Marriage and marriage dissolution

2.1 Marriage (nikah, zawap

The main type of marriage is permanent marriage based on a civil contract conceptualized for life but with the possibility of divorce, which is different from that in pre-modern Chris­tianity.

The prelude to the regular marriage contract is the betrothal (khitba), the promise of marriage, which does not in itself constitute a marriage contract and therefore is not binding on either party. The jurists disagree on how much the man may see of the woman’s body at the betrothal. Malik allowed the face and hands to be seen only, whereas others allowed see­ing the whole body with the exception of the private parts.²³

Marriage in all its aspects is dealt with extensively in the Qur’an and therefore can be regarded as an institution rooted in the divine law.²⁴

The main features of marriage which have consequences in modern times are:

1) marriage as a civil contract and not, as in pre-modern church law, a sacrament;

2) insertion of stipulations into the contract is possible;

3) requirement of the wall, the bride’s guardian in signing the contract;

4) impediments to marriage;

5) general legal effects of marriage;

6) financial effects of marriage;²⁵

7) offspring: parentage, custody and guardianship.

2.1.1 Contract faqdj

In contrast to Christian law, a marriage contract²⁶ is not sacrament but a civil contract and ‘at once a legal, religious, economic and symbolic transaction’.²⁷ The jurists compare it in some perspectives to the contract of sale,²⁸ and some jurists such as the Shi' i al-Hilli (d. 726/1325) define it as a contract that gives the husband ownership (tamlik) over intercourse.²⁹ As a contract, marriage shows traits that indicate a similarity with a sale contract. Accordingly, the bridegroom concludes the contract with the legal guardian (wall) of the bride, i.e. the nearest male relative, normally the father or grandfather. However, the fact that the dower is not paid to the wall but to the bride herself makes marriage a distinct contract. It need not be written and must, like a sale or any other contract, be concluded through the two pillars (arkan) of offer (al-ijab) and acceptance (al-qabul). This is the only legally relevant act in concluding marriage. However, privacy (khalwa) and consummation (dukhul) are relevant for legal, mainly financial consequences in case the marriage is dissolved.³⁰ Based on a saying of the Prophet that there can be no marriage without witnesses, the jurists except the Shi' is agree that witnesses are a condition of the contract.³¹ ‘Secret marriage’ is not accepted.³² The guardians can conclude marriage contracts between minor(s),³³ in which case consumma­tion of the marriage is expected to take place after the minor(s) reach puberty. This would, according to 21st-century standards, amount to a child marriage and allow girls below nine lunar years and boys below 12 lunar years, the considered minimum ages for sexual matu­rity, to get married. A’ isha, the beloved wife of the Prophet, is said to have been married off to the Prophet at the age of six or seven, and the marriage consummated when she was nine years old.³⁴ A minor boy coming of age can use his right to repudiation (see below).

It is possible to stipulate in the contract that, for example, the woman will have the right tojudicial divorce if the husband takes a second wife or that the wife is granted certain rights, such as to work or leave the house. The husband may grant the wife the right of talaq al-tafwid, the so-called ‘delegated talaq’. In this case, the husband allows the woman to free herself of the marital bond when a certain event occurs. These stipulations help women but basically depend on the groom’s approval. Generally, marriage contracts are classified into valid (sahih), irregular (fdsid) and void (batil), the consequences of which are discussed in detail by the jurists. Only a sahih marriage is a valid and fully effective union.³⁶ Another important aspect of marriage is kafa 'a, meaning that man and woman have to be of equal matches with regard to lineage, piety, wealth and profession. It is understood as a right to be exercised by the wife and her guardian. There is consent that the guardian cannot deny a marriage of his ward if it is a marriage based on kafa 'a.³⁷ The basis for this consent is a saying of the Prophet that a woman is married for four things: her wealth, her lineage, her beauty and her piety, but later jurists also discussed other aspects. Malik permitted marriages be­tween the Arabs and the clients (mawdld), whereas Abu Hanifa ruled that a Qurayshi woman can only marry a Qurayshi man. Certain professions were despised and a woman had the right to refuse marriage to a man of such professions.³⁸

The general and unanimous position of all schools of law is that a Muslim man has the right to contract up to four marriages and that he does not require the wife’s permission to do so.

