Social System of Islam 30 – Marriage Laws In Islam 4 Marriage Contract

share this pageShare Page
Jamal Badawi

Channel: Jamal Badawi

Series:

Topics: Marriage

Episode Notes

Episode Transcript

© No part of this transcript may be copied or referenced or transmitted in any way whatsoever. Transcripts are auto-generated and thus will be be inaccurate. We are working on a system to allow volunteers to edit transcripts in a controlled system.


00:00:41--> 00:01:21

In the name of Ghazi but never since the Merciful, the creator and the Sustainer of the universe, peace and blessings upon his servant and messenger Muhammad forever. I mean, I bear witness that there's no God worthy of worship except the one true God. And I bear witness that Muhammad is the messenger and servant of God is my fashion I greet you with a greeting that has been used by all of the prophets problem prophet Abraham's rich Prophet Muhammad, peace and blessings be upon them all the universal greetings of peace Assalamu alaikum, which means peace be unto you. I'm your host, Ahmed Rashid. Today we have our 30th program in our series dealing with the social system in Islam.

00:01:21--> 00:01:31

We'll be continuing with our discussion of marriage in Islam. I have joining me on the program as usual. Dr. Jamal Badawi of St. Mary's University, brother, Jamal Assalamu alaikum money.

00:01:33--> 00:01:39

Could I ask you to take a few moments just to summarize the main points that we talked about in our program last week? Sure.

00:01:40--> 00:01:45

Last time, we just continued with our discussion of the guardianship and marriage.

00:01:46--> 00:01:55

We talked secondly, on the marriage of minors, indicated the various conditions attached to it, in case it's resorted to or need be.

00:01:56--> 00:02:02

The third was the question of freedom of choice on the part of both husband to be and wife to be,

00:02:04--> 00:02:11

regardless as to whether she was married before or virgin girl, that always Islam requires that she should

00:02:12--> 00:02:15

approve of the marriage that cannot be forced on her.

00:02:16--> 00:02:19

Most of the program dealt with the question of

00:02:21--> 00:02:56

marriage gifts. And we try to explain at the beginning, in what sense the marriage gift in Islam is different from the typical term given an English as dour or dowry and the concept of doubt in the past that Islam gave it a totally new concept, which make it according to the Quran a gift rather than a purchase price as in previous concepts. And we indicated that this marriage or marriage gift is an absolute and complete right for the wife to be or the bride. Nobody has any claim on it. Even though she is not

00:02:57--> 00:03:28

forbidden from using part of it to prepare for her household or her own clothing, even though that's the responsibility of the husband in fact, and finally indicated that there is no minimum or maximum of marriage gifts in order to facilitate marriage and encourage all concerned to observe chastity. But in the meantime, without putting any upper ceiling. In this way, you find that the static rules would be quite flexible and adaptable to a variety of situations, places and times.

00:03:29--> 00:03:37

Now, what about the situations where the amount of the marriage gift to the dowry is not specified at the time of the marriage? Would that

00:03:38--> 00:03:58

cause the marriage contract to be invalidated? No, not necessarily. In fact, many jurists even say that the specification, or even the marriage gift itself, even though it's desirable, and the Quran speaks of it, it is not itself a prerequisite for the validity of marriage itself.

00:03:59--> 00:04:01

However, it's

00:04:02--> 00:04:29

for precautions and just avoid any squabble or difference in case there's any problem. It is better to specify the marriage or the the marriage gift in the marriage contract. But if it's not specified, there's no problem with it. In fact, even when we say contracts from the purely academic standpoint, it is better to be in writing but even if it's not written and there are two witnesses, it is still regarded as a a contract.

00:04:31--> 00:04:38

However, if the amount of marriage gift is not specified in the contract,

00:04:39--> 00:05:00

and there is any difference of opinion that may arise in the future, then there is a concept called marriage. That is the customary or equivalent kind of marriage gift. So if there is any difference, a judge, for example, could say all right, the average or customary marriage gift for a woman of that sociopath.

00:05:00--> 00:05:09

Political or socio economic status usually is X number of dollars or whatever. And that would be binding in case there's any litigation on this.

00:05:11--> 00:05:32

But the problem sometimes could be more accurate. In case there is divorce, let's say, immediately after consummation of marriage or something, if some differences may arise, that's where you have to resort to the equivalent or customary gift if it's not specified. So it's always better to have specification to avoid

00:05:34--> 00:05:35

disputes on that.

