Marriage contract! – these are two words that can spark a flurry of emotions! From excitement to downright terror, the myriad of reactions it generates can be quite revealing. If your prospective partner requests that you get a marriage contract signed before the wedding, would you welcome it as a significant step towards a loving relationship? Or would you feel threatened and potentially call off the wedding?
A few years ago, our campaign to revive the Muslim tradition of marriage contracts faced significant pushback. Critics labeled it a Western innovation, while some men saw it as a threat to their “authority”. Many others worried that marriage contracts would erode the trust and love in a relationship. Yet, despite recognizing the benefits, women often hesitate to bring it up, for fear of rejection.
Musawah’s recent policy brief, ‘Supporting Just and Harmonious Marriages through Marriage Contracts,‘ upends these misconceptions. It reveals that conditions in marriage contracts are, in fact, rooted in Muslim textual, historical, and legal traditions. Musawah is a global movement for equality and justice in the Muslim family, advancing human rights for women living in Muslim contexts.
To separate fact from fiction, TMWT sat down with Musawah. And here’s what they shared:
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 have always been a part of Muslim tradition across contexts. We have historical evidence that this was actually 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 own marriage contract, stating that her husband remain monogamous in their marriage. The policy brief is highlighting 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 through sharing this important knowledge, and advocating for necessary legal reforms.
TMWT: If marriage contracts have always been a part of Islamic tradition, what do you think is responsible for why there’s so little awareness about it?
MUSAWAH: The level of our contemporary awareness is shaped by our contemporary 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 own contexts. In other words, to understand the conditions we live in, we first must read and understand our legal rights as citizens.
The Quran and Sunnah describe marriage as a solemn covenant built on love (mawaddah), compassion (rahmah), and beauty and goodness (ihsan). When we look at the Islamic legal tradition, we see that jurists considered marriage to be a contract (‘aqd) between two parties who, as with any contract, enter it freely. This includes offer (ijab) and acceptance (qubul). In most Muslim contexts, written marriage contracts are a common and accepted practice.
The resistance and little awareness show up when the partners want to add their own conditions to their marriage contracts. This reality has been shaped by the spread of religious misconceptions and this is why we believe this 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 do not?
MUSAWAH: Marriage contracts have many advantages, including ensuring both partners’ expectations are clear. This clarity makes the partnership easier and gives room for conversations on how to support each other in upholding these agreements. As a legally-binding document, a marriage contract protects the partners’ rights, which is essential when there are disagreements, especially when children are involved.
When it comes to the Muslim tradition, marriage contracts are standard practice that have existed for centuries. Our goal at Musawah is to highlight, in this existing practice, what is permissible but has been neglected: adding conditions to one’s marriage contract. Agreeing on conditions to marriage contracts 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 partners a chance to agree on their decision-making processes and reduces 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: As mentioned earlier, in most Muslim contexts, written marriage contracts are a common and accepted practice. Most of the resistance comes when the partners want to add their own conditions to their marriage contracts. This resistance is mainly due to social and cultural reasons that are distinct from, but often attributed to, religion. This resistance is also exactly why it is essential to raise awareness and to work with different stakeholders in our communities to make sure young couples know their rights.
Whether a couple decides to add conditions or not 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 about 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 own preferences and boundaries, and understanding how to translate those into their marriage contracts, the couples, their future children, their families, and societies at large 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 both of them.
The process of adding conditions does not have to look like a business meeting! You can talk to your partner and together create this ethical and loving foundation of 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, as well as 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, the majority of couples often do not add conditions to their contracts. Many partners are not aware that this can be 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 is one that 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 fiqh. Sharia, which in Arabic means a path, is the sum of religious values and principles that guide Muslim lives. Fiqh, on the other hand, 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 in line 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 contracts is not new or radical and has existed across contexts since the early days of Islam.
TMWT: If a couple have agreed to execute a marriage contract, will they 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 you want and are legally able to add to your marriage contract. When we look at different Muslim contexts, marriage contracts are structured and used very differently; some of them outline only mandatory elements of marriage (such as offer, acceptance, and dower), and others can be very detailed. In some countries, standard marriage contracts provided for 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, 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 those in which marriage contracts are not widely used.
Here, we recommend 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 and published. 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 itself and 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.
