Goals of this Chapter

• Definition of some important fiqh terms including arkaan, shuroot, sahih, baatil and faasid.

• The different conditions and/or prerequisites needed for a marriage contract to be considered valid, enforceable and binding.

• In particular, the importance of the guardian (wali), witnesses (shuhood) and the dowry (mahr).

• General concepts concerning conditions or stipulations in any type of contract and the ruling regarding adding such stipulations into a marriage contract in particular.

• The ramifications and effect on the contract when certain conditions are not properly met.

Introduction

Marriage in Islam is a contract.  Thus, as in any contract in Islam, there are elements which are considered essential to its existence, called arkaan, the possibility of stipulations of different kinds, legal effects of the contract, etc.    Each of these should be understood properly in order to ensure that the marriage has been performed in the proper manner and the rightful effects of the marriage are granted to each of the participating partners.

Definition of Rukn and Shart

Rukn (plural: arkaan) can be translated as "pillar" and is an essential part of the legal reality of something.   Without it, that legal reality does not exist.

Shart (plural: shuroot) can be translated as "prerequisite" or "condition" is a requirement for the legal reality/validity of something but 1) is external to it and/or 2) does not completely void the legal reality if not found.

Az-Zuhaili writes:

"According to the Hanafis, a rukn is something upon which the existence of something else is dependent, however it is also part of that thing which is dependent on it.  A shart for them is a prerequisite upon which the existence of something else depends but it does not form a part of that other thing.

For the majority (of the scholars), a rukn is the thing upon which something and its existence rests, it cannot be in reality without it or it is something which is a must.  Their famous expression is "It is a thing by which the shari'a reality of a thing will not exist except with it."  That is the case regardless of whether it be an actual part of the thing or something separate from it.  A shart for them is something upon which another thing is dependent but which does not form part of it."  (Wahbah Az-Zuhaili, Al-Fiqh Al-Islami wa Adillatuhu (Berut: Dar Al-Fikr, 1985) vol. 7 p. 36)

The following example will demonstrate the different between the Hanafi approach and that of the rest of the schools of thought.  The actual existence of the girl that is to be wed is something external to the process of the marriage contract.   Therefore, since it is external, the Hanafis would not call it a rukn although, obviously, no marriage would actually take place without her existence.   This makes it a shart in their terminology.  In the other schools of thought, the fact that no marriage can occur without the existence of the girl getting married is sufficient to call her existence a rukn of the marriage contract even though her existence is external to the actual contract process itself.

The Arkaan of a Marriage Contract

All the scholars agree that "offer and acceptance" (Al-Ijaab wa al-qubool) is among the arkaan of a marriage.  There is a difference of opinion concerning the other arkaan as discussed below:

The Arkaan of a Marriage According to the Hanafis

Offer and acceptance are the only arkaan of the marriage contract in Hanafi fiqh due to their definition of rukn as explained above.   Furthermore, in Hanafi fiqh, the offer/acceptance can begin from either party.

The Arkaan of a Marriage According to the Jamhoor (Majority of Scholars)

1. Offer and acceptance are among the arkaan.  For most of these scholars, the offer must be from the woman's side and the acceptance from the man.

2. The two parties to the contract: the prospective husband and the guardian of the woman.

Some also count the following among the arkaan, although the majority of these scholars count them among the shuroot:

• The presence of witnesses.

• Dowry.

The Wording of the Contract

There are a variety of opinions as to exactly which phrases are valid in the transaction of the marriage contract.  Of all these opinions, it seems clear that the best of them is that any wording that makes the intent of the contract clear to all involved should be considered a valid marriage, while the best format would be that actually used by the Prophet (sas) and his companions.  Also, it is considered best if the contract is executed in spoken form.  However, due to need or necessity, it may be done through writing or signing.

Among the different possible phraseology, the very clear terms such as "I marry you" as accepted by all.  Anything which indicates a temporary nature of the contract is forbidden.  In others there is some difference of opinion such as "I present to you", "I give to you", "I sell to you", etc.

