Myths and Realities of 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’s great for a couple to 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?

O you who believe! Fulfil (your) obligations”

al-Maa’idah 5:1

Couples need to know that there will be challenges to their relationship. Typically in the categories: of money, children, relatives, careers, and, unfortunately, the arrival of new people on the scene. To have realistic expectations in a marriag, be aware that anything can happen. Anything.

Bigger than a Tweat

In November 2019, 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. 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.

Obviously we need to discuss the myths and realities of the Muslim marriage contract. Hopefully, clearing doubts and reinforce conviction in this practice. 

Contract 101

A marriage contract is an agreement signed before or after a wedding. It provides a private and custom-made code for how the couple will conduct themselves in a marriage. It may include issues such as dispute resolution, child custody, maintenance and property division 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. Many conditions that can be stipulated in a marriage. Some may be:

  • living arrangements
  • injunction against all forms of abuse
  • amount of Mahr and when it is to be paid
  • right to education
  • agreement 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

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.

Scholarly evidences

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 (RAW).”

Ibn Qudaamah (RA)

Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: “If she stipulates that he should not take another wife, this is permissible.” 

Among other conditions that are valid in marriage is if she stipulates that he should not take another wife. If he fulfils 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.

Shaykh Saalih al-Fawzaan (RA)

MYTHS of the Muslim Marriage Contract

1. Muslim Marriage Contracts are Not Binding

This is very far from the truth. Drafted and executed properly, a Muslim marriage contract 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. The myth suggests marriage contracts are not enforceable or binding, but in reality these documents, when properly prepared, are as binding as a lease, a mortgage, or an agreement to buy a house.

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