The purposes of marriage, in Islam .
The aims of Muslim marriage
The duties and trusts of marriage ..
Choosing a spouse ..
The function of the wali
Miscellaneous things you might like to know before committing to a marriage
Preparing for marriage ..
Skills for a Good Wife
Skills for a Good Husband ..
Sexual Skills
The most frequent complaints ...
Blueprint for compatibility .
Getting legally married .
Legal marriage in
the
No force or falsehood .
The Prophets (pbuh) sunnah
Making the arrangements for legal marriage .
Applying for the marriage .
(a) By certificate
(b) By certificate with special licence
(c) How far in advance may bookings be made?
(d) Documents you will need to produce for the Registrar
Your marriage cannot go ahead unless the legal formalities have been completed ..
The validation of the marriage
Polygamous marriage ...
Temporary marriage Mutah and Urfi .
How to register a Mosque for Civil Marriages ..
Registration as a Place of Worship .
Registration for the Solemnisation of Marriages .
Performing the Civil Ceremony at the Mosque
The fees for the marriage Itself
How to become an Authorised Person to act in place of the Registrar
Things which must be done when including the CivilCeremony within the Religious Ceremony
Registration
The legal effects of marriage for the woman ..
New financial effects of marriage .
Marital confidence and secrets ..
Payments to and from the bride in Islamic Law and Tradition
Dowry and Mahr
What is a dowry?
What is the Mahr?
Who owns the Mahr? Can it be refused?
How much should the Mahr amount be?
Under what conditions is it payable?
Repayment of Mahr in cases of khul divorce
Separation and Divorce
Attempting to bring about reconciliation
Legal possibilities to consider
Grounds for divorce
Adultery
Unreasonable behaviour
Obtaining evidence of unreasonable behaviour of any sort ..
Desertion or abandonment .
Separation for two years .
Separation for five years .
Costs
How to choose a solicitor
Embarrassment
How to obtain your own undefended divorce ..
Repayment of mahr in cases of khul divorce
Annulment
The grounds for annulment
(a) Void marriage .
(b) Voidable marriage ...
(c) Coercion ..
Sexual abuse ...
What you could do to help .
Some suggested nikah promises for a Muslim man
Some suggestions for the noble conduct of Muslim males .
Marriage hadiths ..
Muslim Womens Charter
Some suggested nikah promises for a Muslim woman
Some suggestions
for the noble conduct of Muslim women
The Purposes of Marriage, in
Islam.
Among Allahs signs is this, that He created mates for you from among yourselves, that you might dwell in peace with them. And He put love and mercy between your hearts. Without doubt, in this are signs for those who reflect.
(Surah 30:21).
It was not without good reason that our Blessed Prophet taught that marriage, in Islam, is half the faith. The goal of married life is much greater than just two people trying to live successfully together. It is to practise Islam within a set group of people (your family spouse, offspring, dependants), to bring about peace, love, security and happiness, and having achieved this in the microcosm of your own family, to then reach out to the world at large and spread Islam to all.
None of this just comes naturally it has to be created with love, patience and compassion, and practised without ceasing, and protected at all costs against the selfishness, laziness and temptations that will beset the relationship. We can see all around us the effects of people neglecting and abusing the family relationship. Muslims are requested by Allah to do their utmost to create happy, pious, content and secure households, and to follow the prophets sunnah as far as possible.
When the Prophets wife Aishah was asked about the way the Prophet lived at home, she replied simply: His way of life IS the Quran. He was the same beloved person, noble and compassionate, within the privacy of his home as he was in public outside it!
The Aims of Muslim Marriage.
The first and main aim of Muslim marriage should therefore be ibadah, the worship of Allah. This includes:
· believing without question that Allah is Lord, and is aware of your every thought, intention and action, and that everything you have been granted in life, even your next breath, is a gift which could be withdrawn at any moment should Allah so wish.
· Being aware that you do not know how long your time will be on this earth, or when you or anyone you love will be taken away - and therefore being noble, kind, tolerant, compassionate and generous in all your dealings.
· Performing as nobly as possible all the rituals requested by Allah which include not only the five pillars of shahadah, salah, sawm, zakah and hajj, but also, in marriage, the promises of sexual fulfilment and companionship, etc.
· righteousness and honesty in all behaviour and transactions
· offering to Allah all your deeds and words in all walks of life, in your service to humanity, productive efforts, words spoken etc.
If both husband and wife observe this main purpose, they would overcome many difficulties and shortcomings.
The second aim is to respond to the basic biological instincts and needs, for sexual fulfilment, personal companionship, safety and security, and procreation to provide the most wholesome and happy atmosphere for bringing up the next generation.
The third aim is to protect us against the social and character problems that are associated with celibacy (that is, living without sex at all by subduing the natural urges), immorality, promiscuity, illegitimacy, loneliness, and depression.
Marriage in Islam is therefore:
· a form of ibadah
· a social contract
· a means of emotional and sexual gratification
· a mechanism to reduce tension and promote happiness
· a means of legitimate procreation
· a way of encouraging good family and group solidarity
· an act of piety
The Duties and Trusts of Marriage.
The husband is charged with maintenance, protection, dealings with matters outside the home, and leadership within the family. The woman is entrusted with caring for and rearing the children, organising the home, and creating the loving atmosphere within the home.
A new husband needs to remember that his wife is not his mother she may not ever cook like his mother, or do for him the things his mother did, or think like his mother, or make allowances for him like his mother.
A new wife needs to remember that her husband is not her father he may never think like her father, make allowances for her like her father, do the things her father did, or have any of the same skills that her father had.
Fathers and mothers (God willing) love their children without reservations, and forgive them all sorts of awful conduct, and plead for them, and make allowances for them. Even if their children are awful, they (God willing) never cease to love them. They will not divorce them. On the contrary, husband and wives are new to each other; nobody has the right to be loved if they are not making themselves lovable. You cannot force someone to love you. You cannot force someone to respect you. Love and respect have to be earned both by your chosen life-partner, and also by your in-laws (who will not see you in the same light as your own parents).
Islam does offer a few rights, however:
· A Muslim woman has the right not to be pushed to work in order to gain money, although work and trade are not prohibited to her, provided such work is within the framework of modesty and does not jeopardise the happiness and contentment of husband or family.
· A Muslim man has the right to expect his wife to be faithful and loyal to him, and vice versa.
· A Muslim man has the right to be head of his household
· A Muslim woman has the right to expect the head of her household to treat her with respect and love, and not become tyrannical or a foolish spendthrift, etc.
· A Muslim woman has the right to expect her man to provide adequate funds for her housekeeping.
· Muslim men and women have the right to have their sexual desires satisfied within the marriage, since they have promised never to seek this outside the marriage. However, neither has the right to cause pain, or be abusive or inconsiderate when a spouse is tired or ill.
· A Muslim man has the right to expect his wife to care and cherish for him and their children, to protect his good name, and provide him with support and comfort.
Choosing
a Spouse
Although Allah
has granted freewill to human beings, in fact we have very little freewill in
our lives. We cannot choose our parents or families; we cannot choose our
physical characteristics or genetic make-up, we cannot choose our brothers and
sisters, or our children. If we do not like these relatives of ours, we are
stuck with them. However, there is one person we can choose and although not
a relative to start with, that person becomes our closest relative and our
nearest neighbour - we can choose with
whom we will share our lives and our physical moments of intimacy.
Therefore this choice is vitally important. If a woman is going to accept a man as the head of her own household, carry out his wishes, keep him healthy, fed and clean, and bear children to him then it is vital that she chooses someone she is able to respect, someone who will be up to the job.
Men need to be respected, and women need to be loved. It is vital, therefore, that Muslims use their freewill sensibly. It is pointless for a woman to choose a handsome free-spending man full of flattery. Try to see him ten years down the line at the parents evening. Will he simply prove vain, a spendthrift, a charming liar? It is pointless for a man to choose a woman for her pretty face and sweet helpless nature and innocent chatter. Try to see her ten years down the line will she have driven him mad with endless wittering, her prettiness have concealed a spoiled nature, her insecurity make her clinging and demanding?
This is where the business of the wali comes in.
A wali is a person trusted by the bride (or it could be the groom also) to find out all the things it is prudent to know about the intended husband (or wife) his character, his tendencies, his likes and dislikes, his faults and shortcomings (both physical and mental and social), his financial position, what his parents are like, what family commitments he already has, his mode of employment and prospects in fact anything that it would be sensible to know in advance of the marriage.
The wali should be careful to check everything out honestly and prudently. Sometimes, when a young man is given a glowing reference by his family, it may conceal their heartfelt desire to get rid of him, or see him settled comfortably.
Your parents are not necessarily the best wali for you
they may have vested interests which may or may not be to your advantage.
They may feel they are obliged to organise your marriage to a cousin or other
family member because of some ancient arrangement, or past debt. Remember that
forced and false marriages are invalid both in
In cases where the young couple are content to accept the choices of their parents, and have not seen the intended partner, they are nevertheless allowed to have a clear idea of what the intended spouse looks like physically as regards height, weight, facial beauty, hair colouring, and so on. Honest photographs are very useful. The Prophet disapproved of people being married without having not only seen each other, but seen each other enough that they might genuinely feel attracted to them, and come to see why it is they would wish to marry.
Suppose you see someone and fall in love? Be very careful love is a strong intoxicant and it can easily cloud the mind and upset rational judgement. Love is blind it only sees what it wants to see. If the intended spouse has faults, you may think you will be able to love them into giving them up and changing. Be warned faults only get worse after marriage, not better. Make sure that you really do like the person you intend to marry, and not just feel in love with them.
Muslims are reminded, of course, that beauty is only skin-deep, and can change very rapidly after childbirth, a few years comfortable living, accidents, illness, and so on. Muslims should never marry simply because of attraction to the others beauty, but marry for their piety the beauty of their characters. A polygamous man might have two wives, one very beautiful and the other plump and plain but the first could prove to be a selfish shrew, and the latter a strong and loyal comforting friend.
Two incidents of women marrying very ugly men. One said there was no fault in her husband, it was simply that he was so ugly she could not bear to live with him. The Prophet immediately allowed their divorce on these grounds alone. In the second case, a girl was asked to accept a very ugly man, and agreed to do so because it was her parents choice, and there was nothing known wrong with the man. The Prophet highly recommended her.
Muslims are also reminded that wealth should not be the reason for the marriage, a millionaire can become a bankrupt in a flash, if Allah so wills. Marry for the wealth of character instead.
However, in Islam, if there is any physical ailment or failing in the intended spouse, it is compulsory to declare it. There should be no cheating or concealment. For example, if the young man had some incurable disease, or homosexual tendencies, or aggressive, cruel streak, or past criminal record, it would be wrong for the bride not to know about it, and make a free and informed choice of whether or not she wished to take on these problems.
Miscellaneous things you might like to know before committing to a marriage.
· Is he/she a smoker?
· Is he/she a studious academic, always with a nose in a book, boring, not quite in this world?
· Does he/she prefer excitement or peace and quiet?
· Does he/she like lots of visitors, or finds that a burden?
· Does he/she expect to live with the in-laws; expect you to look after her parents, or have them to live with you?
· Is he/she tidy or untidy? Lazy? Bone idle? Never picks things up, puts things away, never shuts cupboard doors, etc?
· Is he/ she nosy, interfering, gossipy?