00:05:36--> 00:05:47

Now, you've indicated that it's not necessary for the amount to be specified. What about the situation where the amount of specified but the full amount is not paid? before the marriage contract takes effect? Is that

00:05:48--> 00:05:49

would that

00:05:50--> 00:05:59

invalidate the marriage? No, it doesn't invalidate it either. And this is one beautiful thing about the flexibility of Islamic law. And this is not to say that

00:06:01--> 00:06:14

the marriage gifts agreed to could be paid on at the time of, you know, negotiating or signing the contract. For example, if let's say $2,000, and they're all paid immediately.

00:06:15--> 00:06:19

They could all be delayed. That's called deferred or margin.

00:06:20--> 00:06:35

That is the bridegroom say, right, I agree to give you $2,000 as marriage gift, but just give me time at a later time would be paid. That's also possible even after marriage is consummated. that's acceptable.

00:06:36--> 00:06:50

Or, as it is quite common in many Muslim countries, also, there could be a specification of a part of the gifts to be paid immediately, and apart to be delayed, that's called margin and margin both. For example, say, right,

00:06:52--> 00:07:37

I accept to give you the $2,000 as a marriage gift, I pay 1000. Now, and a delayed or deferred portion. At a later time, any of these arrangements would be acceptable, even though within the spirit of Islamic law, it is preferable to have at least something before marriage is consummated, or at the time of, you know, signing the contract because as was indicated before, the marriage gift is a symbol of affection of commitment ties. So it's always better even if you want to defer most of it, for some reason or the other to have something at least offered in the beginning. But now, from a strict legal point of view, when most women does the dowry become due to the to the to the wife,

00:07:38--> 00:07:48

well, there could be three basic foundations on the basis of which the the amount of marriage gift becomes due, legally.

00:07:49--> 00:08:04

One is the actual consummation of marriage. In other words, they have already consummated their marriages in this case, they that the full amount becomes due or whatever is remaining COVID. In case part of it was paid previously.

00:08:05--> 00:08:19

A second case is the deaths of either party, that is the death of the bride or bridegroom before even marriage is consummated. That would make the gift also geo.

00:08:21--> 00:08:40

There is a third case, however, which is intended, basically for the protection of the woman really. And that is they call the whole fuck me. That is the case where after signing the contract, and before marriage is officially consummated, like you know when they go together in their new household.

00:08:41--> 00:08:48

If in that spirit, after the contract, the bride and bridegroom are,

00:08:49--> 00:08:59

are met together in a complete privacy like for example, an apartment where they are totally free. And where there is no other person and there is no other barriers

00:09:00--> 00:09:07

that may prevent possible physical contact, such as, for example, it's not in the last month of fasting or anything of that sort.

00:09:08--> 00:09:13

Even though nothing might have not happened, nothing might have happened.

00:09:14--> 00:09:17

As a precaution, this would be presumed

00:09:19--> 00:09:19

similar

00:09:20--> 00:09:31

or analogous to the actual consummation of marriage. Like I said, even if nothing happened. The reason being is that if they are in that privacy and something happened in people are embarrassed to say,

00:09:33--> 00:09:39

and then he divorces her, and then she might get pregnant, what would become of the child

00:09:41--> 00:09:59

so as to protect the woman in that case, it will be presumed, as if it's a consummated marriage and she would be entitled to get the full amount even if you happen to divorce her before actually consuming consummating the marriage. So in all of these cases,

00:10:00--> 00:10:04

The amount becomes 42. Now what about the

00:10:05--> 00:10:15

the situation where perhaps a divorce takes place before the marriage is consummated with the wife in this instance 70 claim on the dowry? You'd be surprised?

00:10:16--> 00:10:17

Yes.

00:10:18--> 00:10:26

This is something right. Yeah. It's an action. In effect, if you look closely into the marriage laws in Islam, you'll find that

00:10:27--> 00:10:44

it's a lot more generous, actually, to the female, not because of any bias for the female, but in consideration of their particular needs, and in order to discourage any unscrupulous person from trying to exploit them, and that

00:10:45--> 00:10:47

she would be infected but not for the whole

00:10:48--> 00:10:50

dollar or the marriage gift

00:10:51--> 00:11:13

should be entitled to half of that. And this is documented in the Quran in chapter two, particularly verses 236 and 237. That it says that if you divorce women, before you touch them as a symbol of non consummating marriage, then you should pay them half of the agreed amount, even though nothing had happened. So she would be in touch with that.

