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Islamic Law
Marriage and Divorce
Love and Mercy above all from God
Before we can talk about Marriage and Divorce in Islamic Law, we must recognize that marriage in Islam is based on love and mercy as the Quran states:
And of His signs is that He created for you from yourselves mates that you may find tranquillity in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought. (Quran, 30:21)
Marriage and Divorce in Islamic Law
There are a few main elements that are important to the institution of Islamic Marriage:
Marriage in Islam is a contract between a man and a woman.
Mahr or dowry is from husband to the wife.
In Islamic law, Muslim men can marry Christian or Jewish women. However, Muslim women can only marry Muslim men.
Divorce is a complicated and a hated lawful act in Islam:
A man can divorce his wife
A wife can seek a divorce from her husband.
Divorce is lawful but considered one of the reprehensible acts a Muslim can do, particularly without a true justification.
Divorce can be used to abuse.
A lot of complexity has been developed around marriage and divorce in order to ensure the welfare of women. However, this does not always work to the advantage of the weak and women end up being treated unfairly by unregulated laws.
Marriage Contract
A women or a man has the right to accept or refuse the marriage proposal.
The proposal should be written down in the form of a contract despite the romance and loving relationship that is hoped between the two.
The bride has the right to put any stipulation she wants in the contract so long as she does not take away the right of another person. Example: A bride cannot take the rights of children from a previous marriage.
Any stipulation made by the bride in her marriage contract can be grounds for divorce. The bride can stipulate that the groom must remain in a monogamous marriage with her. If he ever takes on a second wife, the wife can divorce immediately and the groom gets nothing from the wife.
A marriage contract can be a very powerful tool for a woman to have. However, it is unfortunate that a woman’s voice on her own contract is not often encouraged. Despite the prophet’s guidance in allowing a woman the right to stipulate anything in her contract, cultural norms discourage a woman from exercising this important right.
Mahr, the Bridal Gift
Mahr, dowry from a man to a woman is considered to be a bridal gift, particularly in today’s societies across the contemporary Muslim world. Mahr is NOT to be understood as a bridal price. A Mahr is NOT purchasing the wife even though in some classical literature there has been some likening between dowry and price as noted in the Kecia Ali text. Ali is basically using this language to support an argument about the way some communities viewed women and how they interpreted the tradition through a misogynistic lens, not what mahr actually means.
Mahr can be as simple as a wedding ring or it can reach very high values. It is not uncommon for Mahr to be $20,000, an awesome honeymoon, a promise to support a woman’s education, a million dollar wedding, etc. Mahr has no cap.
When a man gives mahr to a wife, he is basically asking her to commit herself to him as a wife and along with that is to be sexual with him and him only as well as to be the mother of his children. If she does not want to commit to this, nothing can force her to accept marriage. Usually, mahr is not made explicit in this way. Rather it is communicated and received as a gift. Sexual relations are understood, not made explicitly clear even though the Islamic law makes it clear that way.
Also, no one is allowed to accept the mahr on behalf of the bride. The mahr is given to the bride and no one has the right to claim it not even her father or mother. She is free to do whatever she wants with her mahr.
Sex in Marriage
Sexual relations between a husband and wife are highly encouraged and are supported by the sunnah of the prophet.
The Prophet never viewed sexuality as anything but a natural humane element.
As the prophet was human, there are hadith that discuss his sexuality.
A wife should be available to her husband. In fact, for the most part, although a wife may have many responsibilities to her family, the most basic of her responsibilities is to maintain intimacy with her husband and not turn him away. This is to ensure a good family that is the unit of an Islamic society.
Further in the hadith, it is known that if a wife refuses intimacy with her husband, she displeases God.
There are also many hadith that promote satisfaction for a wife. As a husband wants to be sexually satisfied, so too he must sexually satisfy his wife and not leave her before she has her orgasm.
Polygyny
Polygyny or having multiple wives has been a part of Islamic history since the time of the Prophet Muhammad who had multiple wives. It is even found in the Bible with many of the prophets practicing polygyny.
Islamic law stipulates that men can have up to four wives at one time. This law was more restrictive rather than prescriptive. In pre-Islamic Arabia, men had many wives, such as 10 or 12. The Quran limited the number of wives to four. This meant that the Quran was restricting polygyny. Further, the way the verse in the Quran is read, it is understood that monogamy is the better and more just way than polygyny. See Muhammad Abduh’s text.
Quran, 4:3-4:4
Both of the verses highlight the complexity of polygyny and the bridal gift, mahr.
And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]. (Quran 4:3)
And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease. (Quran 4:4)
https://quran.com/4
Kecia Ali
In Kecia Ali’s fascinating text, we get the opportunity to view the complexity of Islamic law in the institution of marriage and divorce. We also get to see the muddy issues that arise when the written law is applied to real world issues that are entrenched in cultural nuances and unique challenges. Ali looks closely at the vastly different contexts of marriage and critiques the way in which the views are reproached and defended.
She argues in chapter that: “Ultimately, I suggest that reconsideration of dower, spousal support, and intermarriage provides one possible way of thinking about a new structure of egalitarian marriage that bypasses the patriarchal presuppositions of these rules and avoids becoming mired in the minutiae of incremental legal reform. P. 3
Ali looks closely at three parts of Islamic marriage: Dower, Sex, and Inter-Marriage. She analyzes each of the parts to show the benefits as well as the difficulties and grievances that potentially can develop and have developed historically and in the present from the laws regulating marriage dower, sex and inter-marriage.
Ali also analyzes divorce in Islam and shows how it can at once be liberating for Muslim women under particular circumstances but can also but detrimental to women under other circumstances. She also highlights the complexity of following Islamic law in a non-Islamic court such as the civil courts of America.
Muhammad Abduh
Muhammad Abduh, a late 19th century/early 20th century Islamic legal scholar and theologian argues that Islam does not promote polygyny but rather restricts it. He further argues that monogamy is more just for woman. He uses the sources of Islam to support his call for monogamous marriages that help create a strong family unit.
Moroccan and Egyptian Family Law
Morocco and Egypt are both post-colonial states.
They both incorporated Islamic law in their civil courts regarding marriage and divorce. Look closely at the two documents. See the difference and similarities between the two countries.
Compare the two by their:
Short History
School of Fiqh
Religious Population
Court System
Minimum Marriage Age
Marriage Registration
Wali
Polygyny
Maintenance
Divorce
Post Divorce
Child Custody
