Pre-requisites for a valid Marriage under Islamic Law
Name
Institutional Affiliation
Introduction
Marriage, as a universal institution, has received recognition and respect all over the world.[1] It is a social institution whose foundation and governance lie in the religious and social norms of the society as a whole. The world community has accepted the sanctity of marriage as a principle, and different populations have acted to maintain its place the moral fabric. Marriage can be polygamous or monogamous depending on the culture and preference of a particular people[2]. Monogamous marriage is a union involving one man and one wife, excluding all others. A polygamous marriage, on the other hand, refers to a union involving one husband and more than one wife. Marriages take different forms in different places, and culture, together with religion, plays a significant role in the process. Christian marriages differ from civil and Islamic marriages, as each requires a unique set of factors to go through. This paper will critically analyze the pre-requisites for a valid marriage under Islamic law.
Requirements for a valid Islamic Marriage
From an Islamic perspective, marriage is a legal and social relationship whose intention is to extend family relationships by making them stronger. The process starts from the time an individual begins the search for a potential partner.[3] What follows is an agreement towards marriage, the contact process, and concludes at the wedding ceremony. The founding laws for Islamic marriage are the Hadith and Qur’an.[4] Islamic law recognizes the value of sex, and for this reason; it advocates marriage as an institution. Religion does not believe in celibacy as a way of life, and marriage is an essential institution. According to the law, Muslims have received a command from Allah to marry. The Qur’an says, “And marry those among you who are single.”[5] The concept of marriage is a delicate affair in the Islamic world, and it holds much significance. Everything happens in the context of the law, and it plays a significant role in the way things take their course.
Marriage is essentially a contract in Islam because of the way the union takes place together with the implementation of requirements. There has never been a distinctive difference between secular and sacred marriage in Islam because every transaction and action has legal implications. For this reason, it would not be accurate to refer to marriage in Islam in a designated term like a secular contract. On the contrary, the best way to refer to marriage would be as a divine institution in the Islamic context. The main significance of marriage is that couples can provide a sense of companionship to one another.[6] They should love each other and serve the purpose of procreation. They should live in peace and tranquility according to the commandment of Allah. For an Islamic marriage to be valid, there must be a proposal, followed by an acceptance. The existence of at least two competent witnesses is an essential pre-requisite, so is a marriage gift from the bridegroom to the bride.[7]
Proposal
Islamic law demands that the process of choosing a marriage partner should be a pious one as the Prophet recommended for the potential partners to see each other before finalizing the marriage process.[8] It is unfair and unreasonable to bring two people together and expect them to relate intimately without knowing anything about each other according to the Islamic law context. The law permits the couple to look at each other in the eye critically but not lustfully.[9] The Qur’an reminds men that when they ask women to marry them, they should be able to look at them and see what prompted them to marry. However, the law does not allow the men and women to be in the same house in the name of the selection. The concept of courtship does not exist in the Islamic context, as it is a western practice.[10] The concept of dating or living together in a relationship before committing to each other does not exist in Islamic law. The element of physical relationship before marriage does not exist in Islamic law.[11]
There are some criteria for selecting a marriage partner, including beauty, wealth, character, rank, religion, and many more others as prescribed in Islamic law. According to the Qur’an, pure men are for chaste women, and pure women are for pure men.[12] The law emphasizes abstinence and sexual purity as a pre-requisite for marriage. A Muslim man can marry a woman when she possesses qualities such as wealth, rank, beauty, and religion, which determines her character. The law stresses the need to marry someone with a strong religious background and impeccable character. It has provided much freedom to men and women to get married as long as the bridegroom is a member of the Islamic religion. The process of selection is a function of a healthy balance that should exist between the freedom of choice and the review of the influence of the potential spouse. The consent of the parents is also an essential component because they need to give their blessings to the prospective couple.[13]
Acceptance
The girl in the marriage situation has all the right to make her decisions about her marriage, and the parents have no right to override or ignore her wishes. That is to say, that if she wishes to get married they cannot refuse and if she objects, then they have no right to go against that. According to the Prophet, “A woman who has been previously married has more right concerning her person than her guardian and a virgin’s consent must be asked about herself, her consent being her silence.”[14] When a Muslim girl finds a partner, the choice is subject to approval by her father or guardian by the standards of the Maliki School. The main idea behind this is to protect the interests of the virgin girl. As the Prophet stated, “the widow and the divorced woman shall not be married until she has consented and the virgin shall not be married until her consent is obtained.”[15] It is essential to note that the Prophet revoked a girl’s marriage when she complained that her father had married her against her wishes.
