Islamic Marriage: A Comprehensive Guide to Rights, Rituals, and Regulations
Islamic Marriage and Its Regulation
The Two Aspects of Islamic Marriage
In classical Islamic law, marriage comprises two interconnected aspects. The first involves spiritual acts with specific content and a cause-and-effect relationship. Once the first act is performed, there is an obligation to carry out the second; otherwise, it is considered punishable in the afterlife. However, from a human or civil rights perspective, these same acts bear no causal relationship. The first act doesn’t necessitate the second. These two acts, the provision of marriage conditions and the marriage celebration, are analogous to betrothal and the act of celebration in Western law.
Betrothal and Marriage Agreement
In our legal system, betrothal represents the promise of marriage. In Muslim marriage, the marriage agreement precedes the actual marriage. It sets forth the conditions governing the marital status, including matters relating to dowry (mahr), its quality, quantity, payment formula, and any provisions limiting polygamy.
Two Principles of Islamic Law
These two events coexist to satisfy two general principles of Islamic law:
- Muslim women who have reached puberty must consent to their marriage. If a woman is under the guardianship (chebr) of her father or grandfather and is no longer a virgin, she cannot be married without her consent.
- Women require the assistance of a wali (guardian) who acts on their behalf in legal matters.
Both Muslim men and women legally attain full capacity to consent to marriage upon reaching puberty, signifying physical and mental maturity. However, in Islamic law, women’s financial matters require the oversight of a guardian.
The Capacity of the Parties
In Islamic law, the capacity to marry is acquired with both physical and mental maturity at puberty. Islamic law sets a specific age (15 for men and 12 for women) as the minimum threshold for marriage. Marriage before this age is possible with the consent of the person exercising parental authority or guardianship (chebr right), even against the child’s wishes. This overrides the general principle that no one can be forced into marriage, except in the case of a virgin pubescent girl where the wali is her father or grandfather.
The Role of the Wali
The wali complements the legal status of women in the Muslim world. Their presence is a conditio sine qua non for the validity of the marriage, even if the woman has legal capacity. A marriage without a wali is invalid, even after consummation, and can only be validated by the wali or a competent religious authority (Qadi). This requirement is justified based on the legal status of women in Islamic law. While other legal systems coordinate marriage regulations with contract theory and raise the minimum age for marriage to coincide with the legal age of majority, Muslim states tend to require a higher age of majority, not for marriage itself, but for its registration.
Disabilities to Marriage
Impediments to marriage in Islamic law, making a person haram (forbidden) for another, can be absolute or relative to each individual. They are classified as permanent or temporary.
Permanent Disabilities
These primarily involve family relationships (consanguinity and affinity). Incest, for instance, has a broader scope in Islamic law, including:
- Blood kinship
- Affinity
- Milk kinship
While the crippling effect of the ban theoretically applies only to blood kinship, as it directly affects the marital relationship, milk kinship is a unique impediment. It prohibits marriage with the mother, daughters, sisters, or nieces of a woman who breastfed a child during the first two years of the child’s life. The woman cannot marry the husband of her milk mother or his descendants, although marriage with her parents and siblings is allowed. Two milk siblings are also prohibited from marrying. The wet nurse is prohibited from marrying the father or descendants of the breastfed child.
Temporary Disabilities
These include age, collateral affinity, legal continence (iddah and istibra), triple repudiation, and religious impediments.
- Collateral affinity prohibits a man from marrying the sisters, aunts, or nieces of his wife while the marriage lasts. He can marry any of these women if widowed or divorced. While a man cannot be simultaneously married to two women related by consanguinity, he can marry a woman related to his ex-wife.
- Legal continence involves two impediments:
- Iddah: Prohibits marriage for women for a specific period after the end of their marriage (3 months after divorce, 4 months and 10 days after the husband’s death).
- Istibra: A period of one to two months before remarriage if the woman has had extramarital affairs or has been violated.
- Irrevocable repudiation: Prohibits a woman from remarrying her husband who has irrevocably repudiated her. The impediment ceases if she remarries another man and the marriage is dissolved.
- Religious impediment: Muslim women cannot marry men outside their faith. Muslim men are prohibited from marrying idolaters and women whose religion is not of the book (i.e., they can marry Muslims, Christians, and Jews).
Conclusion of Marriage
Islamic marriage requires the exchange of consent and the giving of mahr (dowry) by the groom, typically agreed upon in the prior marriage agreement.
Dowry (Mahr)
The dowry is a prerequisite for marriage. Even if a marriage is void due to the dowry not being mentioned, it can be validated later, especially after consummation, by correcting the defect. The dowry is divided into two parts:
- Muqaddam (prompt): Given to the wali or the woman herself.
- Mu’akkhar (deferred): Remains in the husband’s possession until the marriage ends (death or divorce), at which point it is given to the woman.
The marriage agreement must specify the dowry’s details, including its amount, mode of payment, and the division between muqaddam and mu’akkhar. Failure to mention these details can invalidate the marriage, but it can be rectified by using the dowry of equivalence. The dowry can consist of any lawful goods.
Different Types of Dowry
- Conventional dowry: Fixed before consummation by the spouses or their representatives.
- Dowry of equivalence: Set based on the husband’s status, the woman’s qualities, or what a man would require for his sister.
- Dowry of trust: Agreed upon before marriage but determined after consummation.
- Dowry of arbitration: Determined by a third party.
- Comisioria dowry: Agreed upon by an agent arranging the marriage, potentially leading to complex issues.
Attendance of Witnesses
The presence of witnesses, along with the wali and the dowry, is essential for a valid marriage. While the wali actively participates in the marriage contract, witnesses only need to be present to observe the exchange of consent and the covenants. Their role is to ensure the marriage’s publicity and distinguish it from illegitimate unions. Two Muslim male witnesses are required. Some Sunni schools allow female witnesses, but two women alone cannot suffice. Witnesses must be of legal age, sound mind, and not deaf. While their presence is a requirement for validity, a marriage concluded without witnesses can be validated later.
In addition to witnesses, many Muslim states require marriage registration. Non-compliance can lead to an invalid or irregular marriage, resulting in civil penalties.
Statement of the Wali
The woman must be assisted by a wali for the marriage to be formally valid. The father or grandfather holds the strongest representative capacity, especially if the bride is a minor, a virgin, or has been previously married. This power is reduced if the woman has been divorced after consummation or has reached an age where marriage becomes difficult.