‘Conditions, Not Conflict’: Are Love and Marriage Contracts Mutually Exclusive? – TMWT X MUSAWAH

‘Conditions, Not Conflict’: Are Love and Marriage Contracts Mutually Exclusive? – TMWT X MUSAWAH

…the process of adding conditions to your marriage contract does not have to look like a business meeting! You can talk to your partner and create this ethical and loving foundation for your marriage.

– Musawah

What would you say if your prospective spouse requests that you get a marriage contract executed before the wedding? Would you welcome it as a great idea and a significant step towards a loving and harmonious relationship? Or would you consider it an affront, feel threatened and potentially call off the wedding?

Recently, Musawah launched a new policy brief titled “Supporting Just and Harmonious Marriages through Marriage Contracts“, reinforcing the importance of marriage contracts in creating equitable relationships in Muslim communities. Musawah is a global movement for equality and justice in the Muslim family, comprised of NGOs, activists, scholars, legal practitioners, policymakers, and grassroots women and men worldwide. Musawah’s vision is a world where the basis for all human relations is equality, non-discrimination, justice and dignity. In a brief question-and-answer conversation with Musawah’s knowledge-building team, we discovered more about the tradition of marriage contracts in Islamic history and why it should be brought back as a modern solution to today’s problems.

TMWT: You recently launched a new policy brief, titled “Supporting Just and Harmonious Marriages through Marriage Contracts”, highlighting how marriage contracts can be a tool to equalise power between partners. Has this always been a part of Islamic tradition or is it just a modern innovation?

MUSAWAH: Marriage contracts, and adding conditions to marriage contracts, have always been a part of Muslim tradition across contexts. We have historical evidence that this was common practice and we know that Muslim judges (qadis) upheld the conditions. We also have examples from early Islamic times, such as when Sukayna bint Hussein, the great-granddaughter of the Prophet Muhammad and granddaughter of Ali and Fatima, included conditions in her marriage contract, stating that her husband be monogamous in their marriage. Our policy brief highlights what has always been there. Moreover, Muslim women have always fought to improve their conditions in different and diverse ways. At Musawah, we honour their efforts by continuing the fight, sharing this important knowledge and advocating for necessary legal reforms.

TMWT: If marriage contracts have always been a part of Islamic tradition, what would you say is the reason why there’s so little awareness about it?

MUSAWAH: The level of our contemporary awareness is shaped by our modern realities. Many of the problems Muslim women are now facing vary based on where they live and the type of legal rights they have in their contexts. In other words, to understand our living conditions, we must first read and understand our legal rights as citizens.

The Quran and Sunnah describe marriage as a solemn covenant built on love (mawaddah), compassion (rahmah), beauty and goodness (ihsan). When we look at the Islamic legal tradition, we see that jurists considered marriage a contract (‘aqd) between two consenting parties who, enter into it, just like any other contract. The offer (ijab) and acceptance (qubul) of marriage are the two most important foundations of the contract. In most Muslim contexts, written marriage contracts are a common and accepted practice. The resistance and little awareness show up when partners want to add specific conditions to their contracts. Religious misconceptions, largely shape this reality and this is why we believe that our Policy Brief is essential to raise awareness and assert a much-needed return to Islamic values and teachings that view marriage as a partnership of equals. We must also clarify here that fiqh schools agree that conditions cannot be included if they go against the purpose of marriage or take away legal rights that either of the parties already holds.

TMWT: What advantages do marriage contracts confer upon Muslim marriages that the absence of one does not?

MUSAWAH: Marriage contracts have many advantages, which include ensuring that both partners’ expectations are clear. This clarity makes the partnership easier and opens up conversations on how best to support each other in upholding these agreements. As a legally binding document, a marriage contract protects spouses’ rights and helps to resolve conflicts, especially when children are involved. This is a standard practice that has existed for centuries in Muslim traditions. Our goal at Musawah is to highlight what is permissible but has been neglected. Agreeing on conditions in a marriage contract can ensure equal rights to divorce, promote fair division of household chores and domestic and financial responsibilities, and even specify that the marriage will remain monogamous. This, by extension, gives spouses room to agree on decision-making processes, helping to reduce possible conflicts throughout the marriage.

TMWT: Given that marriage contracts have always been a part of Islamic tradition, why do you think Muslims are resistant to it? What difference does it make if Muslims decide to start executing marriage contracts?

MUSAWAH: We mentioned earlier that written marriage contracts are a common and accepted practice in many Muslim contexts. Resistance usually occurs when the partners want to add specific conditions to their marriage contracts. This resistance is mainly due to social and cultural reasons which are distinct from, but often attributed to religion. This resistance is also why raising awareness and working with different community stakeholders are crucial to ensuring that couples know their rights. Whether or not a couple decides to add conditions is entirely based on their preferences, but learning about options and agreeing on the terms of a contract is an essential step to ensure the couple is making an informed decision before the marriage begins. How can this be done? States can train marriage registrars on their responsibility to inform couples and ensure marriage contracts are used to their full advantage. Madrasahs and ministries can promote the option of adding conditions to existing marriage contract templates, and families can start the conversations at home. When Muslim communities practise this clarity and transparency with young couples and educate them about the benefits of learning about their preferences and boundaries and understanding how to translate those into their marriage contracts, the couples, their future children, their families, and societies will all benefit.