In terms of the guardian’s consent goes; it cannot hold if the guardian is declining to give consent under considerations that are not Islamic. In a situation like that one, the bride has the right to apply to an Islamic court and the judge will allow the marriage to go on after ascertaining that they have followed the due process. However, if that is not the case, if the girl did not seek the guardian’s consent, then the marriage becomes void and unacceptable in Islamic law.[16] The consent of the parent is an essential component of the marriage process in Islam, yet the law looks gives a provision on the extent to which it applies. It is valid if it protects the rights of the girl and the law sides with the bride if the guardians and parents subject her to unfair treatments.
Witnesses
The context of Islamic law makes it necessary to exclude illicit sex and protect the legitimacy of the offspring in a union. It recommends that the people involved in the marriage process should widely publicize it and they should never keep it a secret. Therefore, they involve two morally upright Muslim adults to act as witnesses.[17] The act of involving a third party in marriage is crucial in ensuring that the person one is interested in marrying is honest, descent and respectful. The role of the third party is to check on possible references by asking about the character of an individual, their behaviour. The person carrying out this process looks out for the best interest of the potential spouse to ensure that they marry the right person. The process of asking for references is an essential part before getting married. In the marriage context of Islamic law, the presence of two competent male witnesses with outstanding character is an essentially necessary condition. They guide the couple on how they should carry themselves out to protect the chastity of their marriage.[18]
The people who act as third parties are usually colleagues at work, friends, neighbours and family members. According to the Islamic marriage etiquette, the couple intending to get married should not be alone when meeting at any point before marriage. This rule makes the presence of a third party highly necessary because it ensures that they do not go against the Islamic law of marriage. This law, however, does not apply to first and second degree women such as mothers, aunts and sisters. The last significant component of this law is that when meeting, the two people should be business-like and not address each other casually. The importance of this is that it makes the meeting process effective. The couple gets to talk about the reasons why they want to get married and how they want to do it. Adopting an informal approach might lead to the two of them looking at each other lustfully and this will contravene the Islamic law of marriage.
Gift
The gift of marriage or dowry by the bridegroom is a symbol of expression of the groom’s appreciation to the bride. It is also recognition of his economic responsibilities as well as his readiness to take up his role of such duties in the upcoming marriage.[19] The wife has an entitlement to a gift that is her own in the marriage. The gift in this case can be immediate or may come later depending on the agreement between the couple. Either way, the marriage can never be valid without a gift, commonly referred to as mahr in Islamic law. The most essential thing to note about the mahr is that it does not have to be money. However, it can be in the form of non-material things such as teaching the bride how to read the Qur’an. According to the Qur’an, concerning the dowry, Allah commands, “And give women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[20] He adds, “Those among them (i.e., your wives) whom you enjoy give them their dowers as determined. But there is no blame on you, if after a dower is determined, you mutually agree to vary it”[21]
Sharia law demands of Muslims that the mahr should be reasonable, as there is no fixed amount in the law. It proposes that the amount of mahr given should be proportionate to the financial status of the husband and depending on the place and time. This statement implies that it would be unreasonable to apply the mahr of past years such as the 7th century to that of the 21st century and neither can the mahr in Saudi Arabia be similar to that of the United Nigeria. The financial conditions of people in different times and places differ so this determines the amount of mahr given. In spite of this difference, the principle of sharia law dictates that the mahr should not be too expensive. As such, it is not right to declare a large amount of mahr for with the intention of boasting or showing off.