2.1.2 Marriage guardian (wall al-nikahj

The majority of jurists agree that a woman needs a marriage guardian. This is based on a tradition by A’ isha, according to which no marriage is allowed for the woman without a wall.⁴⁰ The Hanafis, however, allow a woman having reached puberty to contract her own marriage. Ibn Rushd states that the jurists disagree whether the marriage guardian is a condition of the validity of the contract. He argues that the verses and traditions quoted by those who say it is a condition as well as by those who say it is not a condition are subject to interpretation.⁴¹ The wait is the nearest male relative, normally the father or grandfather. He has to be Muslim, of male gender and mature. A woman cannot be a wall⁴ Full brothers and sons can be a woman’s marriage guardian, but Shafi' i voted against the guardianship of a son for his mother.⁴³ Failing male relatives, the judge himself has to give her in marriage. Between the jurists of the formative era (seventh to ninth centuries) and the classical age (tenth to 12th centuries), Spectorsky finds a discernible tendency on the part of Hanafi and Maliki jurists to further restrict a woman’s capacity to conclude her own contract, so that their positions on this question become virtually indistinguishable from those of the Shafi' is and Hanbalis.⁴⁴

With regard to consent, the jurists agree that the consent of a major (bdligh)⁴⁵ deflowered (thayyib) woman has to be taken into account, whereas there is discussion about the major virgin’s (bikr) and the minor deflowered woman’s consent. In particular, the virgin is consid­ered as being shy and thus her silence is taken as consent, whereas the deflowered woman is seen as able to speak out for herself, based on the Prophet’s saying: ‘The deflowered woman has a greater right over herself than her guardian (wall'), but the virgin is to be asked about herself and her silence is her permission’.⁴⁶ Jurists agree that a father can force his minor virgin daughter into marriage but he cannot force a divorced major daughter — again with some exceptions.

2.1.3 Marriage impediments (mawanf)

Marriage impediments are either permanent or temporary.⁴⁸ Permanent prohibitions which are generally agreed upon are descent, relationship by marriage and fosterage, whereas there is disagreement on zina and li'an (illegitimate sexual intercourse and imprecation, see be­low).⁴⁹ The ‘non-marriageable persons’, i.e. the nearest female relatives, are named in the Quran (4:25—9). The general rule is that any prohibited degree on grounds of kindred is also prohibited on grounds of fosterage (4:23). It is permitted to marry one’s first cousin and the half-brother’s half-sister (from another marriage), but it is forbidden to marry one’s stepmother. Temporary prohibition is based on existing marriage and 'idda (waiting period, see below), irrevocable divorce or disbelief (kufr) and status of slavery, because an unbeliever can become Muslim and a slave can be manumitted.⁵⁰ A man is not allowed to be married to more than four wives at the same time and not to two sisters at the same time. A free woman can marry a male slave but there is disagreement about the marriage of a freeman to a fe­male slave.⁵¹ The Sunni and Shi' i jurists are unanimous that no Muslim woman can marry a non-Muslim man, even among the people of the book, i.e. Christians or Jews (2:220).⁵² The rationale behind this ruling is the patriarchal concept of lineage, which would mean that children born to such a marriage would drop out of Islam and follow their father’s religion.

2.1.4 Rights (huqUq)

From every marriage rights and duties of the spouses arise, especially the permission of sexual relation and the legitimacy of the offspring resulting from this sexual relation.⁵³ Both husband and wife have a right to sexual intercourse.

2.1.5 Dower and maintenance (mahr/nafaqa)

Dower and maintenance are the financial effects of a marriage contract. There is no mat­rimonial community of goods and separation of property is one of the main characteristics of the pre-modern Islamic marriages well into modern times. It gives women a certain in­dependence in marriage as well as after marriage. However, the husband’s obligation to pay dower⁵⁶ is one of the conditions of the validity of the marriage.⁵⁷ This and his obligation to pay maintenance (nafaqa) during the whole marital life have been maintained in modern per­sonal status laws. There is no maximum limit but the minimum limit of dower is disputed.⁵⁸ A woman has the right not to engage in sexual relation before her dower is paid; it ‘becomes due by consummation (dukhul) or death’.⁵⁹ Dower is inalienable and taken for granted even if it is not expressly stated in the contract, in which case the dower of the equal (mahr al-mithl) applies. According to Sunnis and Shi' is alike, the dower may consist of anything that can be valued in money, is useful and is ritually clean.⁶⁰ Dower can be prompt (mahr muajjal) as well as deferred (mahr mu'ajjal). The latter seems to have had great practical relevance. The dower becomes payable on the date agreed upon, otherwise on divorce or death. If the marriage is dissolved by talaq before the first marital sex, the woman has the right to half of the dower, according to 2:237, if she did not initiate the break-up of the marriage.⁶¹

