) Muwatta of Imam Malik, 2) Ottoman Family Rights Law of 1917, and 3) The Mejelle of 1876.
The first laws concerning marriage contract stipulations written at the international level (when the Muslim Khalifate still existed prior to 1917) were part of the Ottoman Family Law, which considered non-compliance with stipulations as grounds for dissolution of the marriage at the instigation of the wife with no penalty on her. After Western powers succeeded in chopping up the Islamic Khalifate into separate "national" states, Jordan, Syria, Iraq, Iran, and Kuwait added other stipulations at the country level. These include: a wife cannot be removed from an agreed-upon locality; the wife has the right to divorce if the husband takes another wife (based on the story in the Muwatta of Imam Malikk about Abdullah bin Umar and Abu Hurairah, concerning a man who authorized his wife for divorce); the wife may work outside the home; and the wife may complete her studies (Kuwait only).
Scholars debate heavily over these and other issues. As recently as the summer of 1995, a committee set up at Al-Azhar University in Egypt on the subject of women and the marriage contract rejected stipulations suggested by a collection of Muslim women's groups, which included asking in the contract if the man was currently married to any other woman.
In Yemen a woman must be 35 years old to marry someone 20 or more years her senior. In Jordan, it is illegal for a girl under 18 to marry someone more than 20 years her senior. This is a very hot issue in Egypt and Pakistan, where old men from Persian Gulf countries pay what is considered locally a huge amount of money as mahr to marry children below 12 years old or women 40-50 years younger than themselves. The mahr is usually kept by the girls' families and these girls are often returned to their families within six months.
Most madhahib draw distinctions between puberty and competence. Based on Ottoman Family Law, minimum marriage age for boys is 15-16 and for girls 13-16, while the age for competence is considered 18 for boys and 16-17 for girls. Beginning puberty is age 12 for boys and age 9 for girls; ending at age 15 for both.
Because of the widespread misuse of polygyny and because of secularist Westernizing trends that aim to dismiss Islamic law in several Muslim countries, laws that limit or prohibit marriage to more than one woman at one time have recently emerged. Ottoman law allowed the wife to dissolve her marriage or demand the dissolution of the new wife's marriage. The new state of Turkey in 1926 completely abolished polygyny. It was prohibited in Iraq in 1963, and Jordan currently allows the wife to dissolve her own marriage by state law. North Africa adopted laws modeled after the law of their former oppressors--The French Code of Law. The Tunisian Code of 1956 outlawed polygyny.
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.