The pillars of a marriage contract according to the majority of scholars
1. Offer and acceptance are among the pillars. For most scholars, the offer must be from the woman’s side and the acceptance from the man.
2. The two parties to the contract: the prospective husband and the guardian of the woman.
Some also count the following among the pillars, although the majority of these scholars count them among the prerequisites:
* The presence of witnesses.
* Dowry.
The wording of the contract
There are a variety of opinions as to exactly which phrases are valid in the transaction of the marriage contract. However, the best format is that actually used by the Prophet and his companions . Also, it is recommended that the contract be executed verbally. However, due to need or necessity, it may be done through writing or signing.
Among the different possible phraseology, the very clear terms such as: “I marry you” is accepted by all scholars. Anything which indicates a temporary nature of the contract is forbidden. There is some difference of opinion concerning the validity of other phrases such as: “I present to you”, “I give to you”, “I sell to you”, etc.
Does it have to be in Arabic?
According to the majority of scholars, it is not necessary for the marriage contract to be executed in Arabic, even for those who have the ability to speak Arabic. The scholars of the Hanbali school, who required the use of forms of the words Nikaah or Zawaaj (marriage), required that the contract be transacted in Arabic for this reason.
The different types of conditions or prerequisites
At this point, we need to learn the definition of some general terms in Islamic Fiqh (Jurisprudence), related to this issue, which come up in many subject areas, including the one at hand.
Saheeh (Sound): A contract which fulfils all of the pillars and the prerequisites, and has full effect in the law.
Baatil (Void): A contract that has failed to fulfil specific pillars or vital prerequisites. A contract which is Baatil is the opposite of one which is Saheeh and has no legal effect at all. If a marriage contract is found to be void, even if it is only discovered after consummation, the legal condition will be as if it never happened at all. The lineage of the father (of a child produced in such a ‘marriage’) will not be established and there is no waiting period (‘Iddah) upon the woman. An example of this would be if a man married a woman who was married to someone else at the time.
Faasid (Defective): This is a contract which fails to fulfil some of the prerequisites, but not the pillars.
With respect to marriage, there are four different kinds of conditions which must be met:
1. Conditions Required for Initiating the Contract
These are the conditions that must be present with respect to the pillars or fundamentals of the marriage contract.
2. Conditions Required for the Soundness of the Contract
These are conditions which must be fulfilled in order for the marriage to have its proper legal effect. If these conditions are not met, the contract is ‘Defective’ (Faasid), according to Hanafi Fiqh, and ‘Void’ (Baatil) according to the others.
3. Conditions Required for the Execution of the Contract
These are conditions which must be met for the marriage to have actual practical effect. If these conditions are not met, then the marriage is ‘Suspended’ (Mawqoof) according to Hanafi and Maaliki Fiqh; for example, a minor girl until she reaches puberty.
4. Conditions Required for Making the Marriage Binding
If these conditions are not met, then the marriage is non-binding, meaning that either of the two parties or others may have the right to annul the marriage. If they accept the marriage with such shortcomings, it becomes binding.
Prerequisites required for initiating the contract
In this category, there are conditions concerning the two who are getting married, as well as the form in which the contract takes place.
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 these two were not allowed to marry each other and the marriage becomes null and void.
Concerning the contract:
There is near unanimous agreement on the following conditions relating to the transaction of the marriage contract:
1. The offer and acceptance must be done in one sitting. In general, this means that the response must be immediate. Exactly what is considered a ‘sitting’ depends on custom and other related factors.
2. The acceptance must correspond to what is being offered. If the guardian says: “I marry you to Khadeejah”, a response of: “I accept Faatimah 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 here since it is assumed that a higher dowry will be acceptable.
3. The Wali cannot rescind the offer. Unlike transactions of selling, neither party can say: “I have changed my mind” once they have uttered the offer/acceptance. It is immediately binding. In a sale, they both continue to have the option to change their mind until the ‘sitting’ is over and they part.
4. The marriage must be effective immediately. If the Wali says ‘I will marry her to you after one month’, there is no marriage and the two remain unmarried.
Note that the custom of saying: ‘I accept’ three times, which is common in some Muslim cultures, has no legal significance. Once the first ‘I accept’ has been uttered, everything after that is meaningless - whether positive or negative.
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. There is a difference of opinion among the scholars concerning the validity of conditions of this nature.
Conditions of contracts are two types:
1) Those imposed directly by the Shari’ah (Islamic Legislation) 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.
