The Marriage Contract: Its Basic Elements
All praise is due to Allah, the Creator of our world and the laws that govern it. And peace and blessings of Allah be upon His slave and final Messenger Muhammad (peace and blessings be upon him), the one sent to all of mankind, the one sent to guide people out from the darkness of shirk (polytheism), into the light of tawheed (montheism).
Know, dear reader, that Allah Most High has created things in pairs. Those pairs must get together in certain ways in order for reproduction to occur. The way for reproduction to occur among humans-males and females-is through marriage, known in Arabic as nikah. Islam urges Muslims to marry and prohibits premarital relationships. Allah Most High says in the Qur’an:[And marry those among you who are single and those who are fit among your male slaves and your female slaves; if they are needy, Allah will make them free from want out of His grace; and Allah is Ample-Giving, Knowing.](An-Nur 24:32)
Also, Allah’s Messenger (peace and blessings be upon him), in the hadith found in Al-Bukhari and Muslim, commanded young people to marry, and advised those of them who could not afford it to fast as a means of controlling their sexual desire. From an Islamic perspective, marriage is not viewed merely as a means of satisfying natural desires and passions. Its goals are much deeper than just obtaining legal sex. Allah Most High points out one of the main objectives behind marriage by saying
[And among His signs is this, that He created for you mates from among yourselves that you might live with tranquility with them, and He has put love and mercy between your hearts (hearts).] (Ar-Rum 30:21)
The marriage contract is the formal bond that turns two individuals from strangers to husband and wife. It is the most important contract that most people execute throughout their lives. Since the marriage contract has such great significance, the deen of Islam provides a number of guidelines. Before delving into the basic elements of marriage, it is worth mentioning here that marriage is a serious matter and should be dealt with seriously. It is not allowed for a man to marry and then claim he did not really mean it, or that he was joking. The Messenger of Allah (peace and blessings be upon him) said, “There are three matters in which it is not permissible to joke: marriage, divorce, and emancipation (of slaves)” (Al-Bukhari and Muslim).
The Islamic marriage contract has conditions, requirements, pillars, and optional elements. A contract must be Islamically acceptable.
Eligibility of Bride and Groom
The first of these conditions is that both the bride and groom must fulfill certain requirements. The groom must be a chaste Muslim having attained the age of puberty. He must not be related to the bride by any of the permanently prohibiting blood, milk, or marital relationships such as his sisters, paternal and maternal aunts, daughters, granddaughters, and others. He must not be prohibited from marrying the bride for any of the temporary reasons stipulated in the Qur’an and Sunnah. An example of a temporary reason is that as long as a man is married to a particular woman, all of her sisters become temporarily prohibited for him; that is, he may not marry any of them unless he divorces their sister or she dies. Others who are temporarily prohibited in marriage include a woman who is married to another man; a woman and simultaneously her niece; an adulteress or prostitute that has not sincerely repented; and others that the Islamic Shari`ah may have listed.
The requirements a bride must fulfill is that she must be a chaste Muslim, Christian, or Jew. She must not be married to another man, and must not be related to the groom by any of the permanently prohibiting blood, milk, or marital relationships, in addition to not being prohibited from marrying the groom for any of the temporary reasons as stated above.
The next required element of the marriage contract is the bride’s permission. Without her permission, the contract is either null and void, or may be invalidated by the Islamic authorities at the bride’s request. The minimum required permission may be done by either voicing her approval or through a passive expression such as remaining silent when asked about a potential husband and simply nodding her head, or making any other motion to indicate that she does not object to the marriage. The Prophet (peace and blessings be upon him) said, “A deflowered unmarried woman (i.e., widow or divorcee) may not be married without her instructions; and a virgin may not be married without her permission, and her silence indicates her consent” (Al-Bukhari and Muslim).
The Woman’s Wali
The next requirement for a valid contract is the approval of the woman’s guardian known as the wali. The Messenger of Allah (peace and blessings be upon him) said: “A marriage (contract) is not valid without a wali” (Abu Dawud, At-Tirmidhi, and others; verified to be authentic by Al-Albani). Normally, a woman’s wali is her father. If for any reason her father is unable to be her wali, her wali would then be her next closest blood relation: the grandfather, uncle, brother, son, and so on. It is not permissible for a woman to take another woman as her wali. The Prophet (peace and blessings be upon him) said: “A woman may not give another woman in marriage, nor may a woman give herself (independently) in marriage” (Ibn Majah, Al-Bayhaqi and others; verified to be authentic by Al-Albani).