The Hanafi and Maliki Approach

This opinion says that any term which is clear by itself or by the context and in this way implies marriage would be considered valid if the witnesses and the parties understand it as such.  This supported by the following segment of along verse in which Allah mentions all of the categories of women which are halal for the Prophet (sas):

{...Wa imra'atan in wahabat nafsahaa lin Nabiy in araada an-nabiy an yastankihahaa khaalistan laka min duni al-mu'mineen...}
{...and a woman who gives herself to the Prophet if the Prophet wishes to marry her - exclusively for you and not the [rest of the] believers...}  Al-Ahzaab:50

It is also reported that the Prophet (sas) himself used the following expression in performing a marriage:

"Qad mallaktukahaa bima ma'aka min al-qur'an."
"I have put her in your possession for the Qur'an which you possess."  Al-Bukhari

The Hanbali and Shafi'iy Approach

This opinion says that the marriage is not proper unless it uses forms of the following words which are found in the Qur'an and hadith:  nikah or zawaaj.   Their response to the above evdience is that since the verse clearly applied to something given specifically to the Prophet (sas) it is not applicable here and that the actual words of the hadith are from the narrator who may not have transmitted it exactly.   Bottom line:  Marriage is a contract and, like any other contract if the intention and goal of the contract is clear to all parties, there need not be any additional restrictions on the actual words used.  On the other hand, due to the seriousness of this contract, there is no hardship in sticking to the original words used most commonly by the Prophet (sas) and his companions.

Does it Have to be in Arabic?

According to the majority of the scholars, it is not necessary for the marriage contract to be transacted in Arabic, even for those who have the ability to speak Arabic.  Those in the Hanbali school who required the use of forms of the words nikah or zawaaj also required that the contract be transacted in Arabic for this reason.

The Different Types of Shuroot (Conditions or Prerequisites)

At this point, we need to learn the definition of some general terms in Islamic fiqh which come up in many subject areas, including the one at hand.

Sahih (Sound).  A contract which fulfills all of the arkaan and the shuroot and has full effect in the law.

Baatil (Void).  A contract that has failed to fulfill specific arkaan or vital shuroot.  A contract which is baatil is the opposite of one which is sahih and has no legal effect at all.  If a marriage contract is found to be void, even if it is only discovered after consummation, the legal condition will be as if it never happened at all.  The lineage of the father will not be established and there is no waiting period ('iddah) upon the woman.  An example of this would be if a man married a woman who was married to someone else at the time.

Faasid (Defective).  This is a contract which fails to fulfill some of the shuroot, but not the arkaan.  For non-Hanafis, faasid and baatil have the same meaning.  In Hanafi fiqh, a marriage which was faasid has some legal ramifications, especially if it was consummated.

With respect to marriage, there are four different kinds of conditions which must be met:

First:  Shuroot Required for Initiating the Contract

In this category, there are conditions concerning the two who are getting married as well as the form in which the contract takes place.

Concerning the Two Getting Married

The two people must meet the qualification of legal competence, i.e, they must be adult and sane.  If they are not, the marriage will be invalid.

Secondly, the woman cannot be from those categories of women that are forbidden for a man to marry.  For example, suppose a man married a woman and later discovered that they had been breastfed by the same woman.  In this case, it is as if the marriage never took place because those two were not qualified or allowed to marry each other and the marriage becomes null and void.

Concerning the Contract

There is near complete agreement on the following conditions relating to the transaction of the marriage contract:

Note that the custom of saying "I accept" three times common in some Muslim cultures has no legal significance.  Once the first "I accept" has been uttered, everything after that is meaningless - whether positive or negative.

Adding Stipulations to the Marriage Contract

This is where one party states a stipulation binding on the other party for specific reasons or goals.  The offer/acceptance are tied to this stipulation by mention.   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'a 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 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:

Other conditions Laid Down by the Two Parties

Any condition which contradicts, compromises or nullifies the main goals and purposes of the marriage contract itself are rejected and, even if stated, are of no legal consequence.  For example conditions which state that the woman receives no dowry or that he does not have to support her or that they will not consummate the marriage are all null and void and of no effect whatsoever.

