MARRIAGE CONTRACT AND ITS CONDITIONS
IN ISLAM[1]
INTRODUCTION:
In Islamic legal system, the institution of family is formed in the framework of “marriage contract”. Establishment of marital relationship is also authorized in the framework of this legal institution. Literally speaking in Arabic language , contract which is the first component of this institution, means “knotting”. Under Islamic Law, contract is a legal institution that is formed by linkage of at least two wills. The purpose for creation of this legal institution is provision of a specific framework for establishment of financial and non- financial contractual relations.
Although “contract” is formed by the linkage of at least two wills, yet marriage contract may only be formed by linkage of two wills. Literally speaking in Arabic language, marriage means sexual intercourse. In Islamic Jurisprudence however, marriage is used in place of marriage contract.
“Condition”, verbally speaking, has a variety of meanings, among them, promise, covenant, dependence of one thing to another, obliging and binding. In Islamic Jurisprudence texts, condition is used in the following two meanings in the law of contracts:
- Condition means a thing on which the occurrence or effect of a specific legal act depends, such as the necessity of intention to make a contract (Animus). Condition in this sense is considered as one of the basic elements of contract formation, and validity and enforceability of contract depends on it.
- Islamic scholars are divided on the issue of condition. Some of them consider it as an independent undertaking, but others as a causa rei In this meaning condition is divided into two categories: First, there is a condition that is not an independent undertaking, but rather is fully a dependent of the contract. This is the case with conditions requiring that subject matter of a contract should have particular specifications. Second, condition as an independent undertaking, which is framed in the framework of a condition, but as part of another contract. This sort of independent undertaking may also be framed in the form of a separate contract, such as a power of attorney, when it is included in a marriage contract. In this way, one of the parties is empowered to perform a certain act. And the contract, which is formed as a condition stipulated in another contract is considered as the causa rei thereof. Thus, in essence, the parties’ agreement consists of two transactions crystallized in one single contract.
Under the Islamic Law, it is in principle allowed to undertake by mutual consent and through conditions stipulated in a contract new obligations that are not in conflict with imperative laws (jus cogens). In marriage contracts however, imperative laws are more common than in other contracts; hence, the parties are more restricted in using condition mechanism for reducing their views in writing, in place of independent contracts.
To provide more information on the methods of formulating the couple’s views in a marriage contract under Islamic law, we will initially discuss the concept and the consequences of the marriage contract in the Part One, then the stipulations that can be mentioned as conditions in a contract, as the instances of application of the aforesaid methods, in Part Two.
*****
PART ONE: CONTRACT OF MARRIAGE
Under Islamic law, two types of marriage contract are envisioned for establishment of marital relationship: Permanent and Temporary. Permanent Marriage Contract is for establishment of a permanent and indefinite institution. This type of contract may become dissolved by termination or divorce.[2] Provisional Marriage Contract is for creation of a legal institution for a definite and limited period of time. This type of marriage was acceptable to all Muslims , on the basis of the Quaranic Verse (Sura 4 Verse 24): “Since you have thereby sought enjoyment with them, give them their marriage portions as is stipulated.” Nowadays however, a group of Muslims are of the view that this law has been abrogated and this type of marriage is null and void[3]. The Shiite scholars however consider establishment of marital relationship through this type of marriage as authorized.
Marriage Contract will have financial and non-financial consequences, immediately after conclusion and formation.
