Marriage contracts and second marriages!

Marriage contracts and second marriages

An important issue within marriage is related to the conditions within the contract. A contract is an agreement between two parties that the law will enforce. The central part of the contract is that of agreement made voluntarily between the two parties to the contract. Islamically, both the parties can insert clauses and conditions within the contract. However, some of these conditions will be valid while others will not be.

 

The three types of conditions

There are three types of conditions within the marriage contract:

1. Conditions within the contract which supports the original aims of the marriage, such as the financial support of the wife (nafaqah), obedience etc- these conditions will all be binding and mu’tabar. The conditions will act similar to the ‘exchanging of vows’ but be binding.

 

2. Conditions within the contract which go against the original aims of the marriage, such as there will be no dowry, or that the husband will not be financially responsible for the wife etc- these conditions will be void.

 

3. Conditions within the contract, which neither support the original aims of the marriage, nor go against them. These are extra conditions. These conditions usually support one or both the parties, but the shariah has not made them necessary within marriage, nor considered them as invalid and void. These are a mutual agreement between the couple regarding some of their rights and preferences. E.g. a woman marries with the condition that the man will not marry another woman while he is married to her, or that they will live with the in-laws, or that they will reside in a certain place or country. This is discussed below.

 

Note: If there is an invalid condition in the contract, the condition becomes void, but the marriage will still be valid.

 

The third type of conditions- ‘the extras’

The marriage with this type of conditions will be valid according to all, but there is a difference of opinion amongst the scholars- will they be binding or not?

 

The Hanafis, Malikis, Shafis, all say that these conditions will not be binding. However, the Malikis do say that to fulfil these conditions will be preferred and mustahab.

 

These three schools use the Hadith of Bukhari which states, ‘every condition that is not in the book of Allah is void’.

 

On the other hand, The Hanbalis say that to fulfil these conditions will be necessary and wajib. They use the verse ‘O you who believe, fulfil your pledges (promises and contracts) 5/1. They also use the Hadith of Uqbah Ibn Aamir RA, which states ‘the most worthy conditions to be fulfilled are related to marriage (Bukhari and Muslim).

 

The second wife

If a woman marries a man with the condition that he will not marry another woman whilst he is married to her, then according to the different schools, there will be different answers regarding its ruling. Will the condition be binding? Will the man have to stick to the condition and fulfil it? If he doesn’t, does the woman have ‘legal grounds’ to ask for a divorce?

 

As explained above, according to most of the schools, the man will not have to fulfil this condition, and the woman will not have a valid reason to ask for a divorce. But according to the Hanbalis, the man will have to stick to the condition and abide by it; otherwise the woman has valid ground to ask for a divorce.

 

Our times

We live in times, where many people will use the teachings of the deen when it suits them, and neglect them when they do not. The same is with regards to the serious matter of marriage… Some men get married the second time, using the deen and saying the deen allows them to get married to four wives! These very same people, are usually (not always) the ones to forget the teaching of ‘adl’ and justice between multiple wives. We see women who are still married but neglected to the extent that they live lives like divorcees and widows. These same people, give an excuse to non-Muslims to mock the teachings of our religion regarding polygamy by not following its teachings fully.

 

Keeping this all in mind, in our day and time, we should adopt the opinion and stance of the Hanbalis, to close the doors to evil and wrong. To me, this seems to be the right thing to do, to ensure the rights of the spouses are protected.

 

Note

 

  • Most of the above has been taken from the work of Molana Khalid Saifullah Rahmani
  • Usually in the UK, if there is a breach of contract then evidence is collected, and the case is prepared. Once it has been established that the contract has been breached, there is a trial in court to prove duty, breach and damage, and thereafter there is the award of damages. Most cases are solved out of court due to the stress of the case, costs and a settlement is reached.
    Social and domestic agreements are not usually legally binding; thus children cannot take their parents to court for them not giving them pocket money on time, as usually there is no intention in them to create a legal agreement. There are exceptions to social and domestic agreements at times (see Merritt v Merritt etc).
  • Although according to the three schools of fiqh, the person who does not abide by the third type of conditions, cannot be taken to court, nor can divorce be demanded on ‘legal grounds’ islamically, he/she will still be sinful, and it will be morally and ethically wrong to break such promises and conditions that were part of the contract.
  • My local imam and teacher always emphasises the need to have a marriage contract with conditions placed inside to protect both parties. He has done this with regards to all his daughters and advises us all to do the same. Both the man and woman should agree on a few points and put them in the contract; these can be with regards to where they will live, the expenditure, what will happen in case of disputes- arbitration, divorce, custody of kids, right to see them etc.
  • Some men argue how it is their ‘God-given right’ to have more than one wife. And use quotes such as “have one wife, she’ll fight with you, but have two wives and they will fight for you! Be smart…have more wives!” But it can be argued that “it is about quality and not quantity!”
  • Marrying more than one wife, is not a ‘right’, it is something permitted and permissible. Islam has allowed it to help support divorcees, widows, orphans etc. Thus polygamy becomes a social need at times. Most religious scriptures allow polygamy, even though it is seen as something absurd in the today’s times. Islam has allowed polygamy but limited it to maximum four, and has also placed the condition of ‘justice’ between all of them. The same verse that discusses marrying up to four, also states ‘if you fear that you will be unable to be just, then just one’ (3/4). In addition to this, the Quran has also states, that being totally fair with all of them is not something easy (129/4). Thus in general circumstances, the Quran has instructed to marry one and this is the best option. More than one is a concession and an option in certain circumstances.
  • In Western culture and societies, some men will have one wife but a few mistresses; where there is no commitment. If the man fulfils the rights of multiple wives, and is fair to them all then surely it’s a different scenario! Also note the woman does not have to marry anyone who is already married, unless she is fine with it.
  • Just like other contracts; read them and abide by them, or don’t sign! If a man really plans to exercise his right to marry more than one, let him put that into his marriage contract, and see if the woman agrees!
  • It’s important for scholars, and others, to discuss these things with the person’s first wife, before even thinking about going ahead with the second nikaah. Think of the impacts on the first wife and her life! Don’t just go ahead with it without taking everything into account. Scholars should take morality into account and not just the legality of the scenario.
  • Also note this article was not written by a woman but a man trying to put forward a balanced view.

  

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Tayyib HMC FInder

Munadil Islaam

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