Maintenance (nafaqa) is the second important financial claim and the lawful right of the obedient wife under a valid marriage contract.⁶² It encompasses food, clothing, housing, toi­let necessities, medicine, doctor’s fees, bathing and servants, if the wife is of a social position which does not permit her to dispense with such services, or when she is sick. If the husband does not pay, she can go to court and file a claim for judicial divorce.⁶³ According to Ibn Rushd, the jurists debate whether maintenance is a counter-value for sexual utilization, or a compensation for the fact that she is confined (mahbUsa, lit. a prisoner⁶⁴) as in the case of a sick or an absent husband.⁶⁵ The maintenance shall be due to the wife if she places herself in the husband’s power, including sexual intercourse, and she loses maintenance when she de­nies these rights to her husband and is recalcitrant (ndshiza).⁶⁶ The majority of Islamic jurists, Sunnis and Shi' is, rule that there shall be no maintenance for the wife who goes out to work without the permission of her husband.

2.1.6 Legal effects with regard to the offspring

A central concept in this context is nasab, the legal and legitimate lineage. It is of the utmost importance to the child to be born in wedlock and thus with a nasab connecting him or her with his or her father. Marriage establishes the husband’s parentage of the offspring unless there is indisputable evidence to the contrary. It creates mutual inheritance rights (see be- low).⁶⁷ No paternity can be established for an illegitimate offspring. The minimum term of pregnancy is reckoned to be six lunar months for legitimate lineage to be established.⁶⁸ A child born after separation shall be attributed to the husband if the interval between separation and birth is one lunar year or less. However, the Malikis, especially, recognize gestation periods up to four or five years,⁶⁹ based on the concept of the ‘sleeping foetus’ (al-raqtd). According to this perception, the embryo can stop developing in the mother’s womb for a certain amount of time, thus stretching the time of pregnancy and helping to create a legal nasab for the child born considerably after the death of the husband or the divorce of the spouses.⁷⁰

The category of walad al-zina classifies a child born out of wedlock not only as illegal, but a product of a sin and a crime against God. Still today these children are stigmatized. There is no adoption in Islam but confirmation of paternity by a child’s father is possible and the doctrine of acknowledgement (iqrdr) can be used to establish legitimacy, but only when real paternity is plausible.⁷¹

The full legal rights and obligations as well as the full legal representation are with guard­ianship (wildya) and rest in the hand of the father, including guardianship of the child’s assets and marriage. Furthermore, the child has a right to upbringing and haddna is the mother’s right to personal custody, such as caring for the bodily requirements of the child, feeding and clothing the child, etc. Law schools differ with regard to the age of children who fall under haddna. It is up to around seven years for boys and for girls until they reach puberty.

All schools, Sunni and Shi' is alike, hold that the mother, whether she is living with the hus­band or separated, has the claim to the custody of her infant.⁷² However, if she remarries, she loses this right. After the mother, according to the Hanafis, the right is given to maternal relatives. The mother should foster the child if possible for two years (2:233).

Generally speaking, men are responsible for the maintenance of the family. Islamic jurists and modern Arab personal status laws are unanimous that maintenance is a right of minors who possess no property, against their father, and a right of the parents against their children who have means to provide it. Taking care of a foundling is a religious duty and the baby’s finder has the sole right to its guardianship unless he or she is unfit or a non-Muslim and a Muslim disputes that right. A foundling is considered to be a Muslim if found in a Muslim locality, or a Christian or a Jew if found by such a person in his own locality.⁷³

2.2 Forms of marriage dissolution

The right to separation is again a male prerogative and women only have restricted access to it.⁷⁴ Generally, marriage may be dissolved by:

1) the husband in three ways: repudiation (talaq), injurious assimilation (zihar) or vow of continence (qla ');

2) the spouses, either by mutual agreement (khul' or mubara'a) or imprecation (li'an);

3) judicial order of separation in a suit filed by the husband or the wife on various grounds (faskh, khiyar).

2.2.1 Repudiation ftalaqj

There is no dispute among the jurists as to the basic right of a husband to unilaterally re­pudiate his wife at will without any formalities.⁷⁵ Repudiation may be effected orally or in writing, witnesses are not necessary for its validity and no reasons have to be given. Talaq pronounced in delirium or by a lunatic is invalid; talaq of an intoxicated man is disputed and, in the case of culpable intoxication, it is regarded as valid by the majority. Talaq pronounced under pressure is valid, according to the Hanafis, but not according to the Malikis, Shafi'is and Hanbalis.⁷⁶ The Shi' is, however, insist that the pronouncement must be made orally, the precise term talaq or some form thereof must be used in the presence of two witnesses and there must be proof of a definitive intention to repudiate.