There are instances where the bride’s family pressures the groom and his family into paying a large amount for mahr. They do this with the sole intention of boasting to their friends and relatives on how they married their daughter off for a big mahr.[22] On other instances, the groom declares a large amount and thinks to himself that it is just a paper commitment. Many times people talk of the declaration being insignificant, claiming no one will ever ask for the mahr and therefore there will be no need to pay. However, this is wrong because it contravenes the rules that Allah gave to his people.[23] Muslims should only commit an amount they can and what they intend to pay. The charging of a large amount and pledging a huge mahr to please other people is wrong in the face of Islamic marriage law. It is true no one will ask for a certain amount but it is essential to do the right thing. A fulfillment of these conditions creates the perfect condition for a valid marriage.
Islamic Marriage in Modern Society
Any Muslim can perform the nikah or marriage ceremony according to the Islamic law. However, for a legal contract to take place, the governments in Muslim countries authorize people to register and perform the nikah.[24] The people in charge of the registration of the nikah are referred to as the ma’dhun, or qadi. In the United States, imams of the Islamic centers or other people they have authorized to officiate the marriages. Some states in the United States and some parts of Canada require that the person performing the marriage must be a justice of the peace or a licensed clergy.[25] It is illegal for an unlicensed person to perform the marriage ceremonies in some states. The modes for carrying out these marriage ceremonies remain the same as prescribed in the Qur’an as long. The marriage remains valid as long as partners meet these conditions.[26]
In the United States and Canada, the law requires couple who plan to get marriage to get a license for a valid process. The person carrying out the marriage signs the license in the presence of two witnesses. The presiding officer sends the license to the Registrar of marriages who issues a marriage certificate.[27] The US law does not validate a marriage as legal unless it is registered and a marriage certificate issued. However, some Muslims do not follow the procedures prescribed by the law. Their argument is that in the context of an Islamic marriage, there is no necessity for paperwork.[28] They argue that they only care whether the marriage is halal on the context of the sharia law. These people do not care whether the marriages are legally recognized. However, it is essential to note that different countries have different laws regarding these types of marriages.[29]
The problem arises when people have to suffer because of unregistered marriages. Some men marry without legal papers and then leave their wives. The women remain stranded and do not know what to do; even getting a divorce in these circumstances is complicated. It is for these reasons that the UK legal system does not recognize the nikah as a valid form of marriage. The court of appeal has confirmed that the nikah is a non-marriage and people who claim to have been married in the context are only legally married if they undergo a civic marriage.[30]
Conclusion
Marriage under the Islamic law is a thorough process that must meet specific requirements for it to be accepted. It starts from the process of identifying a potential marriage partner after which a proposal takes place. The acceptance follows this and it entails many aspects such as parental consents and witness guidance. The gift forms significant part of the marriage even though there is not specific type and amount prescribed. These factors are the pre-requisites for a valid marriage in Islamic law.
References
Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010].
Blenkhorn L, Islamic Marriage Contracts In American Courts: Interpreting Mahr Agreements As Prenuptials And Their Effect On Muslim Women [S Cal L Rev 2002]
Fournier P, and Berlinerblau J, ‘Reframing Secularist Premises: Divorce Among Traditionalist Muslim And Jewish Women Within The Secular State’ [(2018] 7 Secularism and Nonreligion
Fournier P, ‘Flirting With God In Western Secular Courts: Mahr In The West’ [2009] 24 International Journal of Law, Policy and the Family
Hammer J, ‘Marriage In American Muslim Communities’ [2015] 9 Religion Compass
Khatun S, ‘The Book Of Marriage: Histories Of Muslim Women In Twentieth-Century Australia’ [2016] 29 Gender & History
Lemons K, ‘Sharia Courts And Muslim Personal Law In India: Intersecting Legal Regimes’ [2018] 52 Law & Society Review
Marriage in Islamic Law [Bilal Books 1998].
Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
‘Marriage In The Quran And Sunnah Of The Prophet (S)’ [Al-Islam.org, 2020] <https://www.al-islam.org/religion-al-islam-and-marriage/marriage-quran-and-sunnah-prophet-s> accessed 12 April 2020
Ozzano L, ‘Adjudicating Family Law In Muslim Courts; Muslim Family Law In Western Courts’ [2016] 17 Politics, Religion & Ideology
‘Prophet Muhammad’s Sermon On Marriage | Soundvision.Com’ [Soundvision.com, 2020] <https://www.soundvision.com/article/prophet-muhammads-sermon-on-marriage> accessed 12 April 2020
Quraishi A and Vogel F, “The Islamic Marriage Contract” Case Studies in Islamic Family Law.
Quraishi-Landes A, “A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law.” [2013] Feminism, Law, and Religion 173.
‘Search Results – Marriage (Page 1) – Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ [Sunnah.com, 2020] <https://sunnah.com/search/?q=marriage> accessed 12 April 2020
Siddiqui T, “Interpretation of Islamic Marriage Contracts by American Courts” [2007] 41 Family Law Quarterly 639.
‘The Chapters On Marriage – Sunan Ibn Majah – Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ (Sunnah.com, 2020) <https://sunnah.com/ibnmajah/9> accessed 12 April 2020
Vora V, ‘The Continuing Muslim Marriage Conundrum: The Law Of England And Wales On Religious Marriage And Non-Marriage In The United Kingdom’ [2020] 40 Journal of Muslim Minority Affairs
White, M. “Common-Law Marriage.” [2017].
Yahaya N, ‘Craving Bureaucracy: Marriage, Islamic Law, And Arab Petitioners In The Straits Settlements’ [2015] 105 The Muslim World
[1]White, M. “Common-Law Marriage.” [2017].
[2] Quraishi A and Vogel F, “The Islamic Marriage Contract” Case Studies in Islamic Family Law.
[4] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[5] ‘Marriage In The Quran And Sunnah Of The Prophet (S)’ [Al-Islam.org, 2020]
[6] Marriage in Islamic Law [Bilal Books 1998]
[8] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[9] Marriage in Islamic Law [Bilal Books 1998]
[10] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[11] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[12] ibid
[13] ibid
[14] Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ [Sunnah.com, 2020]
[15] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[16] Marriage in Islamic Law [Bilal Books 1998]
[17] Marriage in Islamic Law [Bilal Books 1998]
[18] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[19] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[20] ‘Prophet Muhammad’s Sermon On Marriage | Soundvision.Com’ [Soundvision.com, 2020]
[21] Marriage in Islamic Law [Bilal Books 1998]
[22]Vora V, ‘The Continuing Muslim Marriage Conundrum: The Law Of England And Wales On Religious Marriage And Non-Marriage In The United Kingdom’ [2020]
[23] Yahaya N, ‘Craving Bureaucracy: Marriage, Islamic Law, And Arab Petitioners In The Straits Settlements’ [2015] 105 The Muslim World
[24] Lemons K, ‘Sharia Courts And Muslim Personal Law In India: Intersecting Legal Regimes’ [2018] 52 Law & Society Review
[25] Fournier P, ‘Flirting With God In Western Secular Courts: Mahr In The West’ [2009] 24 International Journal of Law, Policy and the Family
[26] Hammer J, ‘Marriage In American Muslim Communities’ [2015] 9 Religion Compass
[27] Fournier P, and Berlinerblau J, ‘Reframing Secularist Premises: Divorce Among Traditionalist Muslim And Jewish Women Within The Secular State’ [(2018] 7 Secularism and Nonreligion
[28] Blenkhorn L, Islamic Marriage Contracts In American Courts: Interpreting Mahr Agreements As Prenuptials And Their Effect On Muslim Women [S Cal L Rev 2002]
[29] Marriage in Islamic Law [Bilal Books 1998]
[30] Khatun S, ‘The Book Of Marriage: Histories Of Muslim Women In Twentieth-Century Australia’ [2016] 29 Gender & History
Pre-requisites for a valid Marriage under Islamic Law
Name
Institutional Affiliation
Introduction
Marriage, as a universal institution, has received recognition and respect all over the world.[1] It is a social institution whose foundation and governance lie in the religious and social norms of the society as a whole. The world community has accepted the sanctity of marriage as a principle, and different populations have acted to maintain its place the moral fabric. Marriage can be polygamous or monogamous depending on the culture and preference of a particular people[2]. Monogamous marriage is a union involving one man and one wife, excluding all others. A polygamous marriage, on the other hand, refers to a union involving one husband and more than one wife. Marriages take different forms in different places, and culture, together with religion, plays a significant role in the process. Christian marriages differ from civil and Islamic marriages, as each requires a unique set of factors to go through. This paper will critically analyze the pre-requisites for a valid marriage under Islamic law.
