Marriage contract

[UmmSqueakster 54]

Definately something to consider writing up prior to getting married. I wrote a paper on this a few years back for a family law class, but I can't seem to find it now

http://news.yahoo.com/s/ap/20060824/ap_on_re/religion_today

Religion today By NAHAL TOOSI, Associated Press Writer

Thu Aug 24, 12:01 PM ET

Should anything go wrong in her marriage, Zaynab Abdul-Razacq is confident her rights will be well-protected. Her husband has guaranteed it — in writing.

The young Muslim couple chose a path advocated by Islamic scholars concerned about women's rights: drawing up a Muslim marriage contract that takes into account modern needs.

Abdul-Razacq's agreement states that she is in charge of the household finances and that if her husband abuses her in "any dimension of wellness" she can automatically divorce him. He stipulated that he could make household decisions without interference from in-laws and other relatives.

"At the outset, we agreed these are things that are pretty important to us," said Abdul-Razacq, 29, who lives in Decatur, Ga., and married three years ago.

The contract has long been a Muslim tradition. Most, however, contain just one key provision, that of the "mahr," a gift usually of money, that the man gives the woman.

Islamic law experts who advocate for better treatment for women say the documents can help them assert rights under religious law that have long been played down by men. Advocates contend their approach is well within Islamic law, even though skeptics say the interpretation is too influenced by Western thinking.

The contract is especially useful in the United States, where Muslims come from a variety of ethnic backgrounds and follow different customs and levels of observance. The document can accommodate views ranging from liberal to conservative.

Karamah, an organization of Muslim women lawyers based in Washington, is developing a "model" marriage contract that can be adjusted to meet the requirements of family law in different parts of the country, said Azizah al-Hibri, a founder of the group, whose name means "dignity" in Arabic. In the United States, civil law governs divorce, but judges have taken Muslim marriage contracts into consideration, sometimes viewing them as prenuptial agreements.

Al-Hibri, a law professor at the University of Richmond, Va., said the contracts also help couples prepare for the challenges of married life.

"Couples need to define their relationship as they enter the marriage, so that they do not get disillusioned later," al-Hibri said. "They need a meeting of the minds on what their family life will look like. The contract helps them do that by discussing the issues up front."

It's generally accepted that Islamic law gives women the right to property and financial independence within marriage. Some Muslims scholars contend women are not even obligated to do housework. These and other details about running a house can be specified in the contract.

Negotiating the agreement, "brings an air of reality and rationality to a process that is often fraught with emotion," said Aminah McCloud, professor of Islamic Studies at DePaul University in Chicago. McCloud's own marriage contract says that her husband must accompany her when she travels and that she is not obligated to cook.

Much of the negotiation involves the "mahr," whose dollar value ranges widely.

Some Muslim women consider the gift archaic in an age when women can earn their own salaries. Others, however, view it as a symbol that the man values the woman, similar to an engagement ring; it's also a gift that is hers alone.

Maryam Sayar and her husband, of Cortlandt Manor, N.Y., kept their contract simple, specifying only the "mahr." They haven't even told their families what it was.

"We both know one another so well, we have an understanding," said Sayar, 26, and a law school graduate. "I feel like there will not be any breach of any sort, because he understands my expectations of life and from the marriage as well. I similarly have an understanding of his expectations of life and marriage."

Beyond the "mahr," the marriage contract can help address concerns about certain practices allowed in Islam, even if the behavior is forbidden by U.S. civil law.

For example, polygamy is illegal in the United States, but some conservative Muslims interpret their religion as allowing a man to marry up to four women. Many Muslim brides stipulate an automatic right to divorce in their marriage contract if the man takes another wife. McCloud says that's especially important if a couple may one day live in another country.

Information about the contracts is available online, in women's magazines including Azizah, and at conventions such as the annual meeting of the Islamic Society of North America, an umbrella group for mosques and other Muslim organizations. Abdul-Razacq, who explored the contract at the insistence of her mother, consulted a book with sample documents called "Your Islamic Marriage Contract."