00:11:14--> 00:11:19

But in some cases, going back to one of your earlier questions, suppose

00:11:20--> 00:11:27

at the time of marriage, there was no specification of the amount of marriage gift, it wasn't written or agreed to.

00:11:28--> 00:11:45

And then the bridegroom divorced the bride before consummating the marriage. What kind of have you know, because there is no specification. In this case, also, the Quran deals with that situation, and says that you should provide them with

00:11:46--> 00:12:04

what is called not to give them something, consolation type of goods, even though nothing was mentioned. Still, some kind of consolation gifts should be given to the life even though there was no consummation of the marriage provided. Of course, that came after the actual signing of the contract or actual

00:12:05--> 00:12:41

commitment for marriage. There are some cases rare cases, however, where the marriage contract is broken or nullified because of deception on either party like discovery of hidden information or things that were false that were not true. Or some similar reasons, in which case, she would not be entitled to the matter. But in the case, in the previous normal cases, she gets half of it. Now, in addition to the mention of the marriage gift is permissible in the

00:12:42--> 00:12:51

wedding contracts to mention other kinds of conditions and requirements, when any condition which is lawful and legitimate,

00:12:53--> 00:12:56

could be added to the marriage contract. This is one

00:12:57--> 00:13:42

position in Islamic jurisprudence. And the evidence given to that is that in the Quran in chapter five, for example, in the very beginning, it says yeah, you have Lavina I'm an alpha widowhood, oh, you believe fulfill your contract. And since we said before that marriage is basically a contract it is separate seven or seven sacred, whichever way you put, it is basically set a contract and any commitment or any mutually agreed provision should be respected and should be implemented. The second thing is that Prophet Muhammad peace be upon him was narrated as saying in Bukhari and Muslim, that the most important condition that you should really be careful in fulfilling are the

00:13:42--> 00:13:55

conditions that make nuptial relationship lawful to default to marriage that's any condition should be respected, but more so even conditions that pertains to marital relationships.

00:13:57--> 00:13:58

This is one position.

00:13:59--> 00:14:00

The only

00:14:01--> 00:14:02

restriction

00:14:03--> 00:14:25

on any condition to be included in the contract is that there should be no condition which make anything that God made lawful unlawful or thing that makes anything unlawful, lawful. In other words, anything that violates the teaching of a law or the provisions of Islamic law would not be an acceptable type of condition. For example,

00:14:26--> 00:14:28

if the wife says,

00:14:29--> 00:14:33

as a condition to marry you, you must divorce your present life.

00:14:34--> 00:14:54

In fact, there is a saying of the Prophet narrated in Bukhari Muslim and Ahmed, in which he says it is not lawful for a woman to get married at the expense of divorcing another one. So this condition from the Islamic point of view would be invalid it's it's not an acceptable condition. And the Prophet actually said it clearly and one saying he said

00:14:56--> 00:14:59

Muslims should be held

00:15:00--> 00:15:18

According to their own condition, the mutually agreed conditions except a condition which makes an offer things are lawful or unlawful things not. So, any of those conditions, which are acceptable and beneficial to either or both parties may be included in the contract Yes, you could.

00:15:19--> 00:15:31

Now, whatever the situation where the bride wishes to add other lawful conditions such as commitment by the by bridegroom, for example, not to move from a given province or a given area

00:15:33--> 00:15:35

or to continue residence in a specific location

00:15:37--> 00:15:53

or these kinds of conditions valid when you get into a case where it's not exactly a question of law for an unlawful one, the Muslim jurist have two opinions on the type of condition for example, that you said

00:15:54--> 00:16:15

some of them that say that this condition really is not valid, why because it forbids the person from doing things which is local and they use this previous saying, I quoted the property that you cannot consider a condition like that as a valid condition. And they say for example, if the bride says no, you cannot move from Nova Scotia

00:16:16--> 00:16:36

even if he has to move because of job requirement or whatever they say this condition constitutes a restriction or making unlawful something which is lawful that that is traveling or moving. So, some of them say that that's not appropriate. This includes for example, like the chef right and Hannah fight, jurist,

00:16:37--> 00:16:49

there are other jurists like Hanbury jurist, and many others, like I was I, they said that this condition could still be valid and enforceable, so long as both of them agreed to.