· Is he/ she domineering, nagging, picky, tyrannical
· Is he/she over-houseproud?
· Does he/she care enough for their appearance; or care too much/ always in front of a mirror/stuck in the bathroom?
· Does he/she have too many demanding friends; have no friends at all and if so, why; always want friends in when you wish to be alone or just with the family?
· Is he/she nicely fit, an athletics and sports freak, a complete slob?
· Is he/she capable of doing the things you expect a spouse to do gardening, home maintenance, cookery, etc?
· Does he/she have a dream ideal, that he/she may try to turn you into?
· Is he/she mean or generous?
· Is he/she a spendthrift, or a liar, or thinks nothing of cheating in business, a bully?
· Do other people actually like your intended spouse, and if not, why not?
· Does he/she have a sense of humour? A cruel and malicious sense of humour?
· Will he/she boost your self-confidence, or make you feel inadequate?
· Is he/she a religious fanatic, spends most of the time at the mosque, prays forever and ignores you and everything else?
· Is he/she a ritually meticulous type, or takes a more general, relaxed view?
· Is he/she a faultfinder or a fault-coverer?
· Can you live with each others politics?
· Is he/she a hypocrite? Does Islam stop at his/her neck, or go down into his/her heart?
· Is he/she boastful, arrogant, loud-mouthed, or modest and humble? Or too delf-deprecating? Or irritatingly lacking in confidence?
· Would he/she respect your privacy not read your diary, not open your letters, not open your handbag, or go through your pockets without just cause?
Every job, every walk of life needs skills. Most skills do not just come to us naturally we have to take the trouble to learn them. Exactly the same is true for marriage.
The young bride or groom will never be the same as their parents, although there may be similarities. They are different people entirely.
They are younger people. It is pointless expecting a young bride and groom to have all the skills and talents and expertise when they start out that it took their parents years to learn.
They are poorer people. It is pointless to
expect young folk to have the earnings and status of their elders. It will come
to them in due course, if they earn it. Dont forget in the
They are inexperienced people. The young husband taking on the responsibilities of a manager in his household, will need to learn how to manage. He would do well to go on a management course, and learn how to deal with people, how to avert trouble, how to give orders without offence, how to reward those who work for him. The young wife will need to learn how to manage her part in the household the budget, the care of the family health, cleanliness, etc.
They have been loved and spoiled, and need to learn how to earn love and respect. Your parents love you and make allowances for you simply because they are your parents. They will excuse every failing, stick up for you through thick and thin, and love you even though you are a completely horrible person. When you leave your parents and start life with your spouse, you must remember that your wife is not your mother; your husband is not your father. They will not make the same allowances for you. They will soon feel upset, offended and become critical of you, and their parents might even become their allies against you.
Helpful Checklists.
Skills
for a Good Wife:
· The ability to cook
· The ability to run a halal kitchen
· The ability to see to healthy nutrition
· Knowledge on health care
· Hospitality routines to avoid embarrassment
· Basic medical knowledge and First Aid skills
· Important telephone numbers
· How to do the cleaning
· How to deal with toilets, sick, and poo to develop a hard stomach
· How to drive
· Shopping skills where to get good bargains etc
· Money management how not to waste money
· Budgeting for household bills gas, electricity, telephone, rates, water rates
· How to carry on when exhausted
· How to be aware of your own womens problems and make allowances
(hormones, PMT, menstruation, nerves, depression, pregnancy etc)
· Sexual skills how to satisfy your husband so that he is content with your relationship
· Knowledge of childrens stresses
· Monitoring of childrens progress
· How to provide love, security, a safe haven, a place in which to grow and learn
· Garden skills caring for wild life and pets.
Skills
for a Good Husband
· Noble character, deserving of respect
· Honesty, courage, gentleness, reliability, truthfulness, good humour
· The ability to earn an honest living
· The solidness so that the family may depend on you
· The willingness to do the dirty jobs
· House maintenance for example, basic repair and woodwork skills
· Car maintenance
· Money management skills little gifts always appreciated, not irresponsible money-wasting
· Budgeting bills, and providing enough money to cover household bills
· Generous appreciation
· Being thoughtful and considerate
· Remembering birthdays and anniversaries etc
· Understanding of womens problems hormones, PMT etc
· Endurance to keep going when exhausted, especially during pregnancy, childbirth and infancy
· Sexual skills, to keep your wife satisfied with her relationship with you.
· Sexual control to learn how to deal with moments of attraction and temptation outside the home.
(The Prophet advised going straight home and having intimacy with ones own wife).
· Giving a noble example to your children by the way you treat your wife, so that they will properly respect her as a mother.
(If you are curt and rude and not affectionate or considerate, they will copy you).
Although you do not pay your wife wages as such, if you are in any doubt as to what she is worth in money terms, try to replace her services for a month with paid employees a cook, housekeeper, cleaner, chauffeur, nurse, secretary, lover etc. And vice versa.
Sexual Skills.
In Islam, even the physical act of sex can be reckoned by Allah as sadaqah. It becomes sadaqah when it is:
· halal that is, keeping within the marriage relationship and not going outside it.
· not simply leaping upon the other like an animal, but considering their needs, moods, etc.
· Being scrupulously clean. It is advisable to have a bath or shower, or at least wash private parts before sexual intimacy.
· Learning how to physically prepare your wife for sexual intercourse the car wont work properly if you dont put the petrol in. Its no good kicking it!
· putting the needs of the other before ones own. One hadith was: He is not one of us who does not satisfy his wifes need of him before he satisfies his need of her. (Hadith recorded by Imam Ghazzali).
· Learned with accuracy so that no spouse need fake satisfaction and in actual fact be suffering from severe frustration and misery. Men in particular may need to learn these skills satisfying a woman is quite different from satisfying a man; and it is usually nothing like what you see in the films. For example, it takes around 15-30 minutes of specific activity to bring the average woman to climax. But remember that not all women need this every time. Ask!
· Making sure both parties have achieved satisfaction before going to sleep. There is no point in complaining that womens sexual urges are never satisfied if you havent learned how to satisfy them, and always leave her frustrated.
· Not forcing the other partner to do anything they do not wish to.
· Not insisting on sex when the other partner is ill, in pain, or exhausted. If they are simply not in the mood, dont force do something about it. The Prophet suggested sending a messenger first he meant kisses and caresses, what these days is called foreplay.
· Overcoming shyness and distaste for what Allah has created halal for us. Private parts are not dirty unless they have not been washed.
The most frequent complaint of women about men is that they dont listen.
The most frequent complaint of men about women is that they are always trying to change them.
· Have realistic expectations. Dont expect the impossible, much less insist on it.
· Be clear about who controls the money, and what it is for.
· Solve problems together. Dont always insist on being right, which is, after all, often a matter of opinion.
· Listen, and be clear when you speak. Men are traditionally poor mind-readers.
· Ask for what you want or need.
· Give each other time together even if you have to pencil in dates! Make it regular.
· Do an MOT test list three nice things and three rotten things hes done to you, and you to him. Then discuss them.
· Fight to the same rules and have olive branch signals (or even twigs) to cease hostilities
· Agree to disagree
· Realise you dont have to be the same to be a success together; you dont do much need the ability to see eye to eye, but should know how to cope with your differences.
· Be very careful and patient in response to major changes childbirth, new job, new home, new area, retirement, bereavement, etc.
· Be committed to your partnership, not obsessed with being right all the time. Be prepared to compromise for the sake of the relationship so long as what is asked for is halal in Islam.
· Try to have similar attitudes and shared values but you dont have to have shared interests.
· Tolerate each others habits, and still love them.
· Allow each other a measure of independence for football, shopping, etc.
· Talk freely to each other, and express your feelings honestly and with assertiveness.
(Dont say things like: You always .., You never ... Use When you say/do that, it makes me feel .)
· Express your appreciation when things are done to please you.
· Support each other emotionally.
· Accept and allow the other spouse to be himself/herself. Relish your differences. Dont try to change your partner.
· Be aware of how the other expresses himself/herself and accept it.
(The answer yes to the question Do you love me? might come out Im still here, arent I? Or, I work hard, I dont play around, I fix the car what more do you want?)
· The wali must consent to the marriage
· The bridegroom must be competent to marry
· The bride must be competent to marry, and should neither be in iddah (waiting period after divorce) nor in the state of ihram (ritual purity, as for Hajj).
· There should be sighah that is (a) ijab the proposal, and (b) qabul the acceptance
· The mahr payment must be agreed.
The Shafi i school insists on the first four requirements, and requires that sighah must take place in the presence of two witnesses. The dowry should be agreed, but if it is not the marriage will be valid and the dowry determined by the court.
The Hanafi school regards only the sighah as essential. In sighah, clear words must be used, and qabul made in the same meeting where ijab is uttered.
It is mustahab (commended) to give a khutbah before the marriage rites are performed, an opportunity for advising the bride and groom of their marital responsibilities and duties in Islam. The very shortest khutbah would be Praise be to Allah and blessings and salutations be on the Messenger of Allah.
The Prophets sunnah was to recite the following verses: - 3:102; 4:1; 33:71-72.
O you who believe, have reverence for Allah as He
should be reverenced, and do not die except in the state of Islam. (3:102)
O humanity, give reverence to your Lord Who created you from a single soul, and created of like nature its mate, and from these two spread countless men and women like seeds. Have reverence for Allah, through Whom you expect your mutual rights, and have respect for the wombs that gave you birth for Allah is ever watching over you. (4:1)
O believers, have reverence for Allah and always
direct your words to the right, that He may make your conduct whole and sound,
and forgive you your sins. Those who obey Allah and His Messenger have already
attained the highest achievements. (33:71-72)
The Prophet would then make some short dua prayers on behalf of the couple. For example:
May Allah bless you, and may blessings be upon you,
and may your coming together be blessed, and increase goodness.
It was strongly recommended that the bridegroom should then host a public walimah (marriage feast and celebration) for friends and well-wishers, on the day following the marriage. All schools regard this as sunnah mu akkadah (a binding sunnah). However, as always in Islam, extravagance and ostentation is disapproved.
Legal Marriage in
the
If you wish to
marry in
To be legally valid, a marriage must be
· voluntary
· between two single people
· between people who are over sixteen
· between people of the opposite sex, and
· between people who are not too closely related.
There is no such thing as homosexual or gay marriage. Homosexuality is forbidden in Islam, and whereas one can have every sympathy with cases where this has been caused by genuine genetic disturbance, it is nevertheless regarded as a perversion and a sexual relationship outside marriage.
(Where a person is homosexual, or has homosexual tendencies, but does not actually have a physical relationship with anyone of the same sex they have committed no sin, but rather have earned blessings and hasanat for their self-control and sacrifice just as those with strong sexual urges control them by not seeking sexual relationships with anyone outside their marriage, no matter how tempted they might be).
The civil ceremony can take place at a register office, or any other non-religious premises that have been approved by the local authority for marriages (for example, hotel, stately home).
The civil ceremony can also take place in any place of worship which has been formally registered by the Registrar General for Marriages. Any mosque can get itself registered details are given later.
No
Force or Falsehood.
· Both man and woman must be
acting voluntarily. Force, fear and duress will all invalidate the
marriage, both in
·The marriage is invalid if one of the couple did not realise what he or she was doing, for example through
drunkenness, old age or deliberate deception such as a girl being made to sign
papers she does not understand.