If the bride does not have a Muslim blood relative as a wali, the Islamic authority, represented by the ruler or judge, would appoint a wali for her. In non-Muslim communities the local imam is the one to be appointed as the wali of a woman who has no wali. The Messenger of Allah (peace and blessings be upon him) said: “A marriage (contract) is not valid without a wali” (Ahmad and Abu Dawud; verified to be authentic by Al-Albani). The presence of the wali or a representative he has appointed is an integral element of the contract or else the contract is deemed invalid. The Prophet (peace and blessings be upon him) said, “Whichever woman marries without her wali’s permission, her marriage is void, her marriage is void, her marriage is void. If he (the husband) performs intercourse with her, the mahr (dower) becomes her right because he had access to her private parts” (Ahmad and Abu Dawud; verified to be authentic by Al-Albani).
Another condition for the validity of a marriage contract is the presence of at least two trustworthy Muslim male witnesses. The Messenger of Allah (peace and blessings be upon him) said: “A marriage is not valid without a wali and two trustworthy witnesses” (Ahmad, Ibn Hibban, and others; authentic according to Al-Albani).
The Mahr (Dower)
The next element of the marriage contract is a mandatory marriage gift from the husband to his wife. In Arabic, this gift is called mahr or sadaq. Allah Most High said, [And give the women their dowry as a free gift] (An-Nisaa’ 4:4). He also commanded regarding this by saying: [ And give them their compensation as an obligation] (An-Nisaa’ 4:24). The mahr is the sole right of the wife and no one may take any of it without her permission-not even her parents. The dower can be in the form of money, jewelry, clothing, or other material things. It can also be a non-material gift.
The Shari`ah has not specified any amount, but it should be in accordance with the husband’s financial ability and with what is reasonable for the bride in her social status. It is normally determined by agreement between the husband and the bride or her wali. A woman came to the Prophet (peace and blessings be upon him) and offered herself to him. He declined, so a man who was present with him said, “O Messenger of Allah, marry her to me.” The Prophet asked him, “Do you have anything to give her?” He said, “No.” The Prophet (peace and blessings be upon him) said, “Give her at least an iron ring.” But he still could not afford it. The Prophet (peace and blessings be upon him) then asked him, “Have you memorized any portion of the Qur’an?” He replied, “I have memorized such-and-such surahs.” The Prophet (peace and blessings be upon him) then said, “I marry her to you for the portion of the Qur’an that you have memorized.” This means that he was expected to teach her some of what he had memorized and to treat her kindly based on this memorization. All of that would be much more beneficial to the bride than lots of material gifts.
Know that the best dower is that which is light and easiest upon the husband. This is actually a sign of blessing for the bride, as the Messenger of Allah (peace and blessings be upon him) said, “Verily, a sign of blessing for a woman is that her engagement, dower, and giving birth are all made easy” (Ahmad, Al-Hakim, and others; its chain is good according to Al-Albani). `Umar ibn Al-Khattab (may Allah be pleased with him) once gave a sermon in which he said, “Do not be excessive in regard to the women’s dowers.” It is recommended to give the bride her dower immediately after executing the marriage contract. Yet it is a very common practice to divide the mahr into two portions, an advanced and postponed portion. It defeats the very purpose, which is to be a gift prior to having any intimacy with the bride.
At the time of carrying out the marriage contract, the two parties may wish to set conditions whose violation would invalidate the contract. This is acceptable as long as the conditions do not violate any Islamic principles. Prophet Muhammad (peace and blessings be upon him) said, “Every condition not according to the Book of Allah is void, even if it be a hundred conditions” (Al-Bukhari and Muslim). An example of a condition may be that a woman stipulates that she remain in a particular homeland during their marriage. The conditions are normally set by the wife’s side, because the husband can terminate the marriage by uttering the divorce.
Carrying Out the Contract
It is recommended for the person conducting the marriage ceremony to start with a sermon, khutbat al-hajah, that was reported by Ibn Mas`ud and Jabir in At-Tabarani and by Al-Bukhari in At-Tarikh. The main and actual pillars of the contract are the offering and acceptance known as ijab and qabul. They signify the mutual agreement and acceptance between the two parties to join in this marriage bond. The ijab and qabul must be stated in clear, well-defined words, in one and the same sitting, and in the presence of the witnesses. The person conducting the ceremony may help the two parties say offering and accepting words. Documenting the marriage contract is not a requirement for the contract’s validty. However, it is important to document it for future reference and to preserve the rights of the husband and wife. Once the marriage contract is executed, all rights and responsibilities for the two parties become immediately due.
We ask Allah to bless us with beneficial knowledge and cure us from the ailment of ignorance and Allah knows best!