McCloud acknowledges the limits of the document in trying to preserve equality in such an unpredictable undertaking as marriage. But she said the contract does provide some protection if a union fails.

"There's no way to guard against the impostor, there's no way to guard against the liar," McCloud said. "But at least you have written down and witnessed something so that when you go to court to get them, you can get them. And you don't wind up on 'Judge Judy.'"

___

On the Net:

Karamah: http://www.karamah.org

[Henia 11]

Thanks for this post Rahma, as I myself seem to find myself writing a marriage contract for my marriage at the moment....LoL

Marriage in Islam is a contract. Thus, as in any contract in Islam, there are elements which are considered essential to its existence, called arkaan, the possibility of stipulations of different kinds, legal effects of the contract, etc. Each of these should be understood properly in order to ensure that the marriage has been performed in the proper manner and the rightful effects of the marriage are granted to each of the participating partners.

<H4 align=left>The Arkaan of a Marriage According to the Jamhoor (Majority of Scholars)</H4>

1. Offer and acceptance are among the arkaan. For most of these scholars, the offer must be from the woman's side and the acceptance from the man.

   
   

2. The two parties to the contract: the prospective husband and the guardian of the woman.

   
   

3. The presence of witnesses.

   
   

4. Dowry.

   
   

According to the majority of the scholars, it is not necessary for the marriage contract to be transacted in Arabic, even for those who have the ability to speak Arabic. Those in the Hanbali school who required the use of forms of the words nikah or zawaaj also required that the contract be transacted in Arabic for this reason.

With respect to marriage, there are four different kinds of conditions which must be met:

1. Conditions Required for Initiating the Contract (shuroot al-in'iqaad). These are the conditions that must be present with respect to the arkaan or fundamentals of the marriage contract.
   
2. Conditions Required for the Soundness of the Contract (shuroot as-sihha). These are conditions which must be fulfilled in order for the marriage to have its proper legal effect. If these conditions are not met, the contract is "defective" (faasid), according to Hanafi fiqh, "void" (baatil) according to the others.
   
3. Conditions Required for the Execution of the Contract (shuroot an-nifaadh). These are conditions which must be met for the marriage to have actual practical effect. If these conditions are not met, then the marriage is "suspended" (mauqoof) according to Hanafi and Maliki fiqh. For example, a minor girl until she reaches puberty.
   
4. Conditions Required for Making the Marriage Binding (shuroot al-luzoom). If these conditions are not met, then the marriage is non-binding meaning that either of the two parties or others may have the right to anull the marriage. If they accept the marriage with such shortcomings, it becomes binding.
   

It is a general principle in fiqh that customs can take the status of law. It becomes understood that people are going to behave in a certain fashion. Since that is understood, one party has the right to ask it of the other even if it is not stated in the contract. In the area of marriage, there are some stipulations that are known by custom. These do not have to be mentioned in the contract to be considered binding. However, there are some strict conditions that must be met before a customary act is considered something equivalent to a legal stipulation. These conditions are as follows:

1. The customary practice cannot contravene or contradict anything expressly laid down by the shari'a. For example, it is custom in some parts of the world for the woman to pay dowry to the man. In other parts, it is customary to prepare two or three times amount of food that the guests could possibly eat at the walima (wedding feast). Neither party has the right to demand of the other the fulfillment of such customs.
   
2. The customary act must be common, well-known and universal and not something practiced only by some portions of the population.
   
3. The custom must have been in existence and known before the marriage contract took place.
   

Even those who accept these stipulations all agree that certain conditions are not allowed. Among them are the following:

1. Nikaah Ash-Shighaar. This is where the two dowries are stolen and "exchanged". For example a man marries his son to another's daughter in "exchange" for the other marrying his daughter to the first one's son. Neither woman receives their dowry.
   
