The Muslim Marriage Contract
Marriage contracts are becoming increasingly popular amongst young people. In Muslim communities, more and more people are opting to put certain agreements into writing before saying “I do”. It never hurts for a couple to sit down and do some realistic projections about their expectations in a relationship. Where do they think their careers are going to lead? Where do they imagine they’ll be living in 10 years? How will they share the household duties? What are their plans with respect to children? Whose career will be interrupted in order to care for the children? How will that person be protected?
Couples need to know that there will be challenges to their relationship. Typically, they come in the categories of money, children, relatives, careers, and, unfortunately, the arrival of new people on the scene. Couples need to have realistic expectations in a marriage. This doesn’t mean that you have to be cynical or jaded about people and life, but it does mean that you are aware that anything can happen. Anything.
Almost two years ago, I wrote a long twitter thread explaining what a Muslim marriage contract entails and why I think every young person looking to get married should get one. The reactions from many young Muslim men were quite appalling. Many of them interpreted this gesture as an attack on the male gender, some said it was a sign that couples don’t trust each other and many others said it was a means to sneak liberal ideologies into Islam. As much as I tried to establish the fact that marriage contracts have always been a part of Islam, they seemed to be averse to a voice of reason. So I have decided to discuss the myths and realities of the Muslim Marriage contract, hoping to clear doubts and reinforce conviction in this practice.
A marriage contract is an agreement signed before or after a wedding that provides a private and custom-made code for how the couple will conduct themselves in a marriage and how issues such as dispute resolution, child custody, maintenance and property division should be handled should they separate and divorce or die. To appreciate the function of a marriage contract, one must appreciate the consequences of marriage itself. In Islamic law, marriage is not just a union based on love and compassion. It is also one with rights and responsibilities. The agreement for two distinct people to live together as a couple is one that comes with a lot of complexities. No two marriages are the same. There are usually nuances involved based on culture, circumstances and social conditioning, which requires that each couple decide upon unique terms on which they want their marriage to be built.
REALITIES OF THE MUSLIM MARRIAGE CONTRACT
“And fulfil (every) covenant. Verily, the covenant will be questioned about” [Al-Isra’ 17:34]
In Islam, marriage is considered both a social agreement and a legal contract. Otherwise known as a prenuptial agreement, the Muslim marriage contract is a formal, binding contract considered as an integral part of an Islamic marriage. Amongst the many conditions that can be stipulated in a marriage contract are living arrangements, injunction against all forms of abuse, Amount of Mahr and when it is to be paid, right to education, right to work, right to financial independence, shared domestic responsibilities, relationship with in-laws, parenting agreements, delegation of right to divorce – Talaq-al-tafwid, monogamy/polygyny, maintenance and child support, amongst others.
The Polygyny Clause
The stipulation that a man will not marry other wives besides the bride is a highly contested topic in Muslim communities. But according to the Majority of scholars, the shari’ah allows for the wife to stipulate whether or not she’ll be willing to be part of a polygynous marriage. This is based on the explanation that the provision for polygyny in Islam is merely a “right” which can only be exercised when certain conditions are met. If the man agrees to forego this right, then his covenant will be binding. Breach of this condition can therefore entitle the wife to annul the marriage contract.
Ibn Qudaamah (may Allah have mercy on him) said:
“If a man stipulates that he will not take the woman out of her house or her city, or that he will not travel with her or that he will not take another wife, then he is obliged to fulfil that, and if he does not do so, then she has the right to annul the marriage. This was narrated from ‘Umar, Sa’d ibn Abi Waqqaas and ‘Amr ibn al-‘Aas (may Allah be pleased with them).”
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: “If she stipulates that he should not take another wife, this is permissible.“
Shaykh Saalih al-Fawzaan (may Allah preserve him) said:
“Among other conditions that are valid in marriage is if she stipulates that he should not take another wife. If he fulfills the condition (all well and good), otherwise she has the right to annul the marriage because of the hadeeth, “The condition which most deserves to be fulfilled is that by means of which intimacy becomes permissible for you.” Similarly, if she stipulates that he should not separate her from her children or parents, this condition is valid and if he breaks it, she has the right to annul the marriage. If she stipulates that her mahr should be increased or that it should be in a specific currency, the condition is valid and binding, and he has to fulfil it, and she has the right of annulment if it is broken.“
MYTHS OF THE MUSLIM MARRIAGE CONTRACT
1. Muslim Marriage Contracts are Not Binding
This is very far from the truth. A Muslim marriage contract, when drafted and executed properly, is just as binding as any other legal contract.
In order to have a properly drafted and executed agreement, you must follow four simple rules:
– the agreement must be in writing;
– the dowry must be stipulated;
– it must be signed by both parties of sound mind who have attained the age of maturity;
– the signatures must be witnessed by not less than two people.
When the requirements for a valid legal agreement are met and the parties enter into such agreements with their eyes wide open, then such agreement becomes binding and enforceable. While the myth may suggest that marriage contracts are not enforceable or binding, the reality is these documents, when properly prepared, are as binding as a lease, a mortgage, or an agreement to buy a house.
2. Muslim Marriage Contracts Spoil the Romance and Assume that the Marriage Will Fail
Having a good marriage contract can actually make both spouses feel more comfortable and secure in their relationship, which allows them to better enjoy the marriage. Looking at these agreements as a possible way of strengthening the relationship rather than a way of undermining the romance goes a long way. There are lots of documents that couples need to review: Wills, powers of attorney, agreements of purchase and sale and, in some cases, marriage contracts.
3. Muslim Marriage Contracts are Only For People Who Are About to Get Married.
The term “prenup” or “prenuptial agreement” is often used in place of “marriage contract.” Every prenuptial agreement is a marriage contract, but not every marriage contract is a prenuptial agreement. Prenuptial literally means that it was signed before the marriage. After the marriage takes place, it is still possible for the couple to sign a marriage contract. Granted, there might be a little less leverage in the negotiations, but many contracts are still signed after marriage.
4. You Don’t Need a Lawyer to Execute a Muslim Marriage Contract
While it is true that there’s no legal requirement under the Shari’ah that a couple must hire a lawyer to draft a marriage contract, a lawyer’s professional advice can make the contract bulletproof. To ensure that an agreement is binding when it counts most, a lawyer is needed for its execution.
Independent legal advice on marriage contracts are extremely important in order to avoid problems down the road, such as one party claiming: “I didn’t know what I was signing,” “I never had a chance to talk with a lawyer,” or “If I’d known I was giving up my rights, I would have never signed it.”
It’s natural to want to keep the legal fees at an absolute minimum. However, each party must independently seek the advice of a lawyer who’s knowledgeable in Islamic family law. This is very important because there’s usually an inherent conflict of interest in advising them about their rights.
One of the lawyers can take the lead in drafting an agreement that captures the consensus of the couple. Once the agreement is drafted, the other spouse can then take it to his/her own lawyer for independent legal advice to see if it achieves the goals he/she had in mind. So while the myth is that lawyers should be avoided, the reality is that their advice can be what makes this contract enforceable.
This essay was originally published on About Islam
Wardah Abbas is the Founding Editor of The Muslim Women Times. She is a Lawyer, Writer and Social Justice activist.