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.

Sound and Acceptable Stipulations

There are two types of sound and acceptable stipulations:

In General, Muslims Must Fulfill Their Agreements

Generally speaking, Muslims must comply with any agreements that they make.  Allah said about the believers:

{...Wa al-moofoona fi 'ahdihim idhaa 'aahadoo...}
{...And those who fulfill their pacts when they make one...}  Al-Baqara:177

{Yaa ayyuhaa alladhina aamanoo aufoo bi al-'uqood...}
{O you who believe fulfill your contracts...} Al-Ma'idah:1

The Prophet (sas) said:

"Al-muslimoona 'alaa shurootihim."
"Muslims are bound by their stipulations."  Abu Daud & Al-Hakim (sahih)

During the time of Umar ibn Al-Khattab, 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 and he said:  "She has the right to her stipulation."  The man said, "In that case, they will certainly end the marriage."  He said, "The rights are broken off due to the stipulations."  This was the view of many of the Companions, Followers and scholars including Saad ibn Abi Waqqas, Mu'awiyah, Amr ibn Al-Aas, Shuraih, Umar ibn Abdul Aziz, Tawoos, Al-Awzaa'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 was the opinion of Abu Hanifa, Ash-Shafi'i, Malik, Az-Zuhri, Qatada, Al-Laith, Ath-Thauri, Ibn Al-Mundhir and has been narrated from Ali.

The Proofs of Those Who Say that Such Stipulations are Neither Binding nor Valid

"Kullu shartin laisa fiy kitaabi Allahi fahuwa baatil wa in kaana mi'atu shartin."
"Every stipultion which is not in the book of Allah is void even if it be one hundred stipulations."  Muslim & Bukhari

They also cite the following extension to the hadith mentioned earlier about stipulations:

"Al-Muslimoon 'alaa shurootihim illa shartin ahalla haraaman au harrama halaalan."
"Muslims are bound by their stipulations except for a stipulation which makes the unlawful lawful or makes the lawful unlawful."

However, this version of the hadith with the added sentence is weak and cannot be used as evidence.  As for the hadith mentioned earlier that "The conditions which 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.  As for the hadith "Every stipulations which is not in the book of Allah...", they say that for a woman's wali 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 satisfied.

Also, there remains no real meaning to the hadith "The conditions which 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 hadith:

"Every stipulation which is not in the book of Allah is void even if it be one hundred stipulations."  Muslim & Bukhari

"The conditions which you have the most duty to fulfill are those by which you have made marital relations lawful."  Bukhari & Muslim

It seems clear from the second hadith along with the fatwa of Umar mentioned earlier that there is some 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 and not allowed and, if stated, are 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 have no effect, are not binding, and 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 he request if the condition is violated.  We only mention the woman because the man can divorce at any time with or without a particular cause and so has no need of such an option.  Notice that even in the fatwa of Umar, he didn't require the man to fulfill the condition, rather he allowed that she could end the marriage if she so demanded.

Conditions for Which there is Agreement that they are Invalid

Even those who accept these stipulations all agree that certain conditions are not allowed.  Among them are the following:

Second:  Conditions for the Soundness of a Marriage Contract

There are ten conditions (shuroot) in this category.  Some are agreed upon by virtually all the scholars while others are the subject of some disagreement.

1. The bride and groom are specifically identified and known.

2. Neither of the two contracting parties are in a state of ihraam.

3. The marriage must be with a dowry (mahr).
   It does not have to be exactly specified nor does it have to change hands, but it has to be there.  More is coming on this subject later.

4. The parties and witnesses are not bound to keep it quiet.
   It is not allowed to make attempts to keep a marriage a secret.  The universal custom of the Arabs before Islam was to have marriages very publicly where all around became aware of its existence.  Islam confirmed this practice and it is the only acceptable way of marrying.  As we have seen, the Maliki school takes this so seriously that they separate the two parties permanently.  Some other scholars said that it was a wrong practice, but didn't necessarily invalidate the marriage.