·If there is a mistake as to
the identity of the other partner the marriage is invalid. Other mistakes,
however, do not invalidate it things such as being mistaken as to the
partners financial standing, social status or career prospects.
·Neither party can be
already married. They must either be single,
widowed or divorced. If either is already married at the time of the ceremony,
the marriage is void and the offence of bigamy will have been committed. If the
bigamist duped a woman maliciously or fraudulently, she is entitled to
prosecute. Normally the police do not prosecute these days if the sole purpose
of the bigamous marriage was to allow the couple to live together respectably
as man and wife. When a person has been married, but long separated from a
previous spouse, the court should be asked to grant a decree of presumption of death and divorce, or to grant a divorce based on the grounds of five years
separation. Unless such an order is obtained, there is always a risk that
such a marriage will be bigamous. A bigamous marriage is null and void, as if
they have never married.
·Since 1929 the minimum age
for marriage in the
·Homosexual or lesbian marriages have no legal validity. Nor do
sex-change marriages.
·Certain family relationships are prohibited degrees. In these cases marriage is prohibited in
A man may not marry his mother, daughter, grandmother, granddaughter, sister, mother-in-law, stepdaughter, daughter-in-law, grandfathers wife, wifes grandmother, wifes granddaughter, grandsons wife, aunt or niece.
A woman may not marry her father, son, grandfather, grandson, brother, father-in-law, stepson, son-in-law, grandmothers husband, husbands grandfather, husbands grandson, granddaughters husband, uncle or nephew.
In addition to these
Forbidden to you
for marriage are: your mothers, your daughters, your sisters, your paternal
aunts, your maternal aunts, daughters of your brothers, daughters of your
sisters, your foster-mothers, your foster-sisters, the mothers of your wives,
your stepdaughters under your guardianship from those wives with whom you have
consummated your marriage,(no prohibition if you have not consummated that
marriage); the wives of your sons that proceeded from your loins; or two
sisters in wedlock at the same time, except for what happened in the past for
God is forgiving, most merciful. Also prohibited are women already married,
except those whom your right hands possess; thus has Allah ordained
prohibitions against you. Except for these, all others are lawful, provided you
seek them (in marriage) with gifts from your property, desiring chastity not
lust. Seeing that you derive benefit from them, give them their dowers as
prescribed; but if after a dower is prescribed you agree mutually (to vary it)
there is no blame on you; God is all-knowing, all-wise. If you have not the
means to wed free believing women, they may wed believing girls from among
those whom their right hands possess; and God has full knowledge about your
faith. You are one from another; marry then with the permission of their
owners, and give them their dowers according to what is reasonable they
should be chaste, not lustful nor taking paramours; when they are taken in
marriage, if they fall into shame their punishment is half that of free women.
This permission is for those among you who fear sin. But it is better for you
that you practise self-restraint. And Allah is Oft-Forgiving, Most Merciful. (Surah 4:23-25).
Marriage to
cousins is allowed, but not recommended. It is also not recommended to marry
your husbands brother unless your husband dies (or wifes sister).
·Polygamous marriages. No
marriage that takes place in the
parties is already married. Such a marriage is void, and also bigamous. However, it is
understood that Muslim cultures allow a man to have more than one wife, and the
question then arises of whether
(i) They took place in the Muslim country of origin
(ii) They complied with the laws of the country where they took place
(iii) The spouses were capable of marrying (ie not within the prohibited decrees etc) according to the laws of their respective countries.
Anyone in doubt should seek legal advice.
The Prophets Sunnah.
The Prophet presented two sunnat firstly, he married an older woman and took no other spouse while she lived a total of twenty-five years. Had he married a younger woman, as was traditional, there would probably have been no sunnah of polygamy at all. Allah knows best.
His second sunnah was to marry polygamously, for various reasons, after his first wife had died. He contracted marriages with at least thirteen other women. The Quran set the limit of four wives for other Muslim men. (Surah 4:3).
The Prophet did marry two of his cousins Umm Salamah bint Abu Umayyah and Zaynab bint Jahsh, but these were not his first choices, and the marriages were undertaken for various reasons.
There was no suggestion that marriage to a virgin was in any way preferable to marriage to a widow or divorcee. Only two of the Prophets wives were virgins Aishah bint Abu Bakr, and Maryah Qibtiyah. All the rest were widows or divorcees, many of them with existing children.
This will depend
on the type of ceremony you wish to have and where you wish to marry. Two types
of marriage are valid in the
The normal nikah ceremony, although valid in the
Islamic sense, is not a valid marriage on its own in the
It is not
necessary in the
If you wish to have a religious ceremony, and you want the civil marriage to take place at the same time as the religious ceremony, you should first check whether your mosque has in fact been registered both as a place of worship and for marriages. If it has qualified, paid the fees and gained the authority, then you can arrange to see the Imam or other registered person in charge of marriages at the mosque. The mosque in question should normally be in the registration district where you or your partner live. You still have to give formal notice of your marriage to the superintendent registrar of the district where you live. A visiting registrar may need to be booked.
The
Legal Formalities.
Applying for the marriage.
You and your partner must attend personally at the register office for the district where you live to give notice of your marriage to the superintendent registrar. This may not be done by your parents, wali, or representatives.
You may choose one of two ways to register the marriage. Both require a fee.
1.By Certificate.
This is the normal procedure for couples seeking marriage.
· both of you must have lived in a registration district in England or Wales for at least seven days immediately before giving notice at the register office.
· If you both live in the same district you only need to give one notice. If you live in different registration districts then each of you will need to give notice in your own area.
· After giving notice you must wait a further twenty-one days before the marriage can take place. For example, if you give notice on 1st July the marriage may take place on or after 23rd July.
· The fee for this notice is £23.
2. By
Certificate with a special licence.
This speeds things up, but is a lot more expensive.
· One of you must have lived in a registration district in
· Your partner only needs to be a resident of, or be physically in
· After notice is given the marriage can take place after one clear day, excluding Sundays, Christmas Days or Good Fridays. For example, you can give notice on a Tuesday and be married on the Thursday.
· The fee for this licence is an additional £46.50 over and above the set £23 a total of £69.50.
How far in advance may bookings be made?
A notice of marriage is valid for twelve months. Therefore you may not book any earlier than twelve months before the date of your intended marriage. However, the sooner you arrange to book the marriage, the more likely it is that you will get the date and time of your choice. Certain times of year are very busy indeed. You may be able to make a provisional or advance booking, and the superintendent registrar will give you more precise information if you need it.
Documents you will need to produce for the Registrar.
When you go to the superintendent registrar to make the formal arrangements you will need to produce certain documents.
· If you have been married before you should produce evidence to confirm that you are now free to marry - a decree absolute of divorce bearing the courts original stamp.
· If your husband or wife died, you should show a certificate of their death.
· You will be asked to produce documents which confirm the use and spelling of your name preferably a current valid full passport (or a Home Office Travel Document, a Standard Acknowledgement letter, or a national identity card). Photocopies are unlikely to be acceptable. If you are not able to produce any of the above documents, the registrar will explain what other documents may be acceptable usually two documents such as cheque book, cheque guarantee card, store/credit card or birth certificate.
· If one of the partners is over sixteen but under the age of eighteen, a signed consent from the parent(s) or guardian(s) may be required.
Your Marriage Cannot Go Ahead Unless the Legal Formalities Have Been Completed.
Notice of marriage must be given in person to the registrar by
you or your partner. No-one else can do so on your behalf. (Note: A womans
silence, or lack of protest, is not taken as consent in
The registrar must be satisfied that neither husband
nor bride is being coerced, forced, blackmailed, or subjected to any other sort
of pressure, and wishes to marry of his or her own free will. Any marriage brought about by force or any other coercion is null
and void in
On the day of
your marriage you will need to bring
with you at least two other people who are prepared to witness the marriage and
sign the marriage register.
The
Validation of the Marriage.
The normal
mosque nikah ceremony, although valid
in the Islamic sense, is not a valid
marriage on its own in the
For the marriage
to be properly valid in the
If any of the intended partners, or a relative, or an Imam attempted to coerce either spouse into resting content with the nikah religious ceremony, they would be acting in direct opposition to the sunnah of Islam, which is to have proper legal contracts, declared publicly, before witnesses. Persons most likely to be harmed by avoiding the civil registration would be the wives, who would only then have the status in the UK of common law wives or unmarried partners a status forbidden in Islam. The children would be illegitimate. No Muslim man should wish to put his spouse or offspring in such a dishonourable position. A Muslim man doing so would certainly be accountable for this in the Life to Come, even if they got away with it on this earth.
Polygamous Marriage.
Although this is permitted in Islam, it is a pre-Islamic practice (like slavery), which was not banned outright but made subject to various limitations. Before the coming of Islam polygamy was the normal practice for men who could afford it. Women were not allowed to have more than one husband at once, but women many married and divorced numerous times. In Islam, in situations where there were large numbers of widows with little provision for themselves and their children, polygamy was encouraged up to the limit of four wives, in order to help vulnerable Muslims who had got into a difficult situation.
The first rule in Islam, of course, is that no Muslim should ever act in a way that would deliberately hurt another; on these grounds alone many consider polygamy to be impossible in virtually all other situations. It should therefore only, ever, take place with an existing wifes permission, without causing her hurt or dismay. If the marriage to the original wife has broken down, then honourable divorce is perfectly permissible. However, in some societies an existing wife might perhaps choose to remain with her partner, even if he wished to marry another wife, rather than re-start life on her own or be obliged to return to her parents or find another spouse.
Allah allowed polygamy only on the terms that each wife was treated equally as regards lodging, food, clothing and time spent with her.
And if you fear that you shall not be
able to deal justly with the (female) orphans, marry women of your choice, two,
three or four; but if you fear that you shall
not be able to deal justly with them, then only one. Or (a woman) that
your right hands possess. That will be more suitable, to prevent you from doing
injustice. (Surah 4:3).
If such treatment was impossible, then polygamy was forbidden.
In the
All parties are
expected to tell the truth, and not commit perjury. It is not expected that a
Muslim person would lie, for that is totally haram. For example, if a Muslim man has a previous wife in
Marriage in the
If a Muslim man
wished to involve himself in an illegal marital relationship with a woman in
the
It is highly debatable whether a simple religious ceremony performed by an Imam would cover the requirement in the eyes of Allah that there should be no sexual relationships outside honourable marriage. That is a matter that would be left to the consciences of all concerned.
One of the main areas of concern, and the most likely reason for the refusal of a Muslim man to divorce his wife back home, is the fact that he probably also has children by her out there and is still responsible for their upkeep. Secondly, it may be much more socially acceptable out there for the first wife to remain married, even if the marriage is no more than in name by now, rather than be branded as a divorced woman, and perhaps lose not only her status but also her home and protection, and her children by him to also lose their status and respect.
However, although an Imam might understand the motivation, it is highly debatable whether he should condone it, or acquiesce in it. In Islamic law, a husband should not abandon a wife for an unreasonable length of time, for any reason even if it is to gain employment and wages abroad. The generally accepted length of time a wife can be asked to exist without her marital relationship is four months. One of the caliphs ruled that one reason why polygamy was limited to four wives was that a wife should be able to expect her husband to fulfil his sexual obligation to her at least once every four days.
Temporary
Marriage Mutah and Urfi.