The repudiation is either revocable (raj T) or definite (ba 'in), depending on the way it is formulated. If the ‘approved’ (see below) expression is used, it is revocable, otherwise (and also if the repudiation is pronounced before consummation of the marriage) it is definite. A revocable repudiation does not dissolve the conjugal community and can be withdrawn during 'idda (see section 2.2.2 ‘Waiting period ('idda)’ below). A definite repudiation dis­solves the conjugal community. After a husband has repudiated his wife three times, the former husband and wife can only marry again after the wife has been married to another husband.

The talaq is classified as either ‘approved’ (talaq al-sunnah) or ‘disapproved’ (talaq al-bid'a, lit. innovation).⁷⁷ Talaq al-sunnah may take the form either of a single repudiation, which is revocable by the husband until the expiry of the 'idda, or of one repudiation followed by two further confirmatory repudiations in successive months. These repudiations must ideally be made during a time of ‘purity’ (tuhr), i.e. when the woman is not menstruating and in which she has had no sexual relations with her husband. Talaq al-bid 'a is the threefold utterance of repudiation in one statement or one period of purity with ‘the advantage, for the husband at least, of simplicity and finality’.⁷⁸ The triple repudiation has become the normal form and although it is considered a (bad) innovation (bid a), it is valid.⁷⁹ The Imamiyya insists upon strict adherence to the ‘approved’ forms under pain of nullity and thus manifests a desire to confine the husband’s exercise of his power to repudiate within rigidly defined limits.⁸⁰ As mentioned above, talaq can be delegated (talaq at-tafwid) taking the form of a stipulation in the marriage contract. There is also conditional talaq (ta'liq al-talaq), which is pronounced after the conclusion of the marriage and enforced when the condition occurs.⁸¹

Talaq is often translated as ‘divorce’. But as in the case of other legal terms, too, it makes sense to use the Arab terms to differentiate between the different types of marriage dissolutions. Translating talaq as divorce evokes the belief that it is compatible with mod­ern forms of gender-equal judicial divorce, which it is not. For example, the Moroccan legislator used the classical term talaq in art. 78 of the Moroccan Family Law in 2004 and defined it as ‘the dissolution of the bonds of matrimony exercised by the husband and wife, each according to his or her respective conditions’.⁸² This is an interesting (re)interpretation or cultural ‘translation’ of the classical form of repudiation as the man’s clear prerogative, which now appears to become a gender indifferent concept (‘exercised by the husband and the wife’) but still is not an equal option for man and woman (for translation, see Schneider⁸³).

2.2.2 Waiting period ( idda)

The revocable repudiation does not dissolve marriage until the waiting period is expired.⁸⁴ It lasts three menstrual periods or, in the case of pregnancy, until delivery and is defined as a period of abstinence, or a specified term during which the woman is neither neatly married nor really divorced. The purpose behind 'idda is twofold: to check whether the woman is pregnant and to provide the husband with an opportunity to take her back.⁸⁵ The husband can return to his wife (raj 'a)⁸⁶ at any time during 'idda, either expressly by word of mouth or implicitly by resuming marital relations, without the necessity of a new contract or dower and without needing the consent of the wife. Al-Quduri (d. 428/1037) says that a man can return to his wife by announcing that he is returning to her, having intercourse with her, kissing her, or gazing at or touching her with lust. It is recommended to have two men as witnesses, according to 65:2, but the jurists did not consider this as le­gally binding. According to one opinion, no witnesses are required, just as none is required for any of the other rights a husband has over his wife.⁸⁷ God’s word here is, as Spectorsky puts it, understood barely as a recommendation.⁸⁸ After the third pronouncement of talaq, the marriage bond is irrevocably dissolved and the former wife becomes hardm/forbidden to the former husband.