00:16:51--> 00:17:13

They say a condition like that is not really making things which are lawful and unlawful. I mean, the condition does not mean that it is unlawful to travel. But It simply says that both parties accepted to restrict their behaviors in accordance with their agreement, which means that if they bribed if the bridegroom says, All right, I accept

00:17:14--> 00:17:20

that, okay, as a precondition of marriage, that I stay in my particular province or town.

00:17:21--> 00:17:33

And if he accepted that, he simply accepted voluntary, to restrict his action in the future. So they said the condition could be better. So there are both opinions and this

00:17:35--> 00:18:13

for now, in addition to the minimum legal requirements for marriage, either other acts which are deemed commendable or desirable, from a Islamic point of view, oh, yes, even though this act may not necessarily be an absolute requirement for the validity of marriage. But when the marriage proceedings start, it is better to have some kind of, quote unquote benediction. That is the person officiating the marriage, for example, would start off by praising God and giving thanks to him, invoking his blessing on the prophet and on those who are present.

00:18:14--> 00:18:19

And then it is desirable also to have a brief

00:18:20--> 00:18:33

presentation about marriage in Islam, perhaps quoting a few verses from the Quran, explaining the purpose of marriage and the duties of both husband and wife, which will provide some kind of advice to them on the basis of divine

00:18:35--> 00:18:35

injunctions.

00:18:37--> 00:19:08

And having made this kind of introduction, he can then go on through the main process that was described in a previous program, that is the offer and acceptance for example, the agent or the Guardian, on behalf of the the bride would be sitting face to face with the bridegroom or his agent, with the two witnesses, seated in such a way that they can listen to both. And then they have the same statement. Like we mentioned before, for example, I give you

00:19:09--> 00:19:22

my daughter swan song, according to the book of God and the path of the Prophet and he say I accept that repeating the same kind of things, that two witnesses then would be attesting to what is going on.

00:19:25--> 00:19:36

If the contract is put into writing, which is better, in fact, for protection, even though it's not an absolute requirement, then the signatures of both parties or their agents, of course,

00:19:38--> 00:19:42

would be included, as well as the signature of both witnesses.

00:19:43--> 00:19:51

After the contract is signed, the person officiating the marriage might, again pray for the blessing of

00:19:52--> 00:19:54

both parties and

00:19:56--> 00:19:59

their futures offspring. In fact, according to

00:20:00--> 00:20:12

Saying of the prophet in an essay that determined to be used to congratulate barakallahu li walakum wa barakaatuh, which is basically like a mega blessing be upon you, as well as

00:20:14--> 00:20:21

the other thing, which again, is highly desirable, to the point that some jurists even say it is a must.

00:20:22--> 00:21:05

But it's at least very highly desirable, is to announce and advertise the marriage, it's not like having the two parties involved, and the two witnesses, and that's it. That's not regarded as appropriate. Actually, it says a number of purposes to announce marriage. First of all, when people are sitting together, the two parties, the bride, bride, groom and the bride. So people would not say anything else about them, because now they know that their husband and wife so they may no doubt about their integrity, it also makes other people share in the joy of marriage and establishing the new family unit. And that's why you find that the Prophet, Prophet Muhammad peace be upon him as

00:21:05--> 00:21:15

directed and passionate and committed. He says, Nick, this weddings in the mosques, because again, the mosque is often placed for all Muslims to come and see. And he says,

00:21:16--> 00:21:28

announce it, and also make some kind of drum drums, as a kind of happy occasion, permissible type of, you know, entertainment,

00:21:30--> 00:21:44

that I think that's also desirable is that the, the bridegroom should also make a kind of party or a meal. In fact, the prophet was quoted as saying that you should have,

00:21:45--> 00:22:18

in any wedding, some kind of a party or meal that was narrated, for example, an admin, when it is flexible, you can have that party, the same day when the contract is signed, even though before the consummation of marriage, you could have it after the contract is signed, you can have the same night when marriages to be consummated, that's when she moves to the household of the husband, or the new home. Or it could be the following day. It's quite flexible, either this would be would be acceptable.

