MM: some masaa-il of marriage

 Introduction

The institution of marriage is important for social cohesion, a fact almost universally accepted. It's role in Islam on a spiritual level is given in many Quranic verses and statements of the Prophet (Sall Allahu 'alayhi wa sallam), one of which is the famous quote "marriage is half of one's religion" ( At-Tirmidhee 3096). This subject often generates frequently asked questions (FAQs)(ft.1), so, for public benefit, they shall be addressed below.

(#1) Are there any Islamic texts which summarize the functions of the marriage relationship?

 A number of Islamic texts provide us with information on marriage. The Qur'an (Q 4:1) asserts that God created man and woman, the ideal relationship generating love, mercy, and overall satisfaction in life (Q 30:21). Similarly, it beautifully asserts that men and women are created to function as "clothing" (libaas) for each other ( Q 2:187), understood for mental, emotional, physical and indeed spiritual support. While the above texts can be seen in an emotional context, it also speaks on the importance of justice (Q 4:3) within the relationship. Admittedly, the latter quote is in the context of men vis-a-vis women (in the sense of maintaining the rights of women, not subjecting them to abuse), yet it can reasonably be said to go both ways, if we factor in Q 9:71, which asserts that both genders are "allies" of each other in terms of their spirituality and communal obligations, that such awareness and mutual assistance generates rewards from Allah in paradise (9:72).  

The Qur'an has placed this institution as something which brings forth social protections for the vulnerable as well (Q 4:3, 24:31, among other places).

(#2) How to find a suitable partner?

This is a difficult question, in light of societal and cultural expectations, which of course vary from place to place and time to time. While in the Muslim world there is family involvement (even to the extent of "arranged marriages"), for some, especially in Western environments, this could be untenable. The last two decades has seen the emergence of online dating as something that is now widely acceptable, however that can also be dangerous. 

In short, since the texts do not give us a step-by-step methodology, whatever halal (lawful) options available in our unique circumstances should be employed. Admittedly, we all have our differing comfort levels.

(#3) Can marriage occur outside of one's culture?

There are no restrictions on interracial/intercultural marriages present in the Qur'an and Sunnah. It is true that many scholars assert that a condition of marriage is comparable status (known by the technical term Kafaa'ah), but at the end of the day even that is more of some advice, rather than a ruling from the Islamic texts.

(#4) The role of Wali, and can a woman marry without his consent?

The Wali or Wakeel functions as a guardian, looking out for the best interests of the woman. Usually it is the father, brother or some other male relative, who will look for a spouse for the woman, to limit mistakes. Almost all societies-regardless of culture and religion- had this concept at some level.

Three of the four Sunni jurisprudential schools assert that the wali's consent is needed in order for the woman to get married. The Hanafi school argues that if the woman is mature and intelligent (Baalighah & Raashidah), there is no need for a wali's presence or consent. In practice, there is also a bit of a relaxed attitude on this point when the woman is a widow, divorcee, with life experiences, because it is expected that she knows what she wants and is comfortable with things. 

It is the Hanafi viewpoint which makes the most sense to this writer in a Western context, but I can also see the logic of the majority, when we consider that traditionally females marry young, without life experiences and particular expectations, as well as being more prone to misguidance and emotional manipulation. 

(#5) Should divorce be the immediate response to problems?

While divorce is legal in Islam, it should not be the immediate reply to relationship issues. Indeed, the Qur'an itself asserts that efforts are to be made- with an arbiter from each side- to solve the issues (Q 4:35). Emotions play a great hand in relationships of this nature, which is why expressions of talaq (divorce) are considered invalid when given during a woman's menstruation period(ft.#2)

(#6) Can a woman initiate divorce in Islam?

Within certain limits a woman can set forth a request for divorce, and-in summary- legitimate reasons include abandonment of the religion, outright abuse, gross neglect. The process of khul' would take place, in which a woman simply returns the dowry given to her husband. There is also, of course, divorce by mutual agreement.

(#7) Does a man have a veto power insofar as divorce?

The husband has more authority insofar as issues of divorce are concerned. Thus, it is relatively easy for a man to initiate divorce and is not necessarily obligated to grant divorce. While it can be argued this is patriarchy in action, I would say that it is a means to limit destruction and chaos based on emotion. 

Undoubtedly emotional mistakes can be made by both genders; however, men are not prone to the same sort of emotional output (and the consequences thereof) women experience. 

Moreover, it cannot be ignored that the Qur'an puts financial support in the field of the man, and that as a consequence exercise more authority than women. (Q 4:34). Under those circumstances, it would be natural for man to have a sort of (limited) veto power. Of course, in situations where the man is unreasonable, the woman can go to the Qadi (judge, divorce court in Muslim nation) or relevant body to, in a sense, force a divorce, however that would have to be for extreme circumstances. 

(#8) What does reconciliation look like?

Quite simply, even if a couple agree on a divorce, it can be revoked anytime within 4 months of its pronouncement by reuniting (jimaa').  There is a recognition that relationship dynamics are often fluid, emotions give way to intelligence and vice-versa. While I don't intend to go into much detail here (and there are details in the Qur'an itself), the short end of it is that there is more room for reconciliation than what is often believed. 

(#9) Are divorce decrees issued by non-Muslim courts valid?

This is a very complex question, made even more complicated by the fact that for many Muslim nations, a divorce decree from a non-Muslim country is not even considered, causing significant legal confusion for all involved parties(ft.3). 

Our view, in light of the fact that Imams and mosques in the West have no authority to impose decisions, nor ability to investigate properly the claims made by disputing couples, is that the court, in non-Muslim nations, with legal mechanisms, signed documents in the presence of witnesses, etc. overall fulfills the requirements given within the Islamic tradition. Of course, this may not always be the case, keeping in mind that the Islamic system has built-in devices meant to encourage reconciliation and stability.

(#10) Dowry

The dowry (mahr) is whatever is agreed to by the parties. It can even be symbolic. 

(#11) Wedding ceremony (Nikaah).

The normative fashion is that a minimum of two witnesses are required, a ceremony in which the parties are reminded of their responsibilities, and a clear acceptance of those responsibilities.  The Hanbali school has within it a view that even witnesses are not required, only publicizing the relationship is required (i'laan in technical jargon).

In our view, the normative fashion for nikaah is best, as it has more clarity and removes ambiguity. The cultural aspects of weddings vary from place to community, and while there are obvious financial difficulties in those, the religious aspects are very easy, and it is important to keep to the Prophetic guidance to make marriage easy.

Footnotes

(1) The term Masaa-il (sing, Mas-alah) is used for questions requiring an Islamic reply. Often books of Fiqh are replete with this FAQs format.

(2) The modern world tends to ignore and downplay the role of emotions, particularly in women, leading to unnecessary destruction of relationships. A Stanford Medicine Magazine article articulates very well that the minds of males and females have signifigant differences, for which see How men's and women's brains are different | Stanford Medicine

(3) A common situation is when a woman divorced in the US Legal system wants to either remarry or in some way totally break herself from the previous life, facing difficulties in her country of origin.