Inserting Conditions in Marriage Contracts: Permissible?
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Inserting Conditions in Marriage Contracts: Permissible?

Questioner

Anonymous

Reply Date

Jun 17, 2017

Question

Scholars of Islam, as-salamu `alaykum. I would like to know whether it’s permissible for a woman to add to the marriage contract a condition that her husband must not marry another woman?

Mufti

Answer


Inserting Conditions in Marriage Contracts

Wa`alykum As-Salamu Warahmatullahi Wabarakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.


In this fatwa:

Inserting a condition in the marriage contract that a husband must not marry another woman is a controversial issue among Muslim scholars. But, the majority of them hold the view that a woman has the right to add such a condition to the marriage contract and it’ll be binding upon the man. Like all other valid contracts, violation of a sound condition may nullify the marriage contract.


For more details on this thorny issue, we’d like to cite for you the following:

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 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.

Understood Conditions Based on what is Customary

It is a general principle in Fiqh (Islamic Jurisprudence) that customs can take the status of law. It becomes understood that people are going to behave in a certain fashion. Since that is understood, one party has the right to ask it of the other even if it is not stated in the contract.

In the area of marriage, there are some stipulations that are known by custom. These do not have to be mentioned in the contract to be considered binding. However, there are some strict conditions that must be met before a customary act is considered something equivalent to a legal stipulation.

These conditions are as follows:

The customary practice must not contradict anything expressly laid down by the Shari`ah. For example, it is a custom in some parts of the world for the woman to pay dowry.

Neither party has the right to demand of the other the fulfillment of such custom, for it’s not valid; it contravenes the teachings of Shari`ah.

The customary act must be common, well-known and universal and not something practiced only by some portions of the population.

The custom must have been in existence and known before the marriage contract took place.

Unacceptable Conditions

Any condition, which contradicts, compromises or nullifies the main goals and purposes of the marriage contract itself is rejected and, even if stated, is of no legal consequence.

For example, conditions that state that the woman receives no dowry or that the husband does not have to support her or that they will not consummate the marriage are all null and void and of no effect whatsoever.

Sound and Acceptable Conditions

Such conditions must be stipulated and agreed upon at or before the time of the offer/acceptance. Even those scholars who accept such stipulations do not accept them if they are made after the offer/acceptance. There are two types of sound and acceptable conditions:

Those inserted in the contract even if they are not stated. This includes conditions known from the Shari`ah as well as those known from custom as discussed previously. The Prophet, peace and blessings be upon him, said: “The conditions you have the most duty to fulfill are those by which you have made marital relations lawful.”(Al-Bukhari and Muslim)

Many scholars understand this Hadith to be referring to these kinds of conditions that are covered by the Shari`ah in the first place.

This is the view of the Shafi`i school. They do not allow any additional stipulations to be added to the marriage contract.

Those conditions which are not covered by the essential nature of the contract but which are agreed upon by the contracting parties. These are the stipulations that do not contradict the general goals of the contract, do not bring harm to anyone and they apply to things that are permissible and within the right of the person to agree – that is something that does not go against the Shari`ah. They are laid out in the beginning to avoid any conflict or hardship in the future.

In General, Muslims Must Fulfill Their Agreements

Generally speaking, Muslims must comply with any agreements that they make, as long as such agreements do not involve anything unlawful. Allah says about the believers: “… And those who fulfill their pacts when they make one…” (Al-Baqarah 2:177) “O you who believe fulfill your contracts…” (Al-Ma’idah 5:1)

The Prophet, peace and blessings be upon him, said: “Muslims are bound by their stipulations.” (Abu Dawud and Al-Hakim)

During the time of `Umar ibn Al-Khattab (may Allah be pleased with him), a man married a woman upon the condition that he would not move her from his house. The time came when he wanted to move her. They took their dispute to `Umar who said: “She has the right to her stipulation.” The man said, “In that case, we will certainly end the marriage.” He said, “The rights are broken off due to the stipulations.” This is the view maintained by many of the Companions, their successors and scholars including Sa`d ibn Abi Waqqas, Mu`awiyah, `Amr ibn Al-`Aas, Shurayh, `Umar ibn `Abdul-`Aziz, Tawus, Al-Awza`I, and Ishaq.

There is another opinion which says that external stipulations – those not covered by the nature of the contract itself – carry no weight and need not be met. This is the opinion of Abu Hanifah, Ash-Shafi`i, Malik, Az-Zuhri, Qatada, Al-Laith, Ath-Thauri, Ibn Al-Mundhir and has been narrated from `Ali.

The Proofs of the Invalidity of Alien Conditions

In support of their position that such conditions are neither valid nor binding, the scholars quote the Prophet’s Hadiths: “Every stipulation which is not in the Book of Allah is void even if it be one hundred stipulations.” (Al-Bukhari and Muslim) “Muslims are bound by their stipulations except for a stipulation that makes the unlawful lawful or makes the lawful unlawful.”

However, the latter version of the Hadith is weak and cannot be used as evidence. As for the hadith mentioned earlier that “The conditions you have the most duty to fulfill are those by which you have made marital relations lawful.”, they claim that this only applies to the conditions which are essential parts of the nature of the contract itself.

Response to Those Arguments

The scholars who permit such stipulations in the marriage contract have responded to the above argumentation. As for the Hadith “Every stipulations which is not in the Book of Allah…”, they say that for a woman’s Wali (guardian) to make some conditions to her advantage is something permissible and does not go against the Book of Allah.

Actually, such conditions do not violate the Book of Allah and do not make anything forbidden permissible, etc. They simply give the woman the right to annul the marriage if the condition is not met.

Also, there remains no real meaning to the Hadith “The conditions you have the most duty to fulfill…” if one says that it only applies to conditions that are already in force due to the nature of the contract anyway.

The Crux of this Difference of Opinion

This discussion boils down to the understanding of two seemingly contradictory Hadiths:

“Every stipulation which is not in the Book of Allah is void even if it be one hundred stipulations.” (Al-Bukhari and Muslim)

“The conditions you have the most duty to fulfill are those by which you have made marital relations lawful.” (Al-Bukhari and Muslim)

It seems clear from the second Hadith, along with the Fatwa of `Umar mentioned earlier, that there is a room for adding stipulations to a marriage contract.

It also seems clear from the first Hadith that there are limits on what can be stipulated. Specifically, any stipulations which go against the basic goals and principles of the marriage contract are not allowed and, if stated, null and void. Thus, the only remaining problem is understanding exactly how this principle applies in practical situations.

For those scholars who don’t accept such external stipulations at all, they consider such stipulations as having no effect at all, no binding power, and they don’t affect the validity of the underlying contract. For those who accept them, they give the woman the option to annul the marriage upon her request if the condition is violated.

Allah Almighty knows best.
Excerpted, with slight modifications, from:www.java-man.com




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