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Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody


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5.0 - Marriage

Marriage has a central role in Islam. Marriage is considered essential to the stability and growth of the family and the basic unit of the Islamic community.[25] Under Shari'a, marriage is incumbent on Muslim men and women unless they are financially or physically unable to lead a married life.[26] Although marriage in Islamic legal traditions has much in common with marriage in other faiths, it also has unique characteristics that distinguish it in significant ways.

5.1 - The Marriage Contract

In Islam, marriage is a civil contract between husband and wife legalizing intercourse and the procreation of children.[27] This aspect of Islam sets it apart from religions in which marriage is considered a spiritual, not civil, union. Shari'a proscribes certain preconditions to a valid marriage contract, and prohibits marriage on various grounds.

5.2 - Preconditions of and Prohibitions on Marriage

In order to contract a valid marriage for himself or herself, a Muslim man or woman must be sane and must have reached puberty.[28] Modern laws in Islamic countries generally require that a girl have reached at least thirteen years of age, and that a boy be at least fifteen, in order to marry. However, most legislation requires the couple to be older.[29] Aside from these preconditions, a marriage may be prohibited on grounds of religion, kindred affinity and fosterage.

Religion: While all the juristic schools allow a Muslim man to marry a Jewish or Christian woman, they prohibit a Muslim woman from marrying non-Muslim man. Under Shia doctrine, a Muslim man may also marry a Maji woman.[30]

Kindred and Affinity: According to the Malikis, Shafiis, Hanbalis, and the Shias, men are forbidden from marrying their ascendants, descendants, the ascendants or descendants of their wives, or the wives of their ascendants or descendants.[31] Under the Shia Ithna-Ashari school, a man is also prohibited from marrying the ascendants or descendants of a woman with whom he committed adultery; the adulteress is prohibited to his ascendants and descendants as well.[32]

Fosterage: Generally, any prohibited degree on grounds of kindred is also prohibited on grounds of fosterage or suckling.[33] Children breast-fed from the same woman are prohibited from marriage to each other when they come of age, and are considered related as 'milk-brother' or 'milk-sister'.

5.3 - Formation of the Marriage Contract

The Islamic marriage contract consists of an offer (ijab) and acceptance (qabul) that occur at the same meeting. In order for the contract to be valid, the man and woman must both hear and understand the offer and acceptance.[34] In all schools except the Hanifi school, the general consensus among jurists is that a woman must have a legal guardian to conclude the marriage contract on her behalf even if she possesses full legal capacity.[35] According to all the Sunni schools, the marriage also must be witnessed by two male witnesses, or one male and two female witnesses.[36] The Shia, however, do not require witnesses.[37] There is no requirement under any school that the marriage contract be made in a particular form or ceremony; although the Quran recommends that marriage contracts be in writing, oral contracts are valid.[38]

Whether or not it is specified in the marriage contract, a groom must pay his bride dower, a sum of money or other property that is useful, of monetary value, and ritually clean.[39] The dower is not a bride-price and is considered the property of the wife, not her guardian or relatives.[40] Although it becomes payable to the wife as an effect of the marriage, a dower may be paid immediately in full, or may be deferred. Shari'a allows all or part of the dower to be deferred. A deferred dower is payable to the wife upon a date agreed to by the couple, or upon divorce or death, whichever occurs first.[41] A large deferred dower specified in the marriage contract can function as a safeguard for wives against divorce; a husband who wants to divorce his wife may opt to stay married rather than pay her deferred dower upon divorce.

Under the Hanbali school, the bride and groom have the right to add provisions to the marriage contract at the time of marriage or afterwards by including additional clauses. In order to be valid, such clauses must further the object of the marriage and not violate the Shari'a.[42] For instance, conditions that the husband need not maintain the wife,[43] or that the husband must divorce a previous wife[44] are deemed void. However, clauses that eliminate the husband's right to take a second wife, or grant the wife greater freedom of movement or the power to divorce her husband at will, are valid.[45] A valid clause is enforceable by the party who made it; that party has the power to cancel the contract if the clause is violated.[46] The Hanafi school generally does not allow additional clauses to the marriage contract.[47] However, many Hanifi jurists today recognize that certain conditions may be added. While such Hanifis accept conditions that give the wife the right to divorce the husband at will, they consider a condition prohibiting the husband from taking another wife void.[48] Malikis accept the validity of additional clauses, but complicate the wife's right to add a condition granting her the power of divorce by requiring that the right be transferred from the husband in a certain form.[49]

5.4 - Spouses' Rights and Obligations to Each Other

Shari'a sets forth certain rights and duties of spouses. First, it is a mutual right and duty of husband and wife to treat one another with kindness and respect.[50] In addition to this basic tenet, the roles of husband and wife each come with specific rights and obligations.