The financial consequences of marriage contract may be categorized in three areas of “marriage portion”(payable to the wife anytime after the conclusion of the contract on her request), “espousal support”, and “inheritance”. “Marriage Portion” is a property that husband becomes obliged to pay to the wife under the contract of marriage. Upon conclusion of marriage contract, the wife will becomes the owner of the marriage portion; and is allowed to dispose of it in any manner. “Espousal support” consists of the costs of housing, wearing, boarding and household appliances, and shall reasonably suit status of the wife. In marriage contract, the husband is bound to provide the wife espousal support. Where the wife is accustomed to having servants or requires assistance due to illness or disability, the costs thereof constitute part of the wife’s espousal support. In permanent marriage contract, all of the said costs shall be borne by the husband, but in temporary marriage contract the wife has no right to espousal support, unless where agreement has been made for payment thereof. This agreement is often in the form of a condition stipulated in the contract. Permanent marriage contract is one of the causes of “inheritance”, provided that either couple is alive at the time of the other’s death[4]. Nevertheless, both groups of children of marriage, whether born to permanent or temporary marriages, inherit from their parents.
Marriage contract has also non-financial consequences, among which one may mention legitimacy of marital relationship between the couple, the right to have children and the duty to provide housing for the wife. The wife shall submit to sexual intercourse with the husband, where there is no acceptable reason for refusal. And, the husband shall not refrain from having sexual intercourse with the wife for more than four months. In permanent marriages, the husband is not authorized to prevent pregnancy, without the wife’s consent. In temporary marriages however, the husband is allowed to do so, and do not require the wife’s authorization, save where otherwise is mentioned expressly as a condition in the contract. In other words, change of the rule is possible only through inclusion of a contrary condition in the contract and upon mutual agreement. The husband shall also be responsible for provision of housing for the wife. Yet, with due observance of the foregoing conditions, the husband shall have the right to choose the couple’s place of residence, save where otherwise is mentioned in the contract.
As it was demonstrated above, many of financial and non-financial consequences that have been envisioned for marriage contract can be modified by conditions included in contract that are not in conflict with imperative laws (jus cogens). Hence, initially we will discuss the conditions included in contract; and then having become acquainted with typology thereof, we will discuss various forms by which financial and non-financial relations are changed.
*****
PART TWO: CONDITIONS INCLUDED IN MARRIAGE CONTRACT
Part one was allocated to the concept of “Marriage Contract” in Islamic legal system. In this Part we will discuss the condition by which we can modify the rules and consequences of this legal institution.
Contract conditions may take various forms: They may be stipulated before conclusion of a contract, included in a contract or added thereto after conclusion of a contract. In sum, it may be stated that all of the three forms are equally valid and are considered as the causa rei of contract. Hence, by the term condition, we may mean any of the aforesaid forms.
Shiite scholars have adopted rules for giving effect to conditions stipulated in contracts through one of the aforesaid forms. There is disagreement among Shiite scholars regarding the subjects of these conditions, known as “the requisites for propriety of conditions”. Nonetheless, Conditions included in contracts may be divided into two categories: “Valid Conditions” and “Invalid Conditions”. After having become acquainted with Invalid Conditions, one may say that conditions that are not Invalid Conditions are regarded as Valid. Hence, here we will deal with Invalid Conditions.
Invalid Conditions are studied in two categories: “Null and Void Conditions” and “Null and Annulling Conditions”.
“Null and Void Conditions” are those which are of no legal consequence, but do not affect validity of the contract in which they are included. Examples of null and void conditions are variable in Shiite jurisprudence books, among them one may mention “conditions opposing Koran and Tradition”, “condition making an otherwise legitimate thing illegitimate”, “condition making an otherwise illegitimate thing legitimate”, “condition that is of no reasonable use”, and “condition which is not certain”.
Presently, in Shiite Jurisprudence, Null and Void Conditions are as follows:
- Conditions, fulfillment of which is impossible;
- Conditions, which are of no benefit and profit; and
- Conditions, which are illegitimate.
Null and Annulling Conditions are those, which are per se of no legal effect; and their inclusion in a contract will also cause the contract void and of no effect. These conditions are as follows:
- Repugnant Conditions;
- Vague conditions, the vagueness of which will create vagueness in the subject matter of contract.