Requirements for a valid Islamic Marriage
From an Islamic perspective, marriage is a legal and social relationship whose intention is to extend family relationships by making them stronger. The process starts from the time an individual begins the search for a potential partner.[3] What follows is an agreement towards marriage, the contact process, and concludes at the wedding ceremony. The founding laws for Islamic marriage are the Hadith and Qur’an.[4] Islamic law recognizes the value of sex, and for this reason; it advocates marriage as an institution. Religion does not believe in celibacy as a way of life, and marriage is an essential institution. According to the law, Muslims have received a command from Allah to marry. The Qur’an says, “And marry those among you who are single.”[5] The concept of marriage is a delicate affair in the Islamic world, and it holds much significance. Everything happens in the context of the law, and it plays a significant role in the way things take their course.
Marriage is essentially a contract in Islam because of the way the union takes place together with the implementation of requirements. There has never been a distinctive difference between secular and sacred marriage in Islam because every transaction and action has legal implications. For this reason, it would not be accurate to refer to marriage in Islam in a designated term like a secular contract. On the contrary, the best way to refer to marriage would be as a divine institution in the Islamic context. The main significance of marriage is that couples can provide a sense of companionship to one another.[6] They should love each other and serve the purpose of procreation. They should live in peace and tranquility according to the commandment of Allah. For an Islamic marriage to be valid, there must be a proposal, followed by an acceptance. The existence of at least two competent witnesses is an essential pre-requisite, so is a marriage gift from the bridegroom to the bride.[7]
Proposal
Islamic law demands that the process of choosing a marriage partner should be a pious one as the Prophet recommended for the potential partners to see each other before finalizing the marriage process.[8] It is unfair and unreasonable to bring two people together and expect them to relate intimately without knowing anything about each other according to the Islamic law context. The law permits the couple to look at each other in the eye critically but not lustfully.[9] The Qur’an reminds men that when they ask women to marry them, they should be able to look at them and see what prompted them to marry. However, the law does not allow the men and women to be in the same house in the name of the selection. The concept of courtship does not exist in the Islamic context, as it is a western practice.[10] The concept of dating or living together in a relationship before committing to each other does not exist in Islamic law. The element of physical relationship before marriage does not exist in Islamic law.[11]
There are some criteria for selecting a marriage partner, including beauty, wealth, character, rank, religion, and many more others as prescribed in Islamic law. According to the Qur’an, pure men are for chaste women, and pure women are for pure men.[12] The law emphasizes abstinence and sexual purity as a pre-requisite for marriage. A Muslim man can marry a woman when she possesses qualities such as wealth, rank, beauty, and religion, which determines her character. The law stresses the need to marry someone with a strong religious background and impeccable character. It has provided much freedom to men and women to get married as long as the bridegroom is a member of the Islamic religion. The process of selection is a function of a healthy balance that should exist between the freedom of choice and the review of the influence of the potential spouse. The consent of the parents is also an essential component because they need to give their blessings to the prospective couple.[13]
Acceptance
The girl in the marriage situation has all the right to make her decisions about her marriage, and the parents have no right to override or ignore her wishes. That is to say, that if she wishes to get married they cannot refuse and if she objects, then they have no right to go against that. According to the Prophet, “A woman who has been previously married has more right concerning her person than her guardian and a virgin’s consent must be asked about herself, her consent being her silence.”[14] When a Muslim girl finds a partner, the choice is subject to approval by her father or guardian by the standards of the Maliki School. The main idea behind this is to protect the interests of the virgin girl. As the Prophet stated, “the widow and the divorced woman shall not be married until she has consented and the virgin shall not be married until her consent is obtained.”[15] It is essential to note that the Prophet revoked a girl’s marriage when she complained that her father had married her against her wishes.