It is known that at the time of the Prophet many people contracted temporary marriages. These occurred when a man with a strong sexual appetite was away from home for some reason, such as long stay in another place, away in battle, away at university, away on a work contract elsewhere, etc. Rather than just sleep around, a temporary union was given some sort of validity by payment to the woman for her agreed services for an agreed length of time. The Prophet at first had no revelation to condemn the practice, but it was soon over-ruled by the revelation that no Muslim should have a sexual relationship outside proper marriage.
A Mu tah marriage is by agreement between a man and woman, for a specific period of time, on the payment of a mahr (see Mahr section), which in these cases really acts as a fee for services rendered. The practice of Mu tah marriage still takes place, largely in Shiite Muslim societies. Some scholars argue that it is still legal; but the vast majority of Muslim scholars regard it as little more than a form of prostitution, especially when such a marriage may be contracted for just a few hours!
An Urfi marriage is similar, a practice of some wealthy Muslim business men travelling abroad from their own countries. Girls are bought for an agreed price, and paid off when the visitor leaves. Since some of these men are extremely wealthy, money is no object.
Both practices
are in direct opposition to the sunnah and spirit of Islam, and are in any case
completely illegal in the
Guidance for Imams
The following five-point plan is suggested for Imams to consider prior to a marriage for which they are responsible:
· Arrange to meet the prospective couple, and make absolutely certain that they are both genuinely happy to get married
· Have the courage and integrity to be prepared to take on the parents of the prospective couple if you are in any doubt about the free agreement of either of them to the wedding
· Provide some sort of basic guidance for their marriage
· Ask the couple if they have discussed with one another things they hold as important, and encourage these issues to be aired while you are present with them, or on some other occasion prior to the marriage. You could perhaps use some of the suggested questionnaires in the booklet to check their compatibility with each other
· Remind the couple of their life-long commitment, their rights and duties and responsibilities towards each other and the new families they will (inshaAllah) create.
Procedure
for Marriage.
It is not necessary to have the religious and civil ceremonies together at the same event. Some Muslims might like the two to be performed together, others might not. For example, if the civil ceremony is to be performed at the religious ceremony, then it must take place between the hours of 8am and 6pm. Civil ceremonies cannot be performed at other times by registrars. Therefore, for example, an evening civil wedding is ruled out.
If you wish to have the two ceremonies separately, the best procedure is to have the civil ceremony and registration first, before the mosque ceremony, although this is not compulsory, and it can be done the other way round. The time between the two ceremonies should preferably be as short as possible.
Alternatively, the mosque ceremony may be organised so that it includes the civil ceremony if the mosque has been officially registered firstly as a place of worship, and secondly as a place for civil marriages.
How
to Register a Mosque for Civil Marriages.
· If a mosque wishes to be allowed to include the civil ceremony, it must be properly and legally registered with the General Register Office, firstly as a place of worship, and secondly as a place of marriage.
· There are separate forms and fees for each application. This applies whether it is a purpose-built mosque, a building converted from into a mosque, or a house-mosque. All are eligible to be registered with certain conditions and paperwork, and a fee.
· The telephone number of the General Register Office is 1051 471 4803, Monday to Friday between 9am and 5pm. The normal procedure, however, is to apply at your own local Register Office, who will issue the necessary forms, and will then present your application themselves to the General Register Office on your behalf. You can get the telephone numbers for your local Register Offices from telephone directory enquiries.
Registration
as a Place of Worship.
You must apply to the local superintendent registrar for the two copies of Form 76 for your mosque to be registered as a place of worship. You will need to supply:
· A floor-plan of the building. This does not have to be a professionally drawn plan, or to scale, but must show all the rooms, doorways, floors, staircases and washrooms. It should be as accurate as possible. Many mosques have architecture students in their ummah, who could do this service.
· An average weekly time-table of all regular activities at the mosque for example, madrassah school, times of worship (you could append a printed prayer-timetable for one month with a note of explanation that the times vary according to the seasons), lectures, regular meetings, youth club, etc.
· A list of the uses of the mosque, including non-religious uses such as social clubs and functions, feasts, bazaars, training sessions, etc. This should also include any activities not run by the congregation. It is to satisfy the Registrar General that the building is primarily used as a place of worship.
· The fee. The cost of this registration is £28.
Once your application has been received, an inspector will be sent to check out the building, and go through any details necessary. If all is satisfactory, you will be supplied with the certificate of registration.
It is a good idea to make sure you have adequate safety precautions, heating, lighting, toilet facilities, and first aid facilities, with insurance and certificates of safety.
Registration
for the Solemnisation of Marriages.
Once the mosque has been legally registered as a place of worship, if it is wished that civil wedding
ceremonies take place there, then the mosque must also apply to be registered for marriages. This requires another form to be filled in, and the fee for this registration is £120.
Thus, the total bill for registration both as a place of worship and for marriages, up to the present (1999), is £148. This is a once-for-all payment, and nothing further is required in future years.
You will need two copies of Form 78, which can be obtained from your local registry office. These must be signed by twenty householders who regard the mosque as their usual place of worship. A householder is any person who resides at an address and has either sole or joint responsibility for that household. The forms must also be countersigned by a trustee of, or the proprietor of, the actual building.
If the congregation stops using the building there is a legal obligation to let the Registrar General know. You should get Form 77 from the superintendent registrar, which can be signed by any person who can represent the congregation. The completed form should be returned to the register office.
If the building is demolished and then rebuilt on the same foundation within a year of the demolition, and used by the same congregation, the certificate of registration will not be affected. The local superintendent registrar should take custody of the registers and certificates until the new building is ready.
If the same foundations are not used, or you stop using that building and start using another one, or the rebuilding has taken longer than twelve months, then Form 77 must be completed for the original building, and you then need to re-apply for the new building to be registered.
If there are structural alterations to the building, you should send a new floor-plan of the whole building to the Marriage Section at the General Register Office, clearly indicating the new layout, and say what the various areas are now used for.
If you wish to change any of the recorded details you should put in writing what the change is and why you want it made. The letter must be signed by two trustees of the building and sent to the Marriage Section at the General Register Office.
Address: Marriages Section, the General Register
Office,
Telephone: 0151 471 4803.
Performing the Civil ceremony at the Mosque.
Once the mosque has been registered both as a place of worship and for marriage, the civil ceremony may take place there, and it is no longer be necessary to go to your local registry office for the civil formalities.
Two separate scenarios are possible.
(i) The Imam organises the event, and includes the attendance of a local registrar to deal with the registers and certificates. It is then possible for the Imam and the Registrar to both play their part in the wedding procedure at the same event. The fee for a visiting registrar is £36.50.
(ii) The second scenario is for the Imam himself to act as registrar, or to have arranged for some other person at the mosque to be their own authorised person for the registration of marriages. This application may be made one year after the mosque has been successfully registered for marriages. After one year as a registered building, the building may have its own authorised person, either the Imam or any other designated person, male or female, who would be issued with the duplicate registers, the certificates, and any other documentation required. The authorised person would also be issued with full guidance in a booklet from the General Register Office. Each mosque may choose whether it wishes its own Imam to act as registrar, or whether it would be preferable to have some other person to fulfil this function. In the latter case, the Imam would deal with the religious ceremony, and the authorised person would see to the civil formalities and the signing of documents.
The
Fees for the Marriage Itself. (These were the prices in the year 2000. Changes are inevitable)
There are various fees involved, which are statutory throughout the country. The fee when anyone makes an application for marriage is £23.
If a registrar comes out to a mosque for the ceremony, the statutory fee is £36.50. If the Imam or other authorised person acts as registrar, the fee charged will be set by that person. Sadaqah is always appreciated. It is unIslamic for an Imam or designated person to overcharge, and unIslamic for the persons marrying to ignore their time and efforts, and expect to pay nothing.
If the marriage is taking place by special licence less than twenty-one days after the notice of application, a further £46.50 is payable.
The marriage certificate has to be paid for. One certificate is £3.50.
If duplicate certificates are requested perhaps to have a document to send to families abroad, or whatever reason if the duplicates are ordered on the spot at the wedding they will also be issued at £3.50 each. If they are requested later, the fee will be £6.50 each. There is no limit to the number of copies you may request, or time limit for making the request if you suddenly need a copy even years later (kept records go back to 1837!)
Therefore, the normal cost to the bride and groom is £23 + £36.50 + £3.50 = £63;
the normal cost to the bride and groom of the special licence speeded up version is £23 + £46.50 + £36.50 + £3.50 = £109.50.
Any other
expenses such as hire of the premises, special transport, food, flowers etc are
extras. In the
How to become an Authorised Person to act in place of the Registrar.
Application is made to the General Register Office
telephone 0151 471 4803, Fax 0151 471 4523, address: General Register Office,
Before electing any such person, the intended person
must have studied and considered all the functions and obligations, and be
satisfied that they have the intelligence, skills and adequate social manner to
carry them out.
The intended person must be able to understand and
speak English; must have neat writing; must be able to spell accurately and
produce neat and legible certificates; must be prepared to safeguard the
necessary equipment and storage facilities; must be prepared to let no other
person have access to them.
It is pointless and irresponsible to attempt to
appoint a person who does not have the necessary skills, commitment and moral
standing.
No person should attempt to act as Authorised Person
until his or her appointment has been duly certified to the Registrar General,
and they have been informed by the Registrar General that their certificate of
appointment has been received.
If an authorised person changes his or her address, they should at once notify the Registrar General of the new address, and the district in which the building for which they are authorised is situated.
On the death, retirement, removal to another district, or vacation of office of the authorised person, the trustees or members of the governing body of the mosque must at once inform the Registrar General and also give notice of what arrangements are being made for the appointment for the successor, and for the solemnisation of marriages during the interval. They must make sure the outgoing authorised person is made aware that their appointment is being cancelled and is therefore no longer valid.
Things
which Must be Done when including the Civil Ceremony with the Religious
Ceremony.
The duties of the registrar or the authorised person are not confined to the making of entries in the marriage registers. It is their duty to ensure and check that the legal requirements are met as regards
· the preliminaries to the marriage,
· the authority for the marriage and
· the solemnisation and registration of the marriage.
· Failure to comply with these legal requirements could lead to doubts about the validity of the marriage, and cause great distress to those concerned.
· A valid ceremony cannot take place even in a registered building in the presence of an authorised person until the superintendent registrar has issued the authority for the marriage. This is in the form of the certificate or certificate and licence, which the couple should already have seen to and paid for.
· The certificate, or certificate and licence, must be produced to the authorised person for inspection before the marriage, so that he or she may be satisfied that the marriage can be lawfully solemnised in his or her presence. If they are not in order, the authorised person must refuse to allow the marriage to take place.
If the registrar is not present himself or herself, it is essential that the following persons are present throughout the whole ceremony, otherwise the marriage is not valid:
· the authorised person
· two witnesses
· both parties to the marriage.
The civil marriage ceremony must be seen to be part of the religious ceremony. Any attempt at secrecy is regarded as highly suspicious, and is against the sunnah of Islam.
The registrar or the authorised person must be present at the entire religious ceremony, and make sure that the words and declarations of the civil marriage are freely declared in front of all present.