TMWT: What would you say to those who worry that marriage contracts take away the trust and romance in a marriage, and make it look like a business transaction?

MUSAWAH: Marriage contracts give the couple a special chance to deepen their trust. This is so important, especially when our legal systems tend to discriminate against women and girls. Knowing these legal and lived realities, it is an act of love and care when the couple decide to support each other and create a marriage that enriches them both. The process of adding conditions to your marriage contract does not have to look like a business meeting! You can talk to your partner and create this ethical and loving foundation for your marriage. This can create a sense of respect, care, trust, and intimacy between the couple. In the cases of conflicts, it can be a reminder to stay rooted in Quranic values of justice, love, mercy, and goodness, which can protect them emotionally, spiritually, socially, and financially.

TMWT: What steps or action plans do you think should be taken, both locally and internationally, to counter resistance to the execution of marriage contracts in Muslim communities? What do you think needs to be done to get more and more Muslims to enter into marriage contracts?

MUSAWAH: Despite the many benefits, many couples often do not add conditions to their contracts. Many partners are unaware of how this can be a part of the marriage process and that it is consistent with Islamic principles. Marriage registrars may not know about or may choose not to inform the couples and their families about the possibility of including conditions ᠆ or may even discourage them in some cases. Couples, especially women, may be deterred from articulating conditions by cultural, societal, and communal perceptions of what Islam allows.

Contract conditions can safeguard women’s rights within and outside the home. This affects women’s sexual and reproductive health and rights, as well as mobility, education, and career rights. Marriage contracts can become an easy tool to equalise power between partners and ensure their marriage follows Quranic ethics. It’s important to remember that while the Quran and Sunnah provide broad ethical guidance for all Muslims, Muslim-derived laws and practices differ dramatically across communities. To understand this diversity, we can distinguish between two key concepts in Muslim legal tradition: Sharia and fiqhSharia, which in Arabic means a path, is the sum of religious values and principles that guide Muslim lives. Fiqh, however, is the human understanding of Sharia and the human process for creating legal rulings from sacred sources. While Sharia is divine, fiqh is hu(man)-made understandings that can be changed. Our Muslim family laws are built on fiqh ᠆ they are derived from human interpretations of the Sharia that were codified into law by hu(man) lawmakers. They differ across countries based on religious interpretations as well as cultures, customs, norms, and colonial influences. Because they are hu(man)-made, they can change to be more in line with the needs of society and the ethical goals of the Sharia. This is consistent with the rich tradition of change that has always existed in Muslim legal tradition. In line with this diversity, marriage contracts can also differ between contexts. Adding conditions to such agreements is not new or radical and has existed across contexts since the early days of Islam.

TMWT: Upon agreeing to execute a marriage contract, will a couple need to have legal advice on it? And how enforceable are Muslim marriage contracts in national and international courts?

MUSAWAH: This again depends on the context. If you live in a country where marriage contract templates already exist, the question becomes what do you want? And what do you have the ability to add to your marriage contract? When we look at different Muslim contexts, marriage contracts are structured and used very differently; some outline only mandatory elements of marriage (such as offer, acceptance, and dower), and others can be very detailed. In some countries, standard marriage contracts in the laws include minimum conditions upon which a spouse can get a divorce or may provide space for the couple to add mutually agreed-upon conditions. This is the case in Algeria, Bangladesh, Egypt, Iran, Morocco, and Pakistan, for instance, with options differing based on the individual country’s laws. In other contexts, however, conditions may not be part of a codified law, but courts would still recognize them. The permissibility of conditions remains contested in other contexts, especially ones in which marriage contracts are not widely used.

We suggest the use of model marriage contracts that have been produced by Islamic scholars or NGOs. Couples can start with these marriage contracts and consult local lawyers to ensure the contract can be duly entered and enforced in their context. Some model contracts include one that follows provisions of the Moroccan Moudawana produced by Global Rights in consultation with lawyers and NGOs. It is available in English, Arabic, and French in a booklet entitled ‘Conditions, Not Conflict.’ There is also a ‘Muslim Marriage Contract’ produced by scholars and endorsed by multiple Muslim groups in the United Kingdom; a ‘Marriage Contract Toolkit’ published by the Canadian Council of Muslim Women; and chapters in a book called Tying the Knot that suggest how couples can discuss, draft, and decide on conditions in marriage contracts. These contract examples are not the only ones; there are examples of many others across Muslim-majority and minority contexts, where couples are leading the way and drafting their own contracts to lay out the provisions, goals, and values they agree their marriage should be built on.

Discussing and agreeing upon conditions in marriage contracts is good for the couple, the marriage and their future children. The process of adding conditions can reduce conflict within marital relationships, strengthen marriages, and support families and societies. Advocates in different contexts can popularise standard marriage contracts that couples can adapt to suit their needs and advocate for new laws that promote equality in marriage. It is time we live in a world where equality and justice are upheld in our Muslim societies and reflected in laws, cultural practices, and religious discourses.

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