In terms of the guardian’s consent goes; it cannot hold if the guardian is declining to give consent under considerations that are not Islamic. In a situation like that one, the bride has the right to apply to an Islamic court and the judge will allow the marriage to go on after ascertaining that they have followed the due process. However, if that is not the case, if the girl did not seek the guardian’s consent, then the marriage becomes void and unacceptable in Islamic law.[16] The consent of the parent is an essential component of the marriage process in Islam, yet the law looks gives a provision on the extent to which it applies. It is valid if it protects the rights of the girl and the law sides with the bride if the guardians and parents subject her to unfair treatments.
Witnesses
The context of Islamic law makes it necessary to exclude illicit sex and protect the legitimacy of the offspring in a union. It recommends that the people involved in the marriage process should widely publicize it and they should never keep it a secret. Therefore, they involve two morally upright Muslim adults to act as witnesses.[17] The act of involving a third party in marriage is crucial in ensuring that the person one is interested in marrying is honest, descent and respectful. The role of the third party is to check on possible references by asking about the character of an individual, their behaviour. The person carrying out this process looks out for the best interest of the potential spouse to ensure that they marry the right person. The process of asking for references is an essential part before getting married. In the marriage context of Islamic law, the presence of two competent male witnesses with outstanding character is an essentially necessary condition. They guide the couple on how they should carry themselves out to protect the chastity of their marriage.[18]
The people who act as third parties are usually colleagues at work, friends, neighbours and family members. According to the Islamic marriage etiquette, the couple intending to get married should not be alone when meeting at any point before marriage. This rule makes the presence of a third party highly necessary because it ensures that they do not go against the Islamic law of marriage. This law, however, does not apply to first and second degree women such as mothers, aunts and sisters. The last significant component of this law is that when meeting, the two people should be business-like and not address each other casually. The importance of this is that it makes the meeting process effective. The couple gets to talk about the reasons why they want to get married and how they want to do it. Adopting an informal approach might lead to the two of them looking at each other lustfully and this will contravene the Islamic law of marriage.
Gift
The gift of marriage or dowry by the bridegroom is a symbol of expression of the groom’s appreciation to the bride. It is also recognition of his economic responsibilities as well as his readiness to take up his role of such duties in the upcoming marriage.[19] The wife has an entitlement to a gift that is her own in the marriage. The gift in this case can be immediate or may come later depending on the agreement between the couple. Either way, the marriage can never be valid without a gift, commonly referred to as mahr in Islamic law. The most essential thing to note about the mahr is that it does not have to be money. However, it can be in the form of non-material things such as teaching the bride how to read the Qur’an. According to the Qur’an, concerning the dowry, Allah commands, “And give women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.”[20] He adds, “Those among them (i.e., your wives) whom you enjoy give them their dowers as determined. But there is no blame on you, if after a dower is determined, you mutually agree to vary it”[21]
Sharia law demands of Muslims that the mahr should be reasonable, as there is no fixed amount in the law. It proposes that the amount of mahr given should be proportionate to the financial status of the husband and depending on the place and time. This statement implies that it would be unreasonable to apply the mahr of past years such as the 7th century to that of the 21st century and neither can the mahr in Saudi Arabia be similar to that of the United Nigeria. The financial conditions of people in different times and places differ so this determines the amount of mahr given. In spite of this difference, the principle of sharia law dictates that the mahr should not be too expensive. As such, it is not right to declare a large amount of mahr for with the intention of boasting or showing off.