Two further forms of separation are zihdr⁸⁹ and dla ',⁹⁰ which date back to pre-Islamic time and can still be found today in many modern personal status laws, although without playing an important role. In zihdr the husband compares his wife to a relative within a prohibited degree of relation, e.g. his mother;⁹¹ in dla ' the husband makes an oath of sexual abstinence from the wife for four months or more.⁹² The Hanafis maintain that dla ' shall be irrevocable after the lapse of the waiting period; the Malikis, Shafi'is, Hanbalis and the Shi 'is make the dissolution of marriage subject to a pronouncement of repudiation by the husband or to a suit by the wife. It is then deemed revocable, although Malik makes return to the married status contingent on consummation.⁹³

2.2.3 Redemption ('khul¹ and mukhalaa)

Redemption⁹⁴ is a form of marriage dissolution by mutual consent in which the wife redeems herself mostly by returning the dower to the husband.⁹⁵ Khul‘ refers to Qur’an 2:183 with a metaphoric description of the spouses as vestments of each other. The dissolution is irrevoca­ble and takes effect forthwith.⁹⁶ Early Hanafis and Ibn Hanbal did not address the question of two arbiters as part of the process of khul‘ but Malik and Shafi'i said that the arbiters’ task was either to separate or to reconcile the couple. According to Spectorsky’s comparison between the formative and the classical texts, a ‘trusted man’ was newly included in classical literature whose task was to oversee the couple’s behaviour and try to reconcile the couple. The arbiters were called upon to act only after this reconciliation effort failed.⁹⁷ This process is not part of Hanafi discussion, but it is covered in Maliki, Shafi 'i and Hanbali texts.⁹⁸ Khul' including the arbiters has regained importance in modern time because in several personal status laws (Egypt 2000, Morocco 2004) it is now understood as a form of judicial separation which gives the woman the right to redemption even against the husband’s will. This is new and grants women access to initiate divorce without having to refer to one of the legal grounds (see section 2.2.4 ‘Court separation (khiyarfi al-nikah)’).

Li 'an⁹⁹ is the husband’s oath that the wife has committed adultery and that the child born as a result is not his, whereas she affirms under oath the contrary.¹⁰⁰ It gives the impression of a gender-equal act, but classical jurists, both Sunni and Shi 'is, agree that li 'an was the solution of a problem brought to the Prophet by a husband who complained that if he knew for sure that his wife was adulterous, or that her child was not his, he could not accuse her without bring­ing in four righteous male witnesses to proof her infidelity, or else he would face the penalty of false accusation (qadhf). The li 'an was the solution to this situation. In the case of li 'an the court decides. Li 'an does not seem to be of much importance in modernity.

2.24 Court separation (khiyar fi al-nikah, lit. option on marriage)

The only kind of separation which women could initiate is separation by court, for which precise reasons are stipulated by the jurists.¹⁰¹ Following Ibn Rushd, the main legal grounds for the courts to dissolve a marriage are:

1) a defect on the part of the husband or the wife;

2) failure on behalf of the husband to pay dower and maintenance;

3) absence of the husband without an acceptable excuse.

Defects are certain diseases, especially of the sex organs, as well as impotence or castration, which make sexual relations impossible. A Hanafi wife could obtain a judicial annulment of her marriage only if it could be proven that her husband was totally incapable of con­summating the marriage, and on the grounds of putative widowhood if her husband had become a missing person and 90 years had elapsed since the date of his birth.¹⁰² Women un­der Hanafi classical law thus could not easily hope for a separation.¹⁰³ The other three major Sunni imams, Malik, Shafi 'i and Ibn Hanbal grant the wife the right to apply to the court for divorce on specific grounds, the judge in such a case being asked to act on behalf of the hus­band. The reason for these regulations is to prevent any harm (darar) to the woman mentioned in connection with sections 2.2.1—2.2.3 above.¹⁰⁴ This argument has gained special impor­tance in modern times, based on Maliki and Hanbali pre-modern law. To counteract the husband’s right of polygyny, Hanbali law regarded stipulations against a second marriage as enforceable. The Maliki concept of ‘harm’ was broad enough to allow an insistent wife a judicial divorce in the event of her husband marrying again.¹⁰⁵

Generally after the end of the marriage and the expiry of the waiting period, the woman receives her dower but has no right to other payments. However, in very restricted cases, there is an indemnity payable to a divorced wife provided that no dower has been stipulated, which is called mut a.¹⁰⁶ This indemnity has gained importance in modern times, as men who abuse their prerogative to talaq and divorce a woman without her fault can be condemned by the court to pay mut'a, in the form of a monthly sum for a certain limited time.

To summarize, the divorce regulations in classical fiqh are clearly gendered. The right to repudiation is in the husband’s hands, which he can exercise at will without the woman being present or without informing her immediately. Khul' in its pre-modern version is no com­pensation for or no expression of the female’s corresponding and ‘equal’ right to divorce, as some modernists argue, because in pre-modern times she needs the husband’s consent. Darar is an option for women seeking the dissolution of marriage but it always obliges the woman to prove her claim.

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