Shiite scholars disagree on the definition of repugnant conditions. In brief, it may be said that any condition the subject of which is a matter that is in conflict with the essence of contract is against the purpose and subject matter thereof, and is considered as a repugnant condition. This is because one may not make an agreement that is in conflict with its subject matter and the rules and consequences related to the nature thereof.
Now, having become acquainted with the conditions included in contract, we may enter into discussion of application of these conditions in contract of marriage.
Based on the principle of freedom of contracts and consent basis of contracts, wife and husband have full discretion in accepting contract of marriage and in concluding it. Yet, after having accepted this legal institution as a framework for establishing marital relations, the couple shall accept many of its pre-determined consequences. This is the point that makes marriage contract different from other contracts. In other words, many of the existing rules in contracts are imperative, and cannot be changed by mutual agreement.
Nevertheless, conditions which are not null and void or annulling and which are considered as valid conditions may modify consequences and non-imperative rules of the contract of marriage, by mutual agreement. The wife and the husband may also place part of their obligations subject to the contract of marriage. In the latter instance, these obligations will become conditions stipulated in the contract of marriage.
Valid conditions by which certain obligations are included in contracts on the basis of the parties’ agreement are studied under three categories of “particular specification condition”, “particular result condition” and “specific act condition”.
“Particular specification condition” in a contract of marriage is a condition by which existence or non-existence of a particular specification is stipulated in the contract as regards the marriage portion or in respect of the other party.
As stated above, marriage portion is a property that husband becomes obliged to pay to the wife under the contract of marriage. Now, where a particular specification is mentioned for the marriage portion and after the contract is concluded, it becomes revealed that the marriage portion lacks the said specification, the wife will have the option to cancel the marriage portion. In that case, the wife will be entitled to the marriage portion or the value thereof, taking into account the specification that has been mentioned in the contract as a condition.
Where the specific condition concerns either couple, and after marriage, it becomes clear that the other party lacks the particular mentioned in the contract, the other party shall have the right to cancel the contract.
“Particular result condition” relates to a situation when the contract has been made subject to realization of a matter in reality. “Specific act condition” relates to a condition under which a specific act ought to be performed by either party or a third person. Where the subject matter of specific result condition and specific act condition is marriage- related matters, the other party will have the right to receive remedy under the guarantee for non-fulfillment of the condition, as provided in the contract.
As an example and in order to clarify the point, we discuss power of attorney in contract of marriage. Under the Islamic Law, the right of divorce in permanent marriage resides in husband. And, in temporary marriage also it is for the husband to announce that the marriage is terminated even before the completion of the contractual period. To give protection to wives and to accommodate their views, it is possible to mention power of attorney for wives as a specific act or specific result condition. In that case, the wife will be empowered by the husband to get divorce, in case a specific event takes place or does not take place.
It ought to be added that methods of dissolution of contract of marriage is specified in Islamic Law. Hence, where a specific act or specific result condition is not realized, the contract will remain in force where the wife has not been given power of attorney to get divorce in those instances. In other words, the right to cancel the contract will not be created for any person in whose favor the condition is stipulated. Yet the beneficiary may require payment of compensation for the condition that has not been realized.
*****
[۱] Abbas GHASEMI HAMED, in:Marriage and its Alternatives: challenges for Muslims and Christians, 2 Fev. 2005, Birmingham, England
[۲] Insanity of the husband, existing prior to marriage or developing afterwards, and insanity of the wife when existing prior to marriage, will give the other party the right to cancel the marriage contract.
[۳] This view is based on the narration quoted from the 2nd Caliph, who said that there were two temporary institutions that were allowed under the Prophet’s reign, but I forbid them and punish those who commit them. See Islamic Jurisprudence Terminology, P. 176, op cit, Note 3.
[۴] A half of the estate will belong to the surviving husband and a quarter thereof to the surviving wife, where the deceased does not have any children or grandchildren; and a quarter will belong to the surviving husband and an octant thereof to the surviving wife, where the deceased has children or grandchildren