There are instances where the bride’s family pressures the groom and his family into paying a large amount for mahr. They do this with the sole intention of boasting to their friends and relatives on how they married their daughter off for a big mahr.[22] On other instances, the groom declares a large amount and thinks to himself that it is just a paper commitment. Many times people talk of the declaration being insignificant, claiming no one will ever ask for the mahr and therefore there will be no need to pay. However, this is wrong because it contravenes the rules that Allah gave to his people.[23] Muslims should only commit an amount they can and what they intend to pay. The charging of a large amount and pledging a huge mahr to please other people is wrong in the face of Islamic marriage law. It is true no one will ask for a certain amount but it is essential to do the right thing. A fulfillment of these conditions creates the perfect condition for a valid marriage.
Islamic Marriage in Modern Society
Any Muslim can perform the nikah or marriage ceremony according to the Islamic law. However, for a legal contract to take place, the governments in Muslim countries authorize people to register and perform the nikah.[24] The people in charge of the registration of the nikah are referred to as the ma’dhun, or qadi. In the United States, imams of the Islamic centers or other people they have authorized to officiate the marriages. Some states in the United States and some parts of Canada require that the person performing the marriage must be a justice of the peace or a licensed clergy.[25] It is illegal for an unlicensed person to perform the marriage ceremonies in some states. The modes for carrying out these marriage ceremonies remain the same as prescribed in the Qur’an as long. The marriage remains valid as long as partners meet these conditions.[26]
In the United States and Canada, the law requires couple who plan to get marriage to get a license for a valid process. The person carrying out the marriage signs the license in the presence of two witnesses. The presiding officer sends the license to the Registrar of marriages who issues a marriage certificate.[27] The US law does not validate a marriage as legal unless it is registered and a marriage certificate issued. However, some Muslims do not follow the procedures prescribed by the law. Their argument is that in the context of an Islamic marriage, there is no necessity for paperwork.[28] They argue that they only care whether the marriage is halal on the context of the sharia law. These people do not care whether the marriages are legally recognized. However, it is essential to note that different countries have different laws regarding these types of marriages.[29]
The problem arises when people have to suffer because of unregistered marriages. Some men marry without legal papers and then leave their wives. The women remain stranded and do not know what to do; even getting a divorce in these circumstances is complicated. It is for these reasons that the UK legal system does not recognize the nikah as a valid form of marriage. The court of appeal has confirmed that the nikah is a non-marriage and people who claim to have been married in the context are only legally married if they undergo a civic marriage.[30]
Conclusion
Marriage under the Islamic law is a thorough process that must meet specific requirements for it to be accepted. It starts from the process of identifying a potential marriage partner after which a proposal takes place. The acceptance follows this and it entails many aspects such as parental consents and witness guidance. The gift forms significant part of the marriage even though there is not specific type and amount prescribed. These factors are the pre-requisites for a valid marriage in Islamic law.
References
Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010].
Blenkhorn L, Islamic Marriage Contracts In American Courts: Interpreting Mahr Agreements As Prenuptials And Their Effect On Muslim Women [S Cal L Rev 2002]
Fournier P, and Berlinerblau J, ‘Reframing Secularist Premises: Divorce Among Traditionalist Muslim And Jewish Women Within The Secular State’ [(2018] 7 Secularism and Nonreligion
Fournier P, ‘Flirting With God In Western Secular Courts: Mahr In The West’ [2009] 24 International Journal of Law, Policy and the Family
Hammer J, ‘Marriage In American Muslim Communities’ [2015] 9 Religion Compass
Khatun S, ‘The Book Of Marriage: Histories Of Muslim Women In Twentieth-Century Australia’ [2016] 29 Gender & History
Lemons K, ‘Sharia Courts And Muslim Personal Law In India: Intersecting Legal Regimes’ [2018] 52 Law & Society Review
Marriage in Islamic Law [Bilal Books 1998].
Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
‘Marriage In The Quran And Sunnah Of The Prophet (S)’ [Al-Islam.org, 2020] <https://www.al-islam.org/religion-al-islam-and-marriage/marriage-quran-and-sunnah-prophet-s> accessed 12 April 2020
Ozzano L, ‘Adjudicating Family Law In Muslim Courts; Muslim Family Law In Western Courts’ [2016] 17 Politics, Religion & Ideology
‘Prophet Muhammad’s Sermon On Marriage | Soundvision.Com’ [Soundvision.com, 2020] <https://www.soundvision.com/article/prophet-muhammads-sermon-on-marriage> accessed 12 April 2020
Quraishi A and Vogel F, “The Islamic Marriage Contract” Case Studies in Islamic Family Law.
Quraishi-Landes A, “A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law.” [2013] Feminism, Law, and Religion 173.
‘Search Results – Marriage (Page 1) – Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ [Sunnah.com, 2020] <https://sunnah.com/search/?q=marriage> accessed 12 April 2020
Siddiqui T, “Interpretation of Islamic Marriage Contracts by American Courts” [2007] 41 Family Law Quarterly 639.
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[1]White, M. “Common-Law Marriage.” [2017].
[2] Quraishi A and Vogel F, “The Islamic Marriage Contract” Case Studies in Islamic Family Law.
[4] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[5] ‘Marriage In The Quran And Sunnah Of The Prophet (S)’ [Al-Islam.org, 2020]
[6] Marriage in Islamic Law [Bilal Books 1998]
[8] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[9] Marriage in Islamic Law [Bilal Books 1998]
[10] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[11] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[12] ibid
[13] ibid
[14] Sunnah.Com – Sayings And Teachings Of Prophet Muhammad (صلى الله عليه و سلم)’ [Sunnah.com, 2020]
[15] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[16] Marriage in Islamic Law [Bilal Books 1998]
[17] Marriage in Islamic Law [Bilal Books 1998]
[18] Marriage in Islamic Law [General Organisation for Government Printing Offices 1984].
[19] Ali K, Marriage and Slavery in Early Islam [Harvard University Press 2010]
[20] ‘Prophet Muhammad’s Sermon On Marriage | Soundvision.Com’ [Soundvision.com, 2020]
[21] Marriage in Islamic Law [Bilal Books 1998]
[22]Vora V, ‘The Continuing Muslim Marriage Conundrum: The Law Of England And Wales On Religious Marriage And Non-Marriage In The United Kingdom’ [2020]
[23] Yahaya N, ‘Craving Bureaucracy: Marriage, Islamic Law, And Arab Petitioners In The Straits Settlements’ [2015] 105 The Muslim World
[24] Lemons K, ‘Sharia Courts And Muslim Personal Law In India: Intersecting Legal Regimes’ [2018] 52 Law & Society Review
[25] Fournier P, ‘Flirting With God In Western Secular Courts: Mahr In The West’ [2009] 24 International Journal of Law, Policy and the Family
[26] Hammer J, ‘Marriage In American Muslim Communities’ [2015] 9 Religion Compass
[27] Fournier P, and Berlinerblau J, ‘Reframing Secularist Premises: Divorce Among Traditionalist Muslim And Jewish Women Within The Secular State’ [(2018] 7 Secularism and Nonreligion
[28] Blenkhorn L, Islamic Marriage Contracts In American Courts: Interpreting Mahr Agreements As Prenuptials And Their Effect On Muslim Women [S Cal L Rev 2002]
[29] Marriage in Islamic Law [Bilal Books 1998]
[30] Khatun S, ‘The Book Of Marriage: Histories Of Muslim Women In Twentieth-Century Australia’ [2016] 29 Gender & History