The bride and
groom must both come, together, and
both of them say their words and declare their oaths in front of the witnesses. The marriage is not valid if the bride is not present herself. The Islamic
concession of a bride not attending so long as two genuine witnesses are
present on her behalf is not valid in
The authorised person must make sure that in the presence of those persons and in the presence of each other, the parties themselves speak in English the words of declaration and contract required by Section 44(3) of the Marriage Act 1949. The couple must choose one of the following declarations:
· I do solemnly declare that I know not of any lawful impediment why I (give name) may not be joined in matrimony to (give name), or
· I declare that I know of no legal reason why I (give name) may not be joined in marriage to (give name), or
· by replying I am to the question Are you (give name) free to marry (give name)?
Then each must say to the other one of the following statements:
· I call upon these persons here present to witness that I (give name) do take thee (give name) to be my lawful wedded wife (or husband), or
· I (give name) take you (give name) to be my wedded wife (or husband).
These words of the civil marriage ceremony must be used. They must not be altered or deviated from in any way.
It does not satisfy the requirements of the Act for the man and woman to speak these words before or after the religious ceremony; they must be spoken during the religious ceremony itself, and the authorised person must be satisfied that the couple understand the words, and that the congregation witnessing the marriage has heard them.
If one or both parties has difficulty in understanding or speaking the English language, the above words should also be spoken in their own language or dialect so that the authorised person may be assured that they fully understand the purport of the words and the contract of marriage they are making. This may be done with the help of a friend or relative who has the ability to act as interpreter.
Both parties to
the marriage must be present in such a way that each is able to plainly identify the other, and that both are able to
be identified by witnesses.
Registration
Immediately after the marriage the authorised person
must:
· enter the details of the
marriage into the duplicate registers provided by the Registrar General
· issue the couple with
their marriage certificate.
The entries in the registers are intended as a true
and permanent record of the marriage, and must be completed neatly and
correctly. Ink of archival quality must be used so that there will be no
fading.
The certificate is issued as an accurate copy and is
accepted in law as proof that the marriage took place. This must therefore also
be completed neatly and correctly. Ink of archival quality must be used.
Further copies may be obtained at the marriage (£3.50) or later (£6.50), on
payment of the appropriate fee. Xeroxed copies are not valid as proof.
The authorised person is responsible for the safe
keeping of the marriage registers and the stock of blank certificate forms. A
strong fire-resisting safe, ideally with dimensions of no less than 12x18
inches must be provided, in which all documents are to be kept.
No-one may be allowed access to the registers for
any purpose whatsoever unless the authorised person is also present.
Every quarter year the authorised person must submit
returns of certified copies of entries made in the quarter to the
superintendent registrar of the district in which the building is registered.
The Inspector of Registration from the General
Register Office may visit an authorised person from time to time, and must be
given access to the marriage register books in the authorised persons custody.
He will report to the Registrar General as to the manner in which the entries
have been made and the arrangements for the safe-keeping of those registers.
Section 44(5) of the Marriage Act 1949 empowers the
Registrar General to refuse to allow any registered building to be used for the
solemnisation of marriages without the presence of a registrar if he is not
satisfied that sufficient security exists for the due registration of marriages
by an authorised person, and for the safe custody of the marriage registration
stock in the building.
The Legal effects of Marriage for the Woman.
In Islam, Muslim men are given the position of
authority in the household, as the provider of funds, and the wifes qawwam
(protector and maintainer). The word guardian is not a good
translation, as it implies that the woman needs a person in authority over her,
who is responsible for her and her decisions. In Islam, she is responsible to
no-one except Allah, and if her husband expects her to do anything contrary to
the known will of Allah, she is obliged to refuse him.
Allah, in the Quran, states: Men are the qawwam (protectors and maintainers) of women because Allah
has made some of them to excel others, and because they support them from their
means. (Surah 4:34).
Among other things, the newly married couple have a
duty to maintain one another, to live together, and to share the same bed.
· A new name? On marriage, a woman may change
her surname. This is only tradition, and there is no legal obligation upon her
to do so, either in Islam or in
· A new nationality? No. Nationality is a political
status of an individual, and this is not affected by marriage. A British
national who marries a foreigner remains British.
· A new domicile? This is where a person has his
permanent home or, if he is living abroad, where he intends to remain
permanently. Residence is the place where a person happens to be living; a
person can be resident in several countries at the same time, but can only have
one domicile. At birth, a baby normally acquires its fathers domicile, or the
mothers if the father is dead. It is very difficult to change that before the
child is sixteen, but thereafter the individual may choose. Although a wife may
not acquire her husbands domicile on marriage, it is usually the case that she
will live with him and plan to spend her life with him in his domicile. Thus
she will normally acquire that new domicile.
· A new passport? The bride may obtain a new
passport in her married name, and in practice often obtains one before the
wedding takes place (if she is planning a foreign honeymoon), although she must
agree to surrender it should the marriage be cancelled. An existing passport
can be altered to her new name by sending it and the marriage certificate to
the Passport Office. They will amend the passport to show her new name. The
wife is not obliged to change her name. She may choose to continue with her
existing passport until it expires. Then her new passport will give her married
name, if she has chosen to adopt it and has not retained her original name.
· A new bank account?
If the bride has adopted her husbands name, she should make sure that
her bank changes her account name. The couple may consider opening a joint
account, but it should be realised that if the marriage fails the money in it
will quite likely be shared equally between the couple. If the wife is
financially dependent upon the husband, she would be advised to ask for a joint
account, and vice versa.
· A new home?
Married couples are obliged to live together and to give each other the
benefit of their comfort and support; the legal phrase for this is consortium. However, the law regards
either spouse as being free to leave if he/she wishes, but by doing so, that
spouse will be in desertion and may be liable to be divorced and ordered to pay
maintenance to the other. In practice, many women cannot just leave the home as
they are financially dependent upon their husbands and need a home for
themselves and their children. Who chooses where to live? Normally, it is the
need to be near the breadwinners place of work that will decide the issue. In
practice it is usually the man who has the final say, and if the wife refuses
to move with him to a new workplace she may well be in desertion.
· A new mortgage?
If a couple buy a house, it is advisable if it is in the name of both
parties and fully insured so that if one passes away, the house automatically
becomes fully paid for, and remains in the name of the surviving spouse.
· A new bedfellow?
By marrying, the couple agree to have sexual intimacy with each other.
The concept of reasonableness prevails in this matter, so, excessive demands
for sex or a virtual refusal to have sex will be considered unreasonable and
may justify a petition for divorce on the grounds of unreasonable behaviour.
It all depends on the circumstances. A refusal of sex by an invalid may be
reasonable, but by a healthy virile person unreasonable. So also will be the
insistence on always using contraceptives so that the couple will never have
any children. If the marriage is never consummated, it may be annulled.
· New in-laws? Sometimes the new bride is expected to live with the
bridegrooms parents, or vice versa. All Muslims concerned should think this
through with kindness and compassion. Sometimes living with in-laws can cause
enormous stresses and pressures, especially if there is not much room for
everyone. It is not always a good idea for a new wife to be obliged to live in
another womans home, where she could feel little more than a servant. On the
other hand, Muslims have duties to care for their parents. It is not
compulsory, however, to live in the same house.
New Financial Effects of Marriage.
Marriage may result in:
· New tax arrangements. There are different
allowances for married persons, and the date of the marriage will affect that
liability.
· New entitlement to DHSS benefits. The wife is normally
eligible for national insurance widows benefit and other benefits if her
husband dies before her.
· New inheritance rights. If a married person
dies without leaving a will, then most of his or her possessions will pass to
the surviving spouse. If there is a will, but little or nothing is left to the
spouse, the court can intervene and over-rule it. If a Muslim couple wish to follow the Shariah guidelines for inheritance,
then they should leave a will stating this, and their wishes will be upheld.
· New credit rights.
A wife may be able to make her husband liable to pay some of the
household bills she incurs. A good Muslim man should pay them anyway, as part
of his duty.
· New property rights.
Both husband and wife will be able to claim a share in their joint
assets. Make sure the home is registered in the names of both husband and wife,
and fully insured.
· Maintenance.
In the
Marital Confidence and secrets.
Most married people tell one another things they
would not tell other people. If necessary, these marital confidences and
secrets will be respected by the courts. Thus, in a criminal trial, the husband
or wife of the accused cannot be called to give evidence for the prosecution,
or compelled to give evidence for the defence. In civil cases, where
spouses are subpoenaed to give evidence, the judge will excuse the spouse from
answering questions if to do so would breach marital confidences.
Here is one interesting hadith from Abu Dawud,
No.891.
The agreed version begins: He then said: Is there
any man among you who approaches his wife, closes the door, covers himself with
a curtain, and he is concealed with the curtain of Allah? They replied: Yes. He
said: later he sits and says: I did so-and-so; I did so-and-so. The people kept
silence. He then turned to the women and said (to them): Is there any woman
among you who narrates it? They kept silence. Then a girl fell on one of her
knees. The narrator, Mu'ammil, said in his version: a buxom girl.
She raised her head before the Apostle of Allah
(peace be upon him) so that he could see her and listen to her. She said:
Apostle of Allah, they (the men) describe the secrets (of intercourse) and they
(the women) also describe the secrets (of intercourse) to the people. He said:
Do you know what the similitude is? He said: The likeness of this act is the likeness
of a female Satan who meets a male Satan on the roadside; he fulfils his desire
with her while the people are looking at him. Beware! The perfume of men is
that whose smell becomes visible and its colour does not appear. Beware! The
perfume of women is that whose colour becomes visible and whose smell is not
obvious.
Abu Dawud said: From here I remembered this
tradition from Mu'ammil and Musa: Beware! No man should lie with another man,
no woman should lie with another woman except with one's child or father. He
also mentioned a third which I have forgotten. This has been mentioned in the
version of Musaddad, but I do not remember it as precisely as I would like. The
narrator, Musa, said: Hammad narrated this tradition from al-Jarir from Abu
Nadrah from at-Tufawi.
Payments to and from the Bride in Islamic Law and Tradition
Dowry and Mahr
In the first era of Islam marriage was a simple
affair, without pomp or ceremony. Any expenditure incurred in its performance
was quite minimal, and not a burden on either family. Indeed, the Prophet
stated: the most blessed marriage is one in which the marriage partners place
the least burden on each other. (al-Haythami, Kitab ab-Nikah, 4:255).
Nowadays, much difficulty and hardship can be caused
by the setting and giving of dowries, bride-prices and mahr not to mention
enormous wedding feasts and celebrations in some cultures which bring a most
unreasonable financial burden on the families concerned. Financially crippling
celebrations are totally in opposition to the spirit of Islam, and are not
necessary. They are purely a matter of the culture of certain regions. No Muslim should feel obliged to continue
these unIslamic traditions, or be embarrassed about breaking with their old
cultural traditions.
It is very important that Muslims themselves realise
that there is an enormous difference between dowry, bride-price and mahr. Many books and articles on the subject confusingly use
the word dowry to mean mahr, but in
fact the correct word for dowry is jahaz,
and its function is totally different.
What is a dowry?
The custom of giving dowry (jahaz) is not part of Islam, although it actually seems to be on
the increase among several Muslim cultures, notably those of Indian, Pakistani
and Bangladeshi origin, even when they have settled in the
A bride-price is either :
· an amount of money,
goods or possessions given to the bride by the brides family at the time of
her marriage, in order to attract a good husband for her. It would in effect
become the property of the husband or his family upon his marrying her. This is
a totally unIslamic practice. In Islam, women are not owned by their families
and should not be traded with in this manner. It is an insulting practice. Or
· an amount of money
demanded from the bridegroom or his family by the bride or her family, usually
the brides father, without which the daughter will not be given in marriage.