00:22:20--> 00:22:41

But of course, the main restriction on any of these parties is that it should be of course, in this clinic wave, you know, violation of Islamic law elsewhere. Secondly, that when you make a party like that, the prophet said it very clearly, as narrated in Bukhari that the worst party is the party, which

00:22:43--> 00:23:12

are to which some people are rejected, who need it, or who come, and people who don't need it, are invited. That's one way of saying, a party where you invite the rich who doesn't need and neglects the poor. There are several narrations of the Prophet that saying, This is not appropriate in a party like that, just to restrict it to the rich and the poor to be more open type of thing. Of course, don't say that you have to invite 5000 people, but in your neighborhood, or friends or

00:23:13--> 00:23:18

close people, you should at least include the poor people as well. And

00:23:19--> 00:23:23

so this is this are all measures, which together, marriage

00:23:24--> 00:23:37

is joyful type of touch, but still without any complex proceedings or over, you know, undue formality, just to have a happy occasion where everybody feels part of it here. Now,

00:23:38--> 00:24:14

it's sometimes stated that a one in one point of time, Islam allowed for temporary marriages say Could you explain that and perhaps give some indication of whether or not this kind of situation is still lawful? Okay. Well, I could also say that, at one point of time, drinking was not objected to intoxicants in the in the days of Islam, and that was discussed, as you might recall, in the six series, when we dealt with intoxicants that even though as you know, now, intoxicants are totally forbidden to Muslims, there's no doubt about it. But when Islam came first,

00:24:16--> 00:24:24

people were so involved in drinking, it was like a way of life for them. And if the legislation came to say, immediately

00:24:25--> 00:25:00

give up all this lifelong habits, and stop drinking, all of a sudden, people would have not responded. So Islam also considered human psychology and needs for some gradual improvement. And you might recall in the case of drinking, first it's a discourage people from drinking. Secondly, it says, don't pray when you're intoxicated. So many people got the message and finally can be absolute and unequivocal prohibition of drinking. The same thing in the early days of Islam also, as you know, people were are very promiscuous really, officially

00:25:00--> 00:25:05

Read about the history of the Muslim or the Arabs before Islam. And

00:25:06--> 00:25:09

at the early days of Islam, also people used to go for

00:25:10--> 00:25:12

campaigns or

00:25:13--> 00:25:35

sometimes in the battlefield that they go for an extended period of time. Some of them could not resist that. And they went to the prophet and asked him if he could authorize them or allow them to sterilize themselves. He said, they were tired, they didn't want to commit the wrong act, but they couldn't resist. They said, Can you allow us to sterilize? He said, No, because the sterilization of course, is totally out.

00:25:37--> 00:25:53

Standard kitchen, but he consented to a sort of marriage, which is exactly the same as normal marriage, except in one basic difference. And I say it's a basic, and that is the lack of intention of permanence.

00:25:55--> 00:26:09

Doesn't mean of course, that is just temporary in the sense of just for one night or all this because that's, that's not the purpose behind it like some period, but not necessarily, it could be several months, it could be a certain period of time, but not necessarily for a permanent period.

00:26:11--> 00:26:27

However, as time went on, and people began to understand the spirit of Islam, it ended up being totally forbidden. As far as the second part of the question, What is the situation of this so called temporary marriage now,

00:26:28--> 00:26:33

according to the overwhelming majority of jurist, it is no longer valid for a number of reasons. First of all,

00:26:35--> 00:26:54

is that the purpose of marriage as indicated in the Quran, for example, if you refer to chapter 16, verse 72, it talks about God making as a blessing for us, from our wives, children and grandchildren. So the purpose is a continuation is perpetuation of relationship.

00:26:55--> 00:27:07

The same thing that you quoted before in chapter 30, in the Quran, verse 21, that marriage is tranquility is mutual peace and affection. It's not something just for any limited period of time.

00:27:08--> 00:27:09

The second thing is that

00:27:11--> 00:27:50

the Prophet peace be upon him was quoted also in several authorities, as indicating that this thing that has been permitted before has now been totally forbidden until the day of judgment, it says. So there are very, very few jurists to stand up for that you and they say in the case of absolute necessity, like somebody's traveling away for years or something, and he fears that you might fall into adultery, then it might be better to get married for these two, three years without deception, of course, with mutual consent, but, you know, separate after this, but like I said, the basic position really is that

00:27:51--> 00:27:59

the overwhelming position I should say that it is it is no longer permissible just was one stage in the development legislation.

00:28:00--> 00:28:10

I think we should leave it at that for today because our time is gone. We want to thank you for watching our program, and I should be back next week. Thank you for watching. Assalamu alaikum