Maintenance: The main duty of the husband is to provide his wife with maintenance. He must grant her necessities such as clothing, housing, food and medicine at his own expense.[51] The maintenance he provides should be at a scale suitable to his financial means, and comparable to that provided by his equals.[52] The matrimonial home is a central aspect of maintenance and a wife is expected to follow her husband to the matrimonial home provided it complies with Shari'a requirements. According to the Shari'a, the home must be suitable based on the husband's financial status, habitable, private, and must not be occupied by other people - even the husband's relatives.[53]

The wife's right to maintenance is based on three conditions: (1) validity of the marriage contract; (2) the wife granting her husband access to herself at all lawful times (tamkeen); and (3) the wife obeying her husband's lawful commands.[54] If the wife fails to fulfill any of these conditions, she loses her right to maintenance.[55] The majority of Islamic jurists hold that a wife who works outside the home without her husband's permission is not entitled to maintenance.[56]

Polygamy: Shari'a' under the Sunni as well as the Shia schools permits a Muslim man to have up to four wives at one time. However, the Quran bases this right on the condition that the man must treat his wives justly.[57] Verse provides that "Ye shall not be able to deal in fairness and justice between women however much ye wish."[58] Based on this, many countries with Shari'a-based family law systems have restricted men's right to have more than one wife. The laws of Tunisia and the Druzes of Lebanon and Syria prohibit polygamy entirely, while Iraq , Syria , Morocco ,[59] and Egypt have limited the right in various ways.[60]

5.5 - Conversion to Islam During Marriage

In interviewing left-behind parents of international custody abductions, several American women reported having converted to Islam during their marriages. Many were sincere in their conversion. However, others had been "converted" by their husbands, who provided documentation of their wives' conversion during the marriage contract ceremony. In most of these cases, the wives considered their new husbands "westernized" and did not fully comprehend the depth of their husbands' religious convictions and the implications of their conversion.

The case of one young couple consisting of a Saudi man and an American woman is illustrative. A week before the large wedding planned at his bride's Lutheran church, the Saudi student held a dinner party. He taught his bride a phrase in Arabic, a statement he said was necessary for the "luck" of their marriage. She was told to repeat the phrase and to follow his lead as an elderly Arab gentleman conducted a short ceremony during the dinner party. She was then instructed to sign two documents that were in Arabic. Trusting her fiancé, she willing obliged. The following week they were married in a Lutheran ceremony that many of the same Arab students attended. Several years later she was shocked to realize that not only had the documents confirmed her conversion to Islam, but that she had been contracted in marriage during the ceremony. The Islamic marriage contract did not provide her with the right to divorce, nor did it provide for a delayed dower payment. Her engagement ring was identified in the contract as the necessary initial dower. In this case, the young Saudi groom had succeeded in complying with his own religious conviction that his marriage be Islamic while appearing to accept the Christian ceremony.

6.0 - Divorce

Although Islam allows divorce, it is generally viewed as an undesirable but necessary means of ending marriages in which conflict between the spouses is such that continuing the relationship would defeat the very purpose of marriage.[61] Although Shari'a authorizes six forms of divorce, modern legislation in countries with Shari'a-based family law systems recognize only three: (1) talaq (divorce by the act of the husband or wife), (2) khula (divorce by mutual agreement), and (3) tafriq (divorce by judicial order).[62] It should be noted that an Islamic divorce does not take into consideration separation of marital property or child custody, and these attributes of the western secular divorce process are typically not addressed in an Islamic divorce. The following discussion will address the three main forms of divorce as they are practiced today.