In the jahiliyyah society before Islam, this money was regarded as the property
of the girls guardian.
The matters of fathers giving the bride gifts of
money or property, or paying for an enormous wedding feast, or providing a
home, or setting her up in her home with furniture and household effects are
left to the discretion of the people involved in Islam. The Prophet himself saw
to the marriages of his four daughters. He gave his daughter Fatimah various
gifts when she married Ali b. Abu Talib, but there is no record of his having
given anything to his other daughters on the occasion of their marriages. Had
such gifts been a recommended sunnah,
he would surely have given the others gifts as well. Moreover, the gifts given
to Fatimah were extremely modest household articles a sheet, a leather
water-bag, and a pillow stuffed with grass and fibre.
Nothing could be more unIslamic than ostentation. It
is ridiculous to attempt to justify flamboyant displays of wealth in lavish
gifts or feastings by citing the Prophets extremely modest gifts to Fatimah.
What is the Mahr?
The mahr is a compulsory part
of an Islamic marriage contract. The other words
for mahr generally used in the Quran
are sadaqah and ajr, meaning reward or gift to the bride in which there is profit
but no loss, and faridah, literally
that which has been made obligatory, or an appointed portion. Allah commanded:
Give women their faridah as a free gift.
(4:4) (Unfortunately the word is
frequently incorrectly translated as dowry).
It is a gift of money, possessions or property made
by the husband to the wife, which becomes her exclusive property. It is an admission of her independence, for
she becomes the owner of the money or
property immediately, even though she may have owned nothing before. It has
nothing to do with either of their parents, except that a husband might need to
take a loan. This should only be done with the intention of repayment. It is
also intended as a token of the husbands willing acceptance of the
responsibility of bearing all the
necessary expenses of his wife.
Even if the wife owned no property or money of her
own before her marriage, she is given this money or property when she marries
so that she commences her married life in her new status with money or property
of her own. The wife gives herself and her services to her husband, and in
return he gives her property to own herself, even if she had nothing before,
and pledges that he will maintain her. Muslim women are placed in charge of the
internal arrangement of the household, while Muslim men are responsible for its
financing (even if the wife earns her own money subsequent to her marriage).
The Prophet gave each of his wives a payment of mahr, ranging from token sums, the
granting of freedom from slavery when being made a wife, to the payment of
400-500 dirhams. His wife Umm
Habibahs mahr consisted of 4000 dirhams, this sum having been fixed by Najashi,
the Negus (a Christian ruler) of
There was in fact no fixed upper limit for mahr.
Allah required the provision to depend upon the circumstances of the
husband:
the
wealthy according to his means, and the straitened in circumstances according
to his means. The gift of a reasonable amount is necessary from those who wish
to act in the right way. (2:236).
In a famous case, the second Caliph, Umar b.
al-Khattab, once gave a public sermon in which he asked
the congregation to refrain from fixing heavy mahrs,
and stated that the Prophet had declared no-one should give more than 400 dirhams. A woman immediately stood up
and challenged him, quoting the verse 4:20 from the Quran:
But if you
decide to take a wife in place of another, even if you had given the first a
heap of gold (quintar) for a dowry,
you shall not take the least bit back.
Umar went back to the minbar and withdrew his words
stating the woman is right, and Umar is wrong. Whoever wishes may give as much
property as he wishes to give.(Ibn Hajar al-Athqalani, Fath al-Bari, 9:167).
Who owns the mahr? Can it be refused?
It is owned solely by the wife. The husband is not
allowed to refuse to pay his wife a proper mahr
or faridah. The settling of the payment is obligatory.
Women are
lawful to you
.provided that you take them in marriage and not fornication. As
to those through whom you profit (through marriage), give them their faridah as
appointed. (2:24).
The same applied when marrying Jewish or Christian
women (5:5). If a Muslim man married someone whom his right hand possessed
(ie a slave or prisoner of war), the mahr
was to grant her freedom and other payment was not required.
Caliph Umar ruled that if a woman had excused her husband
his mahr, but later demanded it, the husband should be compelled to pay it on
the grounds that the fact that she demanded it was a clear proof that she had
not remit it of her own free will.
The case of a woman whose husband died before fixing
the amount of the dowry or consummating the marriage was brought to Abdullah b.
Masud. He ruled that she should be paid
according to the mahr of women of like status to herself.
The Shafi I school rules that a wife may refuse to
consummate the marriage if the husband agreed to pay the mahr immediately, but
did not do so. She may have the marriage annulled.
How much should
the Mahr amount be?
It is
unIslamic for a Muslim woman to set a huge demand for herself, with the
intention of deterring suitors of humble means. Islam does not require husbands
and wives to come from the same social strata or income brackets although
this may often seem to be advisable. Islamic compatibility is based on
religious faith and mutual respect, not on money, caste (another Hindu custom),
class, background, nationality, etc.
It is just as unIslamic to demand a huge mahr, generally beyond the husbands
means, based on the intention of checking the husband from ill-treating his
wife, or wrongfully or causelessly divorcing the wife, or preventing him from
remarrying another later the reasoning
being that in cases of divorce the woman can demand the full payment of the mahr. The fixing of a substantial mahr for
the above purposes rests on the supposition that the mahr has to be fixed at the time of marriage, but not handed over
until divorce which gives it a supposed deterrent value. This is unlawful
in Islam, for in this case the wife has no use or ownership of the mahr during the time of the marriage.
If the prospective husband is not a wealthy man, a generous wife may choose to accept very small mahr, but this has to be her own free choice. She should not be coerced or have pressure put on her in any way. Some of the Prophets female companions accepted their husbands conversions to Islam, or memorising of ayat of the Quran, or giving education to others as their mahr.
The mahr
has to be fixed taking into account the bridegrooms position in life. That is,
it should not normally be more than he is easily able to afford, whether it be
a lump sum or some article of value. Jurists have different views on what the
minimum amount should be, but all agree that it should be substantial enough
for something to be bought against it. In other words, any amount which is
sufficient for a purchase is acceptable as mahr.
The husband may be loaned money by his father or
family, but it must be repaid. In the case of Nabi Musa (the Prophet Moses),
when he left
A good woman might agree on a low mahr if she wishes, or none at all,
according to the circumstances of her husband. Once fixed it is fixed, and
legally binding so it is good practice to have it written down and witnessed
on a document. The wife should take advice on her decision, and not be blinded
by emotion, or coercion, or fear, or family pressure. If any person pressurises
a woman into a decision she might not have otherwise made, that person will be
held to account in the Life to Come, even if he got away with it on this
earth.
One recorded hadith suggests that the best woman is
the one whose mahr is the easiest to
pay. (al-Haythami, Kitab an-Nikah 4:281).
However, it is sensible for a wife to accept a
reasonable mahr, as this becomes her
own property as stated, and is hers to keep should the marriage fail and end in
divorce.
Under what conditions is it payable?
There are two main ways of properly presenting mahr to the bride.
The first way is to hand it over in full at the time of marriage, in which case it is
known as mahr muajjal, or promptly given mahr.
(Notice the . The word is derived from ajilah,
meaning without delay. This was the accepted practice during the time of the
Prophet, and the amount fixed was generally quite minimal.
In the case of Fatimah and Ali, Ali informed the
Prophet that he had nothing to give her. The Prophet reminded him of a coat of
chain-mail he had been given. It was still in his possession, although in a
delapidated condition and worth less than four dirhams. The Prophet suggested he gave that to Fatimah, and this
was done.
The second way of presenting mahr is to defer it, to hand it over to the
bride after a certain period of time, the duration of which must be specified,
fixed by the man and agreed by the wife. This has to be settled, with
witnesses, at the time of the marriage. This form of mahr is known as mahr
muwajjal. (the word implies in a period of time).
The five major schools of Islamic jurisprudence all
agree that delay in handing over the mahr,
whether in full or in part, is lawful provided that the fixed period for
payment is not indefinite.
This method should never be used as an excuse to
wilfully postpone the payment. A definite date should always be fixed, witnessed, and adhered to. It should certainly
not be left hanging in case
the marriage breaks down and the couple come to consider a divorce
- because of the inevitable emotions,
bitterness, arguments, hostilities and financial problems involved at that
time.
If the husband died, or they got divorced, the mahr debt must be paid up immediately to
the widow before his inheritance or other financial settlements are considered.
It is her property, and not his.
Repayment of Mahr in cases of khul divorce.
A khul divorce is one in which a wife sues
for divorce even though the husband has not driven her to it by his
unreasonable behaviour.
If there is no good reason for a wife wishing to
divorce her husband, but it is a case in which she simply wishes to finish the
marriage with no particular
legal grounds
against the husband, the husband
may agree to grant her the divorce if she returns all or part of the mahr.
This has to be agreed between them.
If the wife does have genuine grounds for divorce such as cruelty,
mental cruelty, breaking of the marriage contract, adultery, desertion,
incurable insanity, long-term imprisonment, abandonment of Islam then the
divorce is not khul but a normal talaq, in which the wife has as much
right to instigate proceedings as the husband. In these cases, she most
certainly does not have to
hand over any of the mahr.
If the wife has genuine grounds for divorce but the
husband refuses the divorce, she may then approach lawyers for khul, and
appoint an Imam to act for her. It is sensible to do this as well as having a
Separation and Divorce.
Of all
the things Allah has allowed, divorce is the most disliked.
Divorce is only for dead marriages. If there is any possibility of a reconciliation then the divorce should not go
through. It is a Muslim spouses duty to do everything possible to save the
marriage, and for all other Muslims to do their utmost to help save the
marriage. Nevertheless, if the marriage has definitely broken down, honourable
divorce is sanctioned in Islam, and is preferable to people being obliged to
carry on living in unhappiness, despair and unIslamic conditions.
There are numerous agencies that will give advice and help to a couple in difficulties
religious leaders, doctors, the Muslim Womens Helpline, the Marriage
Guidance Council, Relate, the Family Planning Association, the probation
service, child-care officers, etc. The husbands and wives generally have to
seek this help for themselves, but sometimes a solicitor will put clients in
touch with suitable agencies.
In good Islamic practice, before any effort is made to seek a divorce, all efforts
possible should have been made to solve the problems and reconcile the spouses.
A Muslim spouse has a genuine grievance if either partner has behaved in such
as way as to go against the sunnah of Islam, in other words, their normal
behaviour has become cruel, vindictive, abusive, unfaithful, cheating, lying,
neglectful, selfish, sexually abusive, tyrannical, perverted, or they have
taken up habitual foul language, drinking, gambling, taking drugs, stealing
etc.
Attempting to Bring About Reconciliation
· The practice advised in
the Quran is for each spouse and to try to behave in the first place according
to the good sunnat of Islam as
regards kindness, compassion, generosity and so on, in order to prevent
problems, and if they should arise, to make genuine efforts to solve the
problems.
· Each spouse do their best to overcome shyness,
shame, or any other inhibiting factor, and communicate clearly to the other
what it is that has upset them. The duty of a good Muslim spouse is to listen
to the complaint, and put matters right so far as it is possible to do so.
· Should this not be
sufficient, each spouse should argue their case before two helpers or
advisers for each side, who may then intervene on their behalf, and discuss
carefully what it is that has caused the marriage to break down. These helpers
should give their best advice.
· The spouses should also
seek advice from their own families, and listen carefully to that advice.