2. Nikaah Al-Mut'a. Any kind of marriage with a stipulated time limit.
   
3. Nikaah At-Tahleel. A woman who has been divorced three times and wishes to return to her first husband marries a man on the condition that he divorce her. If this is discovered or if this is her intention, the first husband still does not become lawful for her in spite of this marriage.
   

I strongly urge anyone who is considering putting conditions or any of the following clauses in their marriage contract or working out a prenuptial agreement with their spouse-to-be to consult a qualified Islamic scholar as well as a Muslim lawyer well grounded in marriage and divorce law of the land. I know myself I have spoke with an islamic scholar and a lawyer familiar with the subject.

Some things I have thought over in the last few months....

• both husband and wife agree to discuss all issues that arise in their marriage and arrive at mutually agreeable conclusions. Differences of opinion concerning a point of Islamic practice will be referred to the Quran and Hadith. Both will admit if they are simply expressing personal opinions, which will not be binding.
  
• none of them will have a right to physically hurt each other.
  
• the husband must learn to speak and read Arabic fluently.
  
• that the husband will not require the wife to move out of her home town.
  
• the wife will bring all twenty of her cats to live in her husband's house.
  
• husband and wife both will share responsibilities of cooking, cleaning and other homemaking tasks.
  
• income of husband and wife both will be pooled together in one account operable by each one individually with mutual consent.
  
• husband will not exercise his option of another wife
  
• husband is the leader of the family who will run the family in consultation with the wife.
  
• wife will not be required to work outside the home. If she chooses to work, she will be not be stopped from it and she will not be required to share that income for the family needs.
  
• wife will not work to earn money without the consent of husband.
  
• wife will be solely responsible for homemaking.
  
• children will be raised as Muslims in home and through Islamic education.
  
• home will be run Islamically as described in the Quran and Hadith
  
• Children will not be taken to church.
  
• A court granted divorce will be considered, Islamically, a first level of Talaq (divorce), which has a room for remarrying the same person without any condition.
  
• husband or wife will facilitate each other's Islamic work and will not stop each other from it.
  
• in case of a dispute, husband and wife will appoint one person each to arbitrate between them
  
• if either husband or a wife suggests marriage counseling, the other party must agree to it.
  
• husband will not ask wife to stop her Islamic practices like Hijab
  
• if anyone indulges in Haram (what is forbidden), it will be an acceptable ground for divorce.
  
• in case of divorce, children will be with Muslim spouse and will be raised Muslims.
  
• in case of any spouse's death, the surviving spouse will be responsible for the distribution of inheritance according to the Islamic law.
  
• family will not move out to another country without mutual agreement.
  

[UmmSqueakster 54]

Very good things to add/think about.

I actually don't take my own advice I did a whole big legal research project about the contract as a premarital agreement under Minnesota law. I drew up sample contracts and everything. Tamer and I wrote a short one, buttt, we never took it to the masjid to get people to witness and sign it Ah well, it's an oral agreement. The only real big one is that it's fine if he marries two wives, I just won't be one of them

[Together4ever 1]

Rahma,

Thanks for posting this, and Henia too. Mohammed and I talked about this tonight and he is going to go see his friend (the older man from the story I posted) who happens to be a lawyer tomorrow. He wants to work up a rough draft we can work with. Timing was actually kind of a blessing. It will mean a lot for him to bring the foundation of our contract with him from his homeland.

[Henia 11]

Rahma,

Thanks for posting this, and Henia too. Mohammed and I talked about this tonight and he is going to go see his friend (the older man from the story I posted) who happens to be a lawyer tomorrow. He wants to work up a rough draft we can work with. Timing was actually kind of a blessing. It will mean a lot for him to bring the foundation of our contract with him from his homeland.

I pray for your success Jean... writing it by yourself isnt easy....I just advice think over everything you would like from this marriage and husband... I put in things like...we both make decisions, we cannot move out of state/country without mutual consent, education of our children, etc...so everything>>LOL

[PalestineMyHeart 1,897]

The only real big one is that it's fine if he marries two wives, I just won't be one of them

Heehee Yep.... he can get another wife. And you can get another husband.

