The Marriage Contract
Importance of the Marriage Contract
The marriage (or nikah) contract is enacted between a man and woman for the purpose of enjoying each other and forming a good family. The marriage contract is the formal bond that turns two individuals from strangers to husband and wife. As a result of the marriage contract, many rights and obligations become imperative and many fruits are anticipated.
To many people, the marriage contract is the most important contract that they execute throughout their lives. Each marriage contract normally carries a lasting effect over a large number of individuals, many of them yet to be born. Since the marriage contract has such a great and solemn significance, Islam imposes a number of guidelines that it must fulfill.
No joking in Marriage
Marriage is a serious matter and should be dealt with seriously. It is not allowed for a man to marry and then claim that he did not really mean it or that he was joking. Abu Hurayrah (radi'Allahu anhu) reported that Allah's Messenger (sallallahu alayhi wasallam) said:
"There are three matters that are considered serious in both serious and non-serious talk: marriage, divorce, and returning (a wife who was divorced a non-terminal divorce)."
Fudalah Bin Ubayd (radi'Allahu) reported that Allah's Messenger (sallallahu alayhi wasallam) said:
"There are three matters in which it is not permissible to joke: marriage, divorce, and emancipation (of slaves)."
The Islamic contract has six conditions, two pillars, one obligation, and one optional element. Dropping a condition or a pillar invalidates the contract. Intentionally dropping the obligation is a sin.
To be eligibility for marriage, the bridegroom should fulfill the following requirements:
To be eligibility for marriage, the bride should fulfill the following requirements:
The Woman's Wali
A woman may not independently give herself in marriage. Her wali (guardian) should represent her in doing that. He should take her consent if she is a virgin. Otherwise, he should follow her instruction.
Abu Musa al-Ashari, Abdullah Bin Abbas, Jabir Bin Abdillah, and Abu Hurayrah (radi'Allahu anhum) reported that Allah's Messenger (sallallahu alayhi wasallam) said:
"A marriage (contract) is not valid without a wali."
Thus, the presence of the wali for the execution of the marriage contract is a condition for its validity.
Who is a Woman's Wali?
Normally, a woman's wali is her father. If, for any reason, her father is unable to be her wali, her wali then would be her next closest mahram (grandfather, son, brother, uncle, etc.). If a woman's close relatives are non-Muslims, they may not be her shar'i guardians. Allah says:
"Allah will never grant to the unbelievers a way (of authority) over the believers."
A woman may not take another woman as her wali. Abu Hurayrah (radi'Allahu anhu) reported that Allah's Messenger (sallallahu alayhi wasallam) said:
"A woman may not give another woman in marriage, nor may a woman give herself in marriage."
Abu Hurayrah added: "For, indeed, it is an adultress who gives herslef in marriage (without her wali's consent)."
If the bride does not have a Muslim blood-relative as wali, the Islamic authority, represented by the ruler or judge, would appoint a wali for her. In many non-Muslim countries, the local imam of a Muslim community carries out the common duties of an Islamic judge, and would therefore be the wali of a woman who has no wali.
A'ishah (radi'Allahu anha) reported that Allah's Messenger (sallallahu alayhi wasallam) said:
"A marriage (contract) is not valid without a wali. And the (Islamic) authority is the wali of the one who does not have a wali."
Another condition for the validity of a marriage contract is the presence of at least two truthworthy Muslim male witnesses.
A'ishah, Imran Bin Hasayn, and Abu Musa al-Ashari (radi'Allahu anhum) reported that the Prophet (sallallahu alayhi wasallam) said:
"A marriage (contract) is not valid without a wali and two truthworthy witnesses."
The witnesses should witness and heal all of the contract's details, including the permission given by the bride to the wali.
The Mahr (Dowry)
In Islam, the dowry is a mandatory marriage gift given by the husband to his wife at the wedding. In Arabic, it is called mahr or sadaq. Allah commands:
And give the women (upon marriage) their dowry as a free gift.
Commenting on this ayah, al-Qurtubi said: "This ayah indicates that the woman's sadaw is mandatory. There is a consensus on this (among the scholars), and there is no difference in this regard..."
And Allah commands:
So marry them (slave girls) with their people's permission, and give them their compensation according to what is reasonable.
Even though the mahr is an obligation on the husband, there is no prood to make it a condition for the validity of the marriage contract.
It is recommended for the person conducting the marriage ceremony to start with the khutbat ul-Hajah that was reported by Ibn Mas'id Jabir (radi'Allahu anhu).
Ijab and Qabul
Ijab and Qabul (offering and acceptance) are the main and actual pillars of the contract. They signify the mutual agreement and acceptance between the two parties to join in this marriage bond. 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 the following (or something to the same effect):
a. The Wali: "I offer you the woman under my custody (so-and-so) according to Allah's Law and His Messenger's (sallallahu alayhi wasallam) Sunnah, and for the mahr and conditions to which we have agreed."
b. The bridegroom: "I accept marrying the woman under your custory (so-and-so) according to Allah's Law and His Messenger's (sallallahu alayhi wasallam) Sunnah, and for the mahr and conditions to which wehave agreed."
Writing the Contract
Writing the marriage contract is not a requirement for the contract's validitiy. However, it is important to document it for future reference and to preserve the rights of the husband and wife.
Outcome of the Marriage Contract
Once the marriage contract is executed, all rights and responsibilities for the two spouses, including the wife's advanced mahr, become immediately due.
(The Quest for Love & Mercy - Regulations for Marriage & Wedding in Islam - Muhammad Mustafa al-Jibaly)
1. Bridegroom's eligibility
2. Bride's eligibility
3. Bridegroom's consent
4. Bride's consent or permission
5. Wali's approval
6. Presence of two witnesses
1. The offering (ijab)
2. The acceptance (qabul)
a. Must be a Muslim, Christian, or Jewish female
b. Should be chaste
c. Should be sane
d. May not be worried or still in 'iddah from another man
e. May not be related to the groom by a permanently prohibting blood, milk, or marital relationship.
f. May not be related to the groom by a temporarily prohibiting matertial relationship
g. Must perform the contract willfully and not compulsion.
a. Must be a Muslim male
b. Should be chaste
c. Should be sane
d. Should have attained puberty
e. May not be related to the bride by a permanently prohibting blood, milk, or marital relationship.
f. May not be related to the bride by a temporairly prohibiting marital relationship.
g. Must perform the contract willfully and not by compulsion.