6.1 - Talaq

Under Shari'a, a husband has the right to divorce his wife through talaq, or repudiation, provided that he has reached the age of majority, is sane, and is acting on his own free will.[63] A husband's repudiation of his wife may be pronounced by himself or through an authorized agent with power of attorney. A wife may also acquire the right of divorce through talaq by including this right as an additional condition in the marriage contract.[64]

A talaq divorce may be effected through any form of expression that denotes the end of the marriage. According to the Sunni schools, the repudiation may even be expressed in a metaphor so long as the intention to divorce is clear. The Shia schools, however, require the repudiating party to clearly indicate the party being divorced, and to explicitly state the intention to divorce by saying that the person "is repudiated."[65] Sunnis and Shias also differ on the formula that may be used in a divorce pronouncement. While the Sunnis allow the repudiation to be absolute, unconditional, with immediate effect, or contingent on a certain condition or future event, the Shias only recognize the absolute unconditional formula. An absolute pronouncement takes effect immediately.[66]

Two modes of repudiation exist: (1) sunna, and (2) biddat. A sunna repudiation is one pronouncement of divorce that occurs during a tuhr, a period of the wife's menstruation in which no sexual intercourse occurs. There are two types of sunna. The first, called talaq ahsan, is a single pronouncement made during a tuhr and followed by sexual abstinence for the period of iddat (discussed below). The second type of sunna repudiation, called talaq hasan, consists of three pronouncements made over the course of three periods of tuhr; the divorce becomes irrevocable on the third pronouncement. A biddat repudiation is any repudiation that does not conform to the rules of sunna repudiations. The Shia schools consider the biddat mode of repudiation invalid in most cases, while the Sunni schools consider it valid but sinful.[67]

In most cases, repudiation is revocable until the wife completes a period of iddat.[68] The iddat (also called "idda" or "iddah") is a waiting period a wife must observe after her marriage is terminated by divorce or the death of her husband. During iddat the wife is prohibited from marrying another man. If the divorce is revocable, the husband may resume marital relations with the wife without her consent.[69] Iddat's main purpose is to determine whether the wife is pregnant, thereby avoiding questions of paternity. However, it also serves as a period in which spouses may be reconciled. The iddat following divorce is generally three menstrual cycles unless the woman is pregnant, in which case it continues until delivery of the child.[70] The Druzes of Lebanon differ from the other juristic traditions in that they consider any repudiation irrevocable.[71]

Under all the juristic schools, the wife is also required to stay in the matrimonial home unless she has an acceptable excuse for leaving it.[72] This requirement may result in a man physically detaining his former wife until her iddat comes to an end. One Oregon mother who obtained a divorce through the Shari'a courts in Kuwait was locked in the pantry of her husband's home for the period of her iddat.

6.2 - Khula

Khula, or mubaraat, is a mutual divorce effected through the common consent of the wife and husband.[73] This form of divorce requires that the wife give the husband some form of compensation.[74] The compensation may be pecuniary or consist of the wife agreeing to care for the couple's child.[75] Only the Shafii school requires that the compensation be monetary.[76] Under the Shia schools, khula must be witnessed by two Muslim males of accepted probity.[77] As in talaq divorces, a wife who divorces by khula must observe iddat.

6.3 - Tafriq

Tafriq is a divorce obtained through a judicial ruling issued pursuant to a petition by a wife or husband. While most of the juristic schools today allow tafriq, they differ regarding the circumstances in which this type of divorce may be obtained. The Shia Ithna-Asharis allow tafriq only in certain cases where the husband is impotent.[78] Likewise, most Hanifi jurists accept tafriq only if the husband has a serious genital defect such as impotency or castration.[79] However, the Maliki, Hanbali, and Shafii schools allow a wife to apply to a court for divorce on other specific grounds. Modern laws based on one of these three schools generally allow a spouse to apply for divorce on the following grounds:

  • Injury or discord;
  • A defect on the part of the husband;
  • The husband's failure to pay maintenance;
  • The husband's absence without a proper excuse;
  • The husband's imprisonment.[80]

As with the other forms of divorce, a woman divorced by tafriq must observe iddat.

Continue to Part 3 - [Part 1] [Part 2] [Part 3] [Part 4]

The information relating to the legal requirements of specific foreign countries is obtained from past experience and is not necessarily authoritative. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. The author appreciates the editorial support and review of this article by the Washington office of Baker Botts L.L.P.

About the Article: Prepared for the California State Bar 2004 Winter Section Education Institute / International Law / Family Law Workshop on International Custody Abduction: Non-Hague, Islamic Countries. Reprinted with permission.