-MK

[lostinlove228 0]

The only real big one is that it's fine if he marries two wives, I just won't be one of them

Heehee Yep.... he can get another wife. And you can get another husband.

-MK

I got that Verbally...Should have put it writting . Actually he absolutly hates this practice. I know he would never do that.

The only thing in our contract was the Mahr and it was hand written. The Rest we agreed on verbally. If he ever breaks his promises ( which I know he won't) It's between him and god.

[Together4ever 1]

I told Moh for my mahr I want $1. He said "HUH?" I said, "Yep. I'm a greedy little miser. I want $1." He said, "But that's 5 POUNDS!" Hahahahaha.

[UmmSqueakster 54]

I told Moh for my mahr I want $1. He said "HUH?" I said, "Yep. I'm a greedy little miser. I want $1." He said, "But that's 5 POUNDS!" Hahahahaha.

My original mahr was 1 LE. Tamer waited until he found a crisp one and then wrote a little love note on it. I've carried it in my wallet ever since. Worth more than $1,000,000 to me (howeva, a million would be nice right now)

Now, I'm protected in case of a divorce even without a significant mahr, because another one of our agreements in the hereto unsigned contract is that if we divorce, we'll split our assests per whatever the laws of the state we're living in, so I won't get shafted.

[Henia 11]

I told Moh for my mahr I want $1. He said "HUH?" I said, "Yep. I'm a greedy little miser. I want $1." He said, "But that's 5 POUNDS!" Hahahahaha.

My original mahr was 1 LE. Tamer waited until he found a crisp one and then wrote a little love note on it. I've carried it in my wallet ever since. Worth more than $1,000,000 to me (howeva, a million would be nice right now)

Now, I'm protected in case of a divorce even without a significant mahr, because another one of our agreements in the hereto unsigned contract is that if we divorce, we'll split our assests per whatever the laws of the state we're living in, so I won't get shafted.

Awwwwwwww so nice .... and sweet of you two asking for those mahrs...

[Veiled Princess 1]

Some things I have thought over in the last few months....

• the wife will bring all twenty of her cats to live in her husband's house.
  
• husband will not exercise his option of another wife
  

The first one is funny Do you really have 20 cats???

The second one I don't think is Islamic because you're making something haraam for the man that Allah has made halal for him. But I guess if he agrees to it upfront then oh well

[sarah and hicham 3]

Hicham told me that in Morocco the man has to has his first wives consent if he is going to have a second, third, or fourth wife. He said that is fairly new there and part of giving women more rights.

[Together4ever 1]

Hicham told me that in Morocco the man has to has his first wives consent if he is going to have a second, third, or fourth wife. He said that is fairly new there and part of giving women more rights.

Yep. You'll find its more and more common for young muslim men to reject the option of additional wives. I don't think this is going against Allah's wishes. Never does it say a man is REQUIRED to have more then one. Mohammed rejects it totally. If a man agrees that he doesn't want it, it is not make haram that which is halal. It's simply choice.

[sarah and hicham 3]

Hicham told me that in Morocco the man has to has his first wives consent if he is going to have a second, third, or fourth wife. He said that is fairly new there and part of giving women more rights.

Yep. You'll find its more and more common for young muslim men to reject the option of additional wives. I don't think this is going against Allah's wishes. Never does it say a man is REQUIRED to have more then one. Mohammed rejects it totally. If a man agrees that he doesn't want it, it is not make haram that which is halal. It's simply choice.

That's exactly what Hicham said- that the younger generation generally rejects this option.

Jean how old is Mohammed is he close to Hicham's age? (21)

Sarah

[Bosco 1]

Also, the stipulations in marriage contracts about a second wife do not prevent a 'second wife' as much as they prevent two simultaneous wives. Some countries limit the woman's ability to divorce. By having this in the contract, the husband has given his wife the right to divorce if he wants a second wife as he is violating the marital contract. I don't think it is haram for a man to allow his wife to divorce him if he wants a second wife.