5. No party is on his/her deathbed.
   The "parties" intended here are the bride and the groom.  This is because of possible injury to the heirs because of another person becoming entitled to inheritance.

6. The presence of the guardian or representative (wali) of the woman.
   The wali is a Muslim man charged with marrying the one under his charge to a man who will be good for her.  There is no disagreement that the first wali is her natural father if he is Muslim and that the last in line is the ruler.   Between those two, there is some disagreement about the order but agreement that they come from the girl's fathers relatives - no one from her mother's side enters into the picture.  The order, according to many is:  father, paternal grandfather, son, grandson, full brother, paternal half-brother, paternal uncle.  The wali is an absolute requirement for a marriage, and any marriage done without him is null and void according to the following hadith:
   
   "Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa."
   "No marriage except with a guardian and the ruler is the guardian of she who has no guardian."  Abu Daud & others (sahih)
   
   "Ayyumaa imra'atin nakahat bi ghairi idhni waliyyihaa fa nikaahuhaa baatilun fa nikaahuhaa baatilun fa nikaahuhaa baatilun."
   "If any woman marries without the permission of her guardian, then her marriage is void, then her marriage is void, then her marriage is void."  Abu Daud & others (sahih)
   
   It is the job of the wali to marry her to the best possible husband.   He must not be guided by his desires nor by her desires.  If the person is acceptable in both his religion and his character and appropriate to her in some other way discussed by the scholars, then he must facilitate the marriage and not refuse it for his own desires or biases.  If the conditions are not right, then he must refuse the marriage, even if both the woman under his charge and the man desire it.  This is a grave trust and he must do his best to fulfill it properly and not bring harm to the woman and/or to society.  Allah said:
   
   {Yaa ayyuhaa alladhina aamanoo laa takhunoo Allaha wa ar-rasoola wa takhunoo amaanaatikum wa antum ta'lamoon.}
   {O, you who believe, do not commit treachery against Allah and against the Prophet (sas) nor betray your trusts though you know.}  Al-Anfaal:27
   
   What about the case where the wali refuses someone on a non-Islamic basis?   As was stated earlier, it is the job of the wali to act in the best interest of the woman according to the standards established by Islam.  If a qualified person asks to marry the woman and he turns him down, then he is not doing his job.  In such a case, the woman can complain to the judge or ruler and have her wali "fired" (removed).  The scholars then differ as to who becomes her new wali, the next male relative in line or the ruler.
   
   The wali must be the same religion as the woman.  A non-Muslim father cannot be the wali for his Muslim daughter.

A Rejected Opinion of the Hanafi School

In the Hanafi school of thought there is an opinion that the wali is not a requirement for the validity of the marriage.  They even claim to have an argument from Aisha, the one who narrated the hadith:

"Laa nikaaha illa bi waliyyin wa as-sultaanu waliyyu man laa waliyya lahaa."
"No marriage except with a guardian and the ruler is the guardian of she who has no guardian."  Abu Daud & others (sahih)

They say that:  "Aisha married the daughter of her brother, Hafsa bint Abdul Rahman while Abdul Rahman was gone to Sham.  When Abdul Rahman returned he was upset but he did not wish to undo what Aisha had done do he left his daughter with her groom, Al-Mundhir ibn Az-Zuhair."

Other scholars responded to their argument:  It seem from other narrations of the same incident that Aisha simply set up the arrangement but did not actually perform the marriage.  Also, it was Aisha herself who said that "Women cannot perform marriages."  In this way, she did not contradict what she herself narrated from the Prophet (sas).

Being Serious is NOT a Condition for the Soundness of a Marriage Contract

Note that marriage is not a laughing matter and is very serious.  Therefore, the mere words make the marriage happen and intention is not required.  Also, as we have seen, there is no khiyaar al-majlis (a choice to back out until the sitting is concluded and the parties part ways) in marriage as there is in sales and other contracts.   The Prophet (sas) said:

"Thalaathun jidduhunna jiddun wa hazluhunna jiddun: an-nikaahu wa at-talaaqu wa ar-ruj'atu."
"Three things which when serious are serious and when vain are serious:   marriage, divorce and returning (to one's wife after a divorce)."  Ahmad & others (sahih).