· Every effort should be
made to communicate and discuss their grievances, concerns and problems. If
things have reached a drastic stage, it is usually far better to do this with
witnesses for both sides, so that unpleasant slanging matches and abusive
time-wasting talk does not develop.
· The hurt spouse should
not shrink from honesty in describing the unwanted nonIslamic behaviour that
has upset them. In many cases, the first step towards a cure from such things
as alcohol and gambling abuse is for the abuser to recognise and admit what he
or she is doing, and how it has affected the other spouse and probably the
entire family. It is obviously quite normal for guilty parties to resists this
strongly, even with threats, but the more it can be brought into the open the
more likely it is to be resolved, and the more defence the hurt party should
receive.
· If the offending spouse
is told very clearly that when you do this I feel
.., or when you do this
the reaction, and what happens in the family, is
.., then the responsibility
for their future actions falls squarely on them, and they are certainly to
blame if they continue to do whatever it is, or give adequate explanation of
why they are doing it.
These days the general policy of the divorce law is
that after all possible avenues for reconciliation have been explored, and the
spouses have been properly advised, dead marriages should be ended and not
allowed to continue against the wishes of one of the parties. The law does not
usually need to look too closely at the conduct of either party when a marriage
is failing. Blame will only be relevant in exceptional cases. The courts are
generally most concerned to safeguard the welfare of any children, and to
ensure that a dead marriage is not perpetuated as a sham.
Legal Possibilities to Consider
When a marriage is in trouble, there are five legal
possibilities to consider;
· Divorce this legally ends the marriage
and the husband and wife are both single again.
· Annulment this legally ends the marriage and
the husband and wife are both single again.
· Judicial Separation These do not legally end the
marriage - they
· Separation by informal agreement just end the obligation to
cohabit; the parties
· Separation under a written deed cannot remarry.
· Separation by magistrates court order
If there is any prospect of a reconciliation, then separation is the better
choice, since divorce and annulment terminate the marriage. The phrase used is
that the marriage has irretrievably broken down. If the marriage has not
died, but has only temporarily broken down, then divorce is not allowed.
Grounds for a talaq Divorce.
There are five. All of these are valid in
· Adultery
· Unreasonable behaviour
· Desertion or abandonment
· Two years separation
· Five years separation.
In the UK 99% of divorces are undefended. In the 1%
where a spouse wishes to reject the divorce, a solicitor should be consulted
immediately.
1. Adultery
This is voluntary sex between two people of
different sexes, either or both of them being married. Sex when drunk or
drugged or raped cannot count as adultery. In
Abuses of adultery law and honour killings
It is not enough evidence to suspect adultery if a
woman has simply been outside the home without permission, been seen talking to
someone who is non-mahrem, etc. The so-called honour-killings that have taken
place in various societies have nothing to do with Islam, and are in fact
murder. Murder of an innocent female by a father or brother or uncle is one of
the most horrendous crimes. One can understand strong cultural conditions
prevailing to defend family honour, but in Islam people who accuse others of
adultery without genuine grounds for doing so should actually face the penalty
for being a false witness and for slander.
When the Prophets wife Aishah was accused of
adultery, simply because she had been left alone in the desert and had accepted
a lift home from a young man she had known from childhood, the penalty given to
the false witnesses (including one of her own relatives Mistah, and the
sister of one of the Prophets other wives - Hamnah) was a flogging.
In Islam, the requirement to prove adultery for the
hadd penalty of flogging to be meted out to the guilty parties is the actual
eye-witness of four witnesses, who are in a position to clearly identify the
adulterous spouse and the person with whom they are committing the offence.
This is obviously a very difficult requirement to fulfil, since adulterous
intercourse is virtually always performed in secret and privacy.
Confusing adultery with rape.
Where the powers-that-be confuse adultery with rape,
women may suffer terrible abuses without recourse to proper legal redress.
If a woman is subject to some form of sexual abuse,
either rape, or made drunk or drugged in order to be subjected to abuse, then this
cannot be considered as adultery, either in
2. Unreasonable Behaviour.
This phrase is deliberately vague and imprecise, so
that it may receive the widest interpretation.
The only concern is to show that the behaviour is so grave that the
petitioner cannot reasonably be expected to go on living with the husband or
wife. It all depends on how serious is the misconduct and what is its effect on
the petitioner. Small incidents, seemingly trivial, can also combine to make
the behaviour unreasonable. This is now the most common ground for divorce, and
90% of petitioners are women.
Some examples of unreasonable behaviour:
· physical assault or ill
treatment
· verbal assault such as
persistent nagging, insults, unkindness, threats of assault, boasting of sexual
experience with other people whether true or not
· persistently ignoring
the other spouse
· insanity
· adultery and
cohabitation with another as husband and wife
· sexual activity with
another person which is not adultery but is improper such as a lesbian or
homosexual relationship, bestiality, or sexual intimacy that falls short of
full intercourse
· unreasonable sexual activity, such as
excessive demands on the petitioner, or a complete refusal to have sex, or to
have sex without using a contraceptive, or sodomy and other unnatural practices
forced on the petitioner
· refusal to have children
· obsessive tidiness
· dirty habits
· frequent drunkenness or
drug taking
· financial
irresponsibility, such as failure to provide sufficient housekeeping money
· failure to look after
the home
· irresponsible gambling
· refusal to work when a
reasonable job is available.
All these kinds of unreasonable behaviour are
totally against the sunnah of Islam,
and a Muslim spouse is quite entitled to regard such things as unreasonable and
grounds for marriage breakdown.
Obtaining evidence of unreasonable behaviour of any sort.
· If a wife has been
assaulted and has received hospital treatment, she should obtain a certificate
from the hospital confirming date, time and nature of the treatment.
· If her GP has been
consulted in connection with marital difficulties, he or she should write a
letter confirming her attendance and his opinion as to the cause.
· Medical evidence that
the marriage problems are getting on top of the petitioner can be invaluable.
· Friends, neighbours and
relatives may be able to give evidence as to such things as loss of weight,
nervousness, tension, panic attacks, sleeplessness, depression, inability to
concentrate at work, lack of interest in regular hobbies, weepiness.
· The petitioner should
keep a diary or record of the husbands behaviour, noting the day and the way
in which he abused or insulted her.
· If the police have been
involved, the police record or crime number is invaluable.
3. Desertion or Abandonment
This can be either spouse abandoning the other. At
the commencing stage of abandonment, of course, most partners would not have a
clear idea if the abandonment was going to be temporary or permanent. It is a
good idea to make a note of the date, and the probable reasons for the
abandonment.
If a husband whose wife relies on his support
abandons his wife, she should protect herself in the short term by
· Checking if he is still
paying the rent or mortgage, and if not, arrange to do it herself.
· Claim supplementary
benefit if she has little or no money.
· Apply for maintenance
for herself and her children.
· If she has a joint bank
account, she should make sure he cannot draw out all the money perhaps she
should draw it out before he does!
· If the husband has been
violent she should see a solicitor. It might be possible to have him excluded
from the home.
4. Separation for Two Years.
This is the divorce by consent provision. It
allows a couple who have been living apart for two years to end the marriage
mutually. If, however, only one of them wants the divorce and the other will
not consent, there can be no divorce unless they have been living apart for
five years.
A couple may continue to live in the same house and
still be counted as living apart if they have separate households. They may
share the same kitchen and bathroom, but they must not share the same bedroom
or living room, nor should they cook for one another, spend their evenings
together, or watch TV together. In other words, they should cease living as a
couple and actas though they were two strangers sharing the same house. They
will need to produce independent evidence confirming this state of affairs, and
how they have ceased to cohabit. Before the judge declares the decree of
divorce, he will consider all the circumstances of the marriage, such as the
age, health, earning capacity, conduct and finances of both husband and wife,
and he will not make the decree absolute
unless he is satisfied that the petitioner has made reasonable provision for
the other spouse or has promised to do so, or that the other spouse does not
need maintenance.
5. Separation for Five Years.
This allows a blameless spouse to be divorced
against his or her will. There is virtually no way that the petitioner can be
prevented from obtaining a divorce. The only possibility is for the spouse not
wanting the divorce to plead exceptional hardship, but the courts generally
interpret this very narrowly indeed. For example, a wife who had returned to
her old country with her children opposed her divorce to a husband remaining in
the UK because it would result in her being socially ostracised back home, but
this plea was rejected and the divorce went through.
The judge can grant a decree nisi, but refuse to
make it absolute until he is satisfied that adequate provision has been made
for the other spouse.
Costs
The costs vary according to the complexity of the
case. The more work involved, the more a solicitor will charge. If the divorce
is defended, the costs rise dramatically, or if there are complicated financial
disputes, or disagreements over the arrangements for the children.
The petitioner cannot be sure the case will be
undefended right up to the day of the court hearing, for spouses can change
their minds at the last moment. If the case is defended, legal advice will be
necessary. Legal aid may be available to help with the costs.
Solicitors cannot give you a definite price until
they know how complex the case is likely to be. They should be able to give a
quote on a typical case.
In undefended divorces, both petitioner and
respondent may act for themselves if they wish. It is also possible in defended
cases, but extremely unwise.
In addition, there will be court fees to pay. You
have to pay to file the petition, and you may have to pay for a bailiff to
serve the petition on the other spouse.
How to Choose a Solicitor
Consult the yellow pages in your telephone
directory. Solicitors do specialise, so it is wise to ask if he or she does a
lot of matrimonial work. If he or she does not, consider choosing someone else
who does. The solicitor will not be offended.
Embarrassment
Many people find it very embarrassing to be obliged
to tell a complete stranger the full details of their matrimonial affairs,
including, perhaps, their sexual relationship. Lawyers treat their information
as strictly confidential, and will not tell anyone else about it. They will not
be shocked or embarrassed they will have heard it all before, and will
treat the matter in as unemotional a manner as would a doctor. They will not
become emotionally involved in the case. They are paid to procure objective
advice, and they cannot do that if their judgement is clouded by prejudice in
favour of a particular client.
They will also test the strength of their clients
case by asking the sort of questions that the other spouses solicitor may ask.
Some people are surprised when cross-examined by their own solicitors but
they need to find out the weaknesses in the case so that they can take steps to
strengthen them.
Do not blame the solicitor for the law. If solicitors say a case is hopeless, it doesnt
mean they are incompetent and cant handle it, or that they dislike the client.
If the law does not support the case, it is pointless to seek another
solicitor.
We have made you a vicegerent in the earth, so rule
among the people with justice and do not follow your own desires lest they
mislead you from the Way of Allah. As for those who go astray from the Way of
Allah, they shall surely have a severe punishment because of forgetting the Day
of Reckoning.
(Surah 38:26).
How to Obtain your own Undefended Divorce
· Get a copy of your
marriage certificate.
· Go to the local divorce
court and
(i) get three copies (four in an
adultery case) of the standard divorce petition form (Form D8).
(ii) If there
are children, get three copies of the standard Statement of Arrangements for Children form (Form D8A).
(iii) Get a copy of the notes for guidance on
filling in the forms and the free booklet on DIY Divorce.
(iv) If you are claiming a share in the family home
you may also need to register your claim against the land.
· Fill in all the copies
of the divorce petition form and the Statement of Arrangements for Children
form if applicable. Use the notes for guidance, and the free booklet.
· To start the proceedings, take or send to the court:
(i) two copies of each form to the court. If the case is based on adultery, then give the court three copies of the petition.