Article source: http://www.islamweb.net/emainpage
Dower is wife’s exclusive right
Islam has legislated the giving of the dower by the husband to the wife in order to please the woman’s heart and to honour her. It is also meant to bring an end to what was done in the Days of Ignorance wherein she was wronged, exploited, despised and robbed of her wealth. The dower is a right exclusively for the wife. It is her possession and none of her guardians or relatives may share any part of it. No one has any power over her concerning how she wishes to dispose of it, as long as she does so in a legally acceptable manner. She may give it away as a gift, she may lend it to others or she may give it in charity or do any other permissible acts she wishes with it.
The dower was instituted because the goal of marriage is not the actual act of the marriage contract in itself. In fact, the actual purpose of marriage cannot be achieved unless the spouses stay in a state of marriage. However, that may not be achieved unless the dower is an obligation at the time of the marriage contract itself. In this case, when there come times that may lead the man to divorce his wife, such as estrangement or coarse behaviour, the husband would not be willing to divorce his wife due to just the slightest act of rudeness that occurs. If it were not for the dower that was required due to the contract itself, it would be very easy for him to leave her.
Therefore, the goals of marriage would not be met as the goals and benefits of marriage are only met when the two are in accord and agreement with one another but that accord will not come about unless the woman is something honoured and special to the husband. But such honour will not come about unless he had to give up something important to him. This is because what is most difficult to achieve is most special to the person. Therefore, if the wife is not something special in the eyes of the husband, then he will dispose of her at the first sign of unhappiness, the accord will not occur and the purposes of marriage will not be achieved.
What we see happening in some European countries, and indeed some Muslim countries, is very strange indeed. This is where the woman is required to furnish a dowry or provide the furniture for their future house. This is definitely turning the natural order of things upside down and goes against the nature of mankind. It leads to a great deal of social ills and behavioural harm. It is a means by which the woman is despised and belittled. Indeed, she is ruined because of it. If the woman is not able to gather enough wealth together for marriage, she will not be able to get married and, instead, will have boyfriends and affairs, and other evil results.
Such a practice contains a great deal of evil and harm for the society; this practice may even bring about society’s end soon. There is a great difference between the case where the woman feels that she and what she possesses belong to her husband and where she feels that she is something desired and honoured, as the fiancé spends money on her and gives her presents and so on to get her as his wife.
One regrettable aspect of dowry-giving in recent times is that it is becoming more and more a matter of ostentation. Nothing could be more un-Islamic in motivation than this. Even the practice of performing a marriage quietly, without any flamboyant display of wealth, but subsequently giving a lavish dowry to enable the bride to set up her home is contrary to Islamic practice. It was certainly not the Sunnah of the Prophet (sallallaahu ‘alaihi wa sallam). Fatimah was his favourite daughter, but he neither gave her a lavish dowry nor did he send things to her home after the wedding, and even when she made a request to him for something of a material nature, he only gave her the benefit of his counsel.
Mahr (The Dower)
Islam has successfully maintained an even balance in society between men and women by giving its unequivocal endorsement to a practical division of labour, whereby women are placed in charge of the internal arrangement of the household, while men are responsible for its financing. The home is thus organised on the pattern of a microcosmic estate, with the man in a position of authority. The Qur’an is specified on this issue; Allah Says (what means): “Men are in charge of women by [right of] what [qualities] Allah has given one over the other and what they spend [in support] from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard…” [Qur’an 4:34]
For largely biological reasons, women are well adapted to domestic pursuits while men, for similar reasons, are better suited to work outside the home. These physical and mental differences between men and women are, in practice, what underlay Islam’s division of familial responsibilities into internal and external spheres, with the woman dealing exclusively with the home and family and the man providing the funds.
Mahr Mu’ajjal (Promptly given dower)
At the time of the marriage, the groom hands over to the bride a sum of money called Mahr (dower) which is a token of his willing acceptance of the responsibility of bearing all necessary expenses of his wife. This is the original meaning of Mahr, although this custom has come to have different connotations in modern times.
There are two ways of presenting the Mahr to the bride. One is to hand it over at the time of the marriage, in which case it is known as Mahr Mu’ajjal, or promptly given dower. During the time of the Prophet (sallallaahu ‘alaihi wa sallam) and his companions, Mahr Mu’ajjal was the accepted practice and the amount fixed was generally quite minimal. The giving of Mahr by ‘Ali to Faatimah who was the Prophet’s daughter, is an illustration of how this custom was respected. After the marriage had been arranged, the Prophet asked ‘Ali if he had anything he could give as dower in order to make Fatimah his lawfully wedded wife. ‘Ali replied: “I swear by Allah that I have nothing, O Messenger of Allah.” The Prophet then asked: “Where is the coat of armour I once gave you?” ‘Ali replied that it was still in his possession. The Prophet (sallallaahu ‘alaihi wa sallam) then instructed him to send the coat of armour to Fatimah thereby making his union lawful. This then was the sum total of Fatimah’s dower.
Article source: http://www.islamweb.net/emainpage/