Third:  Conditions for the Execution of a Marriage Contract

Fourth:  Conditions for the Marriage Contract to be Binding

If these conditions are met, neither party has the right to anull the marriage.

1. If the marriage of an underage or insane person is done by other than the father or the grandfather, then the father or grandfather has the right to annul it.

2. That the husband is socially compatible and qualified for the woman.

3. That the dowry is at least equivalent to those similar to her.

4. That there is no defect in either spouse.  Included in this category would be the case where the woman was said to be a virgin but is then discovered to be otherwise or where either spouse is not physically capable of marital relations.

If, after being married, any of these conditions are not met, both parties (bride and groom) would have the right to annul the marriage.  The matter would be taken to a judge or one in authority.  However, this is a right or an option.  Once the parties accept the marriage with the deficiency it contains, they will after that be bound to such a marriage.

Effects of the Various Conditions on the Marriage Contract

Based on which conditions above are or are not fulfilled, the ruling concerning the validity and legal effect of the marriage contract differs among different schools of fiqh.   In the hanafi school, a contract may fall into one of five categories:   sound and binding, sound and non-binding, suspended, defective and void.  For most of the other scholars, the marriage contract will fall into one of three categories:   sound and binding, sound and non-binding or void.

The following table describes the effect of failure to meet certain conditions on the legal effect or conclusion concerning the contract itself:

Civil Marriages in Countries Which Do Not Apply the Shari'a

In the light of what has been discussed, a very important question arises for Muslims living in lands where the Shari'a is not the law of the land.  For Muslims to marry in such situations under the "auspices" of such governments will often involve serious flaws in both the execution and the legal effects of the non-Islamic marriage contract.  For example:

1. No proper wali.  Many such secular laws may not require the woman to have a wali at all or the one appointed may not be the rightful one in the Shari'a.

2. The secular law may not require two witnesses,

3. Witnesses may be required but not qualified such as non-Muslim witnesses.

4. The marriage establishes various property rights, inheritance rights etc. both during and after the marriage for which Allah sent no authority.  (Avoiding the harm of such issues while living in a non-Islamic society is a much larger issue and involves many things besides marriage.)

5. The civil marriage may cause additional marriages by the husband to be a crime punishable by a prison sentence.

Because of these and other issues, a secular marriage contract is not sufficient for two Muslims to be considered married Islamically.  In fact, they should be avoided if possible.  In any case, it is the Islamic marriage with its prerequisites and conditions which makes the two married before Allah.  Whether or not a civil marriage should also be undertaken is a case of weighing the harms and benefits involved. 

Regarding these "marriages", the following important points should be noted:

1. If such a marriage was entered into by non-Muslims who later became Muslim, they are considered married and there is not need whatsoever to have another marriage contract.

2. If they were Muslim but married in a secular manner out of extreme ignorance, it would be best for them to redo the marriage.  However, the first marriage could be considered valid and any children resulting from it would be both of their children Islamically.

3. If two Muslims marry in such a manner knowingly, for example to circumvent the objections of her wali, then the marriage is null and void and they are committing fornication.

Review Questions

1. What would be the ruling for the following case:  A man and a woman are married for ten years and then discover that they were breastfed by the same woman.

2. What is the ruling concerning a marriage contract in which the woman did not have a wali?   What was the Prophet's (sas) statement about such a marriage (2 hadith).

3. Discuss the different opinions concerning whether or not it is allowed to add stipulations to the marriage contract.  For those who allow them, what exactly is their effect and which conditions are allowed?  Which are not allowed?

4. Give definitions for the following important fiqh terms:  rukn, shart, sahih, faasid and baatil.

5. Is it necessary to have witnesses for a marriage contract?  What are some of the different opinions on this matter and what is the conclusive evidence from the sunnah?

6. What be the ruling on the following case:  A man claims that the marriage contract he just made is not valid because he was only joking when he did it?

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