(ii) The copy marriage certificate
(iii) The fee of £35 (people of limited means are exempt ask at the court)
· The court will allocate
a reference number to your case. You have now become the petitioner. Your other
spouse, against whom you are seeking divorce, is known as the respondent.
· The court will send the respondent
(i)
a copy of the divorce petition form and Statement for the
Arrangements for Children form, if there are any
(ii)
a Notice of Proceedings form
(iii)
a form for him to sign to acknowledge that he has been
served with these documents. This is called the Acknowledgement of Service
Form.
· The respondent will sign
the form stating that he or she does not intend to defend the petition, and
sends it to the court.
· The court will then send
you
(i)
a copy of the Acknowledgement of Service form
(ii)
a standard form for you to request Directions for Trial
(iii)
a standard form of affidavit for you to complete. This will
set out the basis of your petition and the evidence in support.
· Complete the affidavit
of your evidence
· Sign the completed
affidavit and the copy Acknowledgement of Service form in front of a court
official or solicitor.
· Send those documents to
the court together with the completed form asking for Directions for Trial.
· The affidavit and
evidence then goes before a registrar. If he or she thinks the evidence is
sufficient to entitle you to a divorce, a certificate will be issued, a copy of
which is sent to both spouses. The registrar also fixes a date for either the
pronouncement of the decree nisi if there are no children (and there is no need
for either spouse to attend court on that day), or the date of the appointment
before the judge if there are children. Both husband and wife should attend on
that day, when the judge will consider the arrangements in a private hearing.
If the judge is not satisfied, the proceedings will be adjourned until the
problems are resolved. If there is not sufficient evidence the judge may order
a welfare officers report.
· Once the decree nisi has
been pronounced, a copy is sent to both spouses together with a copy of the
judges order concerning the children if applicable.
· Finally, you get the
standard form applying for the decree nisi to be made absolute, and send it to
the court. It is not sent automatically you have to apply for it.
· If there is no
outstanding business, the registrar will make the decree absolute and send a
certificate of decree absolute to both spouses, some six weeks after the decree
nisi.
· Thats it. If there are
no children involved, it can all be done through the post
Repayment of Mahr in cases of khul divorce.
A khul divorce is one in which a wife sues
for divorce even though the husband has not driven her to it by his
unreasonable behaviour.
If there is no good reason for a wife wishing to
divorce her husband, but it is a case in which she simply wishes to finish the
marriage with no particular
legal grounds
against the husband, the husband
may agree to grant her the divorce if she returns all or part of the mahr.
This has to be agreed between them.
If the wife does have genuine grounds for divorce such as cruelty,
mental cruelty, breaking of the marriage contract, adultery, desertion,
incurable insanity, long-term imprisonment, abandonment of Islam then the
divorce is not khul but a normal talaq, in which the wife has as much
right to instigate proceedings as the husband. In these cases, she most
certainly does not have to
hand over any of the mahr.
If the wife has genuine grounds for divorce but the
husband refuses the divorce, she may then approach lawyers for khul, and
appoint an Imam to act for her. It is sensible to do this as well as having a
Annulment
The difference between an annulment and a divorce is
that a divorce is granted to end a marriage that has broken down irretrievably,
but an annulment is granted if the marriage was not valid in the first place,
or is defective in some way.
The law distinguishes between two types of annulled
marriage
· those that are void
· those that are voidable
In the former, there never was a marriage; in the
latter there was a marriage but it was defective.
The grounds for annulment are as follows;
Void
· the couple are too
closely related
· either was under sixteen
at the time of marriage
· certain marriage
formalities were not followed
· it is bigamous
· the couple are of the
same sex
· invalid polygamous
marriage because, although the marriage was valid abroad, one of the parties
was domiciled here at the time of the marriage.
·
Voidable
· There was no
consummation of the marriage because one of the spouses was incapable.
(Consummation means any one act of sexual intercourse
involving full penetration and a sustained erection; ejaculation is not
necessary. Premarital sex does not count as consummation).
· Wilful refusal by the
other spouse to consummate the marriage
(This means a determined refusal, persisted in over
a period of time. It does not cover nervous first-night fears! Only one act of
intercourse is necessary for the marriage to have been consummated, but if a
spouse then refuses any further
sexual intercourse he or she is guilty of unreasonable behaviour justifying
divorce.
· Lack of consent at the
time of the marriage
(This applies if the spouse was forced, coerced,
tricked, duped, under the influence of drink or drugs, or suffering from mental
disorder as defined by the Mental health Act).
· At the time of the marriage
the other spouse was suffering from communicable venereal disease (proceedings
for this must be started within three years of the marriage or the claim will
not be allowed)
· At the time of the
marriage the woman was pregnant by another man
(proceedings for this must be started within three
years of the marriage or the claim will not be allowed).
If any woman was forced or tricked into a marriage, it is legally null and
void, both by
Coercion
If a young woman was worn down and forced into
agreeing to a marriage because:
· she was frightened of
physical hurt if she refused,
· or had been threatened,
· or would be disowned
· or thrown out of the
family home,
· or her parents would
never speak to her again,
· or her mother would
commit suicide if she didnt do it,
· or she was made to feel that by her refusal
she would acting dishonourably because the engagement had been agreed since her
infancy,
· or she would discover
all her silly fears were just female nerves and she would soon get used to
the idea and would be grateful in the end,
· or she would be letting
some relative down,
· or she would perhaps be
condemning some person to being sent back home because they could not get a
visa
· or her parents had
already accepted a money payment from the bridegrooms family
- these are all moves of coercion, and could render
the marriage null and void. Any of these behaviours on the part of her parents
is not only totally unIslamic, but it is cruel in the extreme the physical
and mental torment coming from the very people the girl had been urged to love
and trust, and who should have been protecting her best interests. The sense of
betrayal is complete, and families rarely get over the trauma and rift caused.
If a woman was forced into a marriage ceremony but never consummated the marriage, it could be voided
most easily if the woman concerned could prove medically that she was still a
virgin. If she was not a virgin for example, it could be a second marriage -
but the marriage with this particular man has never been consummated, proof
would have to be sought, and it would be vital to confide in a doctor
immediately to back up your case. If the husband admitted the lack of
consummation, the marriage would be swiftly voided.
If it is a case of a young girl sent back to her
parents country of origin and married to a person without her knowledge or
consent, perhaps through her complete innocence, or through trickery and connivance on the part of
relatives, or her lack of understanding of the language or the legal processes
in that country, that marriage is null and void both in UK law and in Shariah law. This applies whether the
relatives force the couple to live together or not, or even if children are
born to the union.
Even if she has signed her consent on forms, it
might be the case that she had not understood the forms, or that someone had
misled her into thinking the forms were for something else. These marriages are
not valid, either in
Sexual Abuse
This can include not only rape and inappropriate
sexual intimacy, but it may be someone touching you in a way you dont like,
showing you pictures that you are not comfortable with, or talking about your
body or sex in a way which disturbs you.
Sexual abuse happens to women and girls of all ages,
from all backgrounds, and from all cultures and faiths. Any Muslim man involved
in this unpleasantness will certainly have it recorded against him, and will
face judgement for it in the Life to Come, whether or not he gets away with
it on this earth.
Many women and girls are sexually abused by men they
know and trust, for example fathers, grandfathers, uncles, boyfriends or
friends of the family. At least 65% of rapes are carried out by someone known
to the woman. It is also abuse for a husband to force himself upon his wife, or
act in any way she regards as offensive or distasteful.
Some women abuse, but the overwhelming majority of
abusers are men. A woman can either abuse or seduce a man, but she has not got
the physical equipment to rape him.
Rapists often target very vulnerable people such as small girls, women alone
in vulnerable situations, or old ladies. It has little to do with the sexual
attractiveness of the victim. The crime of men raping young boys or other men
through the anus has now become much more common, and has made men in general
more aware of how unpleasant a crime it is. Raped women have not secretly enjoyed it, or made a fuss
over nothing!
Men often argue that the women concerned have asked
for it, led them on by flirtatious behaviour or provocative clothing, or that
they were unable to control their sexual urges. In fact, more than 80% of rapes
are planned in advance. Muslim women can avoid arousing male urges by their
modest dress, but it must be stated that many men are actually turned on by
veiled and modest women.
Some men think that if they spend a lot of money on
a woman, they have the right to have sex with her. This is not the case. If a
man buys a woman something, that is his choice; she does not owe him anything,
least of all sex.
What you could do to help.
For all these suggestions, the assumption is that
you are an innocent husband or parent or guardian. If the husband, parent or
guardian is in fact the abuser, the woman involved should seek outside help as
soon as possible.
Listen to the woman and believe her. Let her know
you are there to listen whenever she needs to talk. Women are often accused of
making malicious allegations of rape against innocent men. In fact, false
allegations are the same as for any other crime around 2%.
If you are swiftly on the spot, make sure she does
not destroy any evidence she might need she should not take a bath but
preserve any bodily fluids for forensic testing including semen, blood, skin
scratched under her fingernails, etc. She should keep her clothing for forensic
testing also.
Respect her decision regarding reporting to the
police. You can help her weigh up the pros and cons, but you do not have the
right to pressure her.
Help her deal with the practical consequences. She
may need to go to a clinic to be tested for any sexually transmitted diseases,
or she may need a pregnancy test.
Allow her to cry as and when she needs to. Crying
and expressing her feelings are an important part of the healing process. Many
women suffer all sorts of problems as the result of abuse. These include
depression, self-disgust, panic attacks, suicidal feelings, eating disorders
and sleeping problems. They also include guilt feelings, and the overwhelming
feeling that one has become dirty.
Reassure her that what happened was not her fault.
Help her put the blame where it belongs with the abuser.
Respect her feelings and decisions regarding any
sexual contact. She may need reassurance that she is still attractive. Do not
put any pressure on her. At all times she will need to be in control of
intimate and sexual contact, even if you are her husband.
Above all, if you are a Muslim husband, do not
regard your wife as in any way to blame she is the victim of a crime, and one
of her worst sufferings will be fearing that you will no longer love her, will
treat her with distaste or distrust, or will abandon her and not be able to
establish your own marital relationship with her again. You must rise above all
your natural feelings, and do your utmost to reassure her and help her to heal.
She has been abused, not dishonoured. Your feelings towards her should be as
supportive and protective as if it was your son who was raped.
I
. take you
..
as my lawful wedded wife. I promise to be a noble and righteous qawwam[1],
to do my best to love and to cherish you
as my chosen spouse, to care for you and maintain you in sickness and in
health, to stand by you during hard times and times of tragedy, to appreciate
your efforts on my behalf, and to respect you and cherish you as we change,
mature and grow old together
- to recognise your
equal Muslim rights to mine, as a woman who had her original creation from the
same single soul (Surah 4:11???)
- to be aware of
your different physical, emotional and hormonal characteristics and needs, and
to make the appropriate efforts to understand, sympathise with and support you
during your times of pain, weakness and disturbance
- to be a good
household manager, and when exercising this function to act towards you with
tact and discretion, and to consult your opinions
- to do my best to
be a good provider, and earn adequate money so as to run my household in an
honest and honourable manner
- to encourage your
education and that of our children from cradle to grave, according to your
talents, abilities and aptitudes
- to make easy your
access to the law and justice system
- to encourage your
acquiring, owning and disposing of your own property, without seeking to take
it over, borrow it