UK: Model Muslim Marriage Contract

المصدر: 
http://muslimmarriagecontract.org

The model Muslim marriage contract is designed for use by British Muslims who wish to enter into an ‘Islamic marriage’ or nikah in addition to any civil marriage they may or may not enter: http://muslimmarriagecontract.org/documents/MuslimMarriageContract.pdf

The contract aims to help address the suffering and unhappiness in many British Muslim families today by clarifying the rights and responsibilities of the spouses and by moving towards equality and justice in the family. These are rights that are guaranteed under the Shariah. These are also rights that are included in the Muslim family law or personal status codes for Muslims in many countries.

The contract was drafted after lengthy consultations with religious leaders, community organisations and women’s groups across the country, and comes with guidelines to facilitate its use.

Under British law, couples who are only in a nikah (ie they have not also done a civil marriage) are generally considered to be co-habiting. They do not have the same rights as couples in a civil marriage, or a marriage that is properly recognised under the law (for example a recognised foreign marriage).


Main Features of the Model Muslim Marriage Contract

The model Muslim marriage contract offers a number of significant features that will help ensure equality and justice in British Muslim families:


Written proof of marriage

The model Muslim marriage contract[link to .pdf download] provides written proof of the marriage and of the terms and conditions agreed between the spouses. There should be 3 copies of the contract: 1 given to the bride, 1 given to the groom, and 1 kept by the mosque conducting the ceremony.

Written proof of the marriage helps prevent any future uncertainties about the marriage and its terms and conditions. As our case studies show, without a written marriage contract women often have difficulty in proving they were in a nikah, or that special conditions had been agreed between the spouses.

If the couple also has a British civil marriage, a British court hearing any case in relation to the marriage might take the details of thenikah into account.

If the couple does not also have a British civil marriage, and they later experience difficulties in the marriage, either or both of the spouses might ask a religious body or trusted person to help mediate between them. Having written proof of the marriage and its terms and conditions can make this process smoother, quicker and reduce the suffering for the parties involved. For example, having a written record of the haq mehr helps prevent all sorts of unpleasant disputes.


A written commitment to the Qur’anic vision of marriage

The model Muslim marriage contract emphasises the Qur’anic vision of marriage as a relationship of mutual love, mercy and kindness (mawaddah, rahmah, sukun). It is therefore a measure designed to promote harmony within Muslim marriages in Britain.

The realities of life for Muslims today in Britain mean that this Qur’anic vision can be understood as requiring mutual consultation and the financial independence of the husband and wife but their shared obligation to support the family and each other according to their needs and capacities. As equality and justice are central to Islam, they are also the basis for successful Muslim marriages today. Increasingly, family laws in Muslim-majority countries are being reformed to emphasise the equal rights and responsibilities of the spouses.

Within today’s British context, this Qur’anic vision also means the husband waives any right to polygamy. This brings Muslim marriages in Britain into line with positive developments in Muslim family lawacross the Muslim world.


Written proof of the terms and conditions of the marriage

The model Muslim marriage contract lays out the rights and responsibilities of the husband and wife in Islamic marriage. In addition to the general requirement that the couple is to treat each other with mutual love, mercy and kindness, Muslim laws allow a couple to agree specific conditions between themselves. Within this spirit of mutuality, this allows each couple to tailor the marriage to their particular needs.

For example, a professional couple may agree to mutually support each other financially while they take turns to complete post-graduate studies. Or a couple with one foreign-born spouse may agree that every year the foreign-born spouse will go abroad to visit their family for one month. These apparently small details can be very important to ensuring a sense of security and harmony.


Wali (‘marriage guardian for the bride’) not a requirement

The model Muslim marriage contract does not require a wali(‘marriage guardian’) for the bride. In classical Muslim fiqh(jurisprudence), the scholars could not agree whether a wali was indispensable[link to wali page in classical resources section]. Hence the absence of the requirement for a wali in Muslim family law in countries following the Hanafi precedent such as Bangladesh, India and Pakistan.

The current trend in Muslim family law is away from insisting upon awali. For example, the requirement for a wali has been removed in Morocco’s new Muslim family law (2004) and has been made optional in the 2005 amendments to the Algerian Family Code.


Automatic delegation of the right of divorce to the wife (talaq-i-tafweez/talaq-i-tafwid/’esma)

The model Muslim marriage contract makes delegation of the right of divorce to the wife (talaq-i-tafweeez, or also known as ‘esma in some Arabic-speaking communities) automatic. This right does not in any way reduce the husband’s right of talaq.

This provision in the model Muslim marriage contract reflects a recognition of changes in the Muslim world, including women’s greater public roles, educational achievements and financial autonomy. Many reformed codes, like Bangladesh and Pakistan’s standard marriage contracts, also recognise the wife’s right of talaq-i-tafweez. There is no evidence from countries which have recognised this provision of fiqh that women use this right irrationally. Women usually have far more to lose socially from a divorce than men, so it is to be expected that they would only use this right with great caution.

Through talaq-i-tafweez the wife can initiate divorce without requiring any permission or agreement from the husband, and retains all her financial rights including any haq mehr. When a wife has the right oftalaq-i-tafweez, she does not have to prove any grounds for divorce (except prove that she has the right in her marriage contract).

Delegating the right of divorce to the wife can promote harmony in the marriage: it prevents talaq being used as a one-sided threat in the marriage, and thereby introduces a greater balance in the relationship. Also, having the delegated right to divorce agreed in the marriage contract will help prevent one of the most common sources of suffering for Muslim women in Britain today. Often a couple has already divorced through the British civil courts but the husband then refuses to pronounce talaq as a means of continuing to control his ex-wife who feels obliged to have a religious sanction to the civil divorce. Obtaining this social and religious recognition of the divorce can take many months and unnecessarily extend the already long suffering of the family. Having talaq-i-tafweez makes this process much simpler and quicker.


Two adult witnesses of good character

The details of a Muslim marriage, for example the date it took place and the ages of the spouses, the terms and conditions agreed and especially any financial agreement are extremely important. They may affect the lives not just of the couple but also their children. It is therefore vital that there are reliable, easily-traceable, unbiased witnesses to the marriage.

 

The model Muslim marriage contract requires two adult witnesses of good character. In today’s multi-cultural Britain, women and non-Muslims must be recognised as just as capable of providing a reputable guarantee that the marriage took place and of the terms and conditions the couple agreed upon.