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Wednesday, March 30, 2011

Questions on Islamic law: marriage and divorce




This post is a bit different in style from our usual writings. Here' we are attempting to convey, in a way as concise as possible, the normative rules from the Qur'an and the tradition of the Prophet Muhammad, may Allah's peace and blessings be upon him, with regards to both marriage and divorce, as per the Islamic teachings and from the Islamic sources. Any further questions on this article or related subjects can be posted in the "comments" section which appears at the end of this post.


What are the prerequisites for a Muslim marriage?

Obviously, agreement between the two parties. Forced marriages, which does occur sometimes in various communities in the world, is deemed Haraam [not allowed in Islamic law]. There exists many incidents in the days of the Prophet Muhammad wherein ladies would come to him, saying family had forced their hand into marrying, to which the Prophet would reply that choice had to be made.

In addition to the above requirement, we also have [A] Dowry {Mahr}. The dowry is an amount of money or some other valuable item that is to be given to the wife. This assures some level of security for the wife as well as the seriousness of the man. Traditions inform us that the dowry can even be symbolic, as giving clothes or teaching the bride Qur'an. Of course, this issue would have to be hammered out between the parties. [B] Ceremony: actually the most easy part, and already practiced in every human society, in which the Imam will give a sermon basically reminding the parties of their responsibilities, the wife and husband, along with two witnesses, will sign a contract [usually called 'Aqd in Muslim societies] along with witnesses, two being the minimum. The contract will show the agreement of the parties, as well as the dowry information.

What are the responsibilities the parties have to each other?

The most important one-for the man- is that of financial responsibility. The Qur'an places this squarely on the husband in the words Ar Rijaalu Qawwamoona 'alan Nisaa' ["The men are responsible for the maintainance of their ladies.." [Q 4:34].


Responsibilities of mutual support, of fidelity, and emotional security are also required. The Qur'an says " And among His wonders is this: He creates for you mates out of your own kind. So that you might incline towards them, and He engenders love and tenderness between you: in this, behold, there are messages indeed for people who think!" [Qur'an 30:21, Muhammad Asad translation]


What about Divorce?

Divorce is seen as permitted in Islam, but there has existed both within the body of Islamic texts as well as practice in tradition the tendency to preserve the marriage. God speaks of the fact that although men may find some qualities they dislike in their wives, there may exist in that very thing something good for the man [Q 4:19]. The Qur'an has also recommended counseling, taking a person from each parties family, to act as arbiters [Q 4:35].

It is well known that the husband has right to pronounce divorce, but what is not all that well known is that the wife has a right as well, especially when the husband has disappeared or has not fulfilled any of the responsibilities, or has abandoned the faith of Islam all together!

In such a case, the religious figure [Shaykh or Imam] can pronounce the marriage dissolved, the only requirement is that- just as in a marriage ceremony- witnesses are present. It's also important to have documentation to this decision, signed by witnesses, the wife, and of course the religious figure.

By no means is this post to be taken as comprehensive or encompassing all aspects of these most delicate issues. Nonetheless, we hope this has been useful.

13 comments:

jana z. said...

salam friend

ahhh, you bring back memories lol.

Grégoire said...

Hi Brother Waheed:

This seems like an asymmetric proposition, in which the man has all the responsibility and the woman none.

I think for marriage to be attractive to men, the woman ought to have some responsibility also. Bear in mind that western Muslims may find themselves in divorce court getting cleaned out and ending up with nothing, so certainly your description is no worse than the status quo. Even so, if it's the man's job to provide the money, the woman ought to have her duties laid out clearly.

Just my opinion.

Shamsuddin Waheed said...

Hi Gregoire,

It is true that within Islamic tradition the wife does have responsibilities, but it is our experience that in many situations, the man forgets his own responsibilities. Thus, this is the reason the husband's role finds emphasis in this article.

Elan said...
This comment has been removed by the author.
Grégoire said...

Hi Brother Waheed:

Thanks for your response. I realize that this blog is for a more specialized audience, and won't pretend to know which sex tends to forget his/her responsibilities in the Muslim community.

In greater North America, 80 percent of divorces are filed for by the woman (in Washington and British Columbia, the numbers are close to 90 percent, in fact).

So, among people where I live, one gender truly does fail, massively, to live up to her responsibilities, and it is the female, nearly every time.

This does not negate anything you've written, but might give some dimension to my own position.

Peace, G

Shamsuddin Waheed said...

Hi Gregoire,

I'm not sure if I understand your post right, are you saying that women are the ones who are generally responsible for the failure of their marriages?

The figures you cited..Muslims in the West are indeed having the same problems, but in my reading of the situation, it seems that the husbands are often more guilty than the wife in terms of not fulfilling responsibilities. In any case, as the saying goes "it takes two to tango."

Muslim said...

Salaams,
If a woman is separated from her non muslim husband for 4 months and then enters islam for the first time and takes shahadah, can she get married to a muslim man immediately? If not what are the conditions she must fulfill before marriage?

Shamsuddin Waheed said...

W/Salaam, Muslim:

In the circumstances you have just described, you have broken up with your husband for at least four months, then it's acceptable to re-marry at the time and place of your choosing.

The conditions for marriage have been basically highlighted in the article.

Hope this helps.

S.Waheed

Shamsuddin Waheed said...

Salaam,

I would be remiss if not adding the following link, an old article regarding polygamy, as any discussion of marriage in Islam would automatically seem to have to include this important subject. Link is below.

http://shamsuddinwaheed.blogspot.com/2008/04/polygamy-and-societal-norms.html

Grégoire said...

Hi Brother Waheed:

I guess your response is an excellent illustration of the original problem, as I understand it.

When a marriage ends, it seems to be the default position to put all the blame on the male. When hard facts are presented to suggest that the opposite is in fact true, then the default response is to excuse the female of her proven misbehavior and blame the male anyway, with the "two to tango" reference.

Back to my original point, this does not encourage men to marry. Marriage (at least in the USA) is a one-way boxcar ride to slavery and grinding poverty, with lifetime alimony and default custody to the woman, in a no-fault situation. Consider that a woman can be unfaithful in the marriage, and by default she gets everything when the male objects, and he gets to pay her lifetime alimony and child support. This is the law in the USA now.

The marriage rates in the USA are at their lowest levels, since the origin of the country. If you and others want the institution to continue, then it's important to lay the blame at the people responsible for ruining the concept of marriage. It is overwhelmingly a female problem. Your article shames men, who are usually exploited in marriage and divorce, while giving women, who are the winners, a free pass to continue doing whatever they like.

My stats come from the ABA (the divorce stats) and the US Census Bureau (marriage rates). Men aren't stupid. They are already boycotting marriage, and for good reasons.

Peace, G

Shamsuddin Waheed said...

Hi Gregoire,

I actually re-read the article to see where men "were shamed". I can understand why you would say that, especially in the latter paragraphs where divorce is mentioned. I'm sorry that part seemed to convey a "default blame on men", leaving women blameless. That's not the intent behind the statements.

It's true that in an American context, the divorcing wife will generally get custody of the children, and will receive alimony, even if she was at fault [cheating, for example]. I tend to think that American law on this issue stems from a previous history of denying all together women's rights, so the trend to go in the wife's direction is an exaggerated response to that history.

Perhaps it's appropriate to share some of the traditional approaches to this from Muslim jurisprudence, which I will do in the following comment, as I don't want to make this particular comment box overwhelmed with information.

Shamsuddin Waheed said...

Traditionally, the husbands have been given default consideration in divorce matters. In terms of custody, the custom that later became almost enshrined within Muslim jurisprudence is that the wife would get custody of the children for a few years, usually till age seven, and then it would revert to the husband.

In terms of alimony, it was generally limited. The divorced wife may end only getting alimony for a few months.

These sound harsh, and in some respects it can be said that some of the above has little [if any] support from the Qur'an, but we must admit to the culture and norms of those days, wherein a divorced woman would simply go back to her family for support, wherein the woman was already paid a dowry [ in the modern era, in Muslim societies they may be getting huge amounts of money, jewelry and clothes] that acts as an insurance policy in case of death or divorce. Thus, at least in the traditional sense, women had it made in some areas when it comes to marriage issues, but only if all the requirements of Islam [as outlined in the article] were met.

Shamsuddin Waheed said...

Hi Gregoire,

It is a sad situation that marriage is at low rates in the USA, and divorce rates very high. Generally, economic problems are cited, and in recent years internet dalliances are heavily cited, but I don't think those excuses get to the core of the issue.

The core, in my view, is that culturally, society has changed. The breakdown of even the nuclear family unit, leaving no social cohesion at all, does not encourage anyone to get married, when they can simply have non committal relationships. Marriage is the foundation for human civilization, it is from that that most other social institutions spring forth.

Even with Polygamy, although disparaged in the mainstream culture [and even disliked by some otherwise practicing and devoted Muslims], we have the same thing. Commitment in terms of finances, emotions and fidelity. In many countries it's normal for the wives in a polygamous arrangement to work with each other, and the children as well, for the improvement and betterment of the family. Working together, learning and struggling together creates bonds and understanding. Perhaps that is the over-looked principle of marriage, be it in a Muslim or Non Muslim context.

If previous statements were harsh on us Muslim men, it's because that I deal with these issues very often, and it seems to me that many men, even Muslim ones, don't understand that there are responsibilities that have to be met. Indeed, one example, admittedly only slightly related, stems from a study group I met, and the gentlemen therein were actually saying among themselves that morally, there is no point or need to pay child support if their wives/girlfriends/ childrens's mothers are already taking government support [i.e. welfare].

Life is full of jobs, of responsibilities, that we must fulfill.

I look forward to more discussion on these issues with you, my friend.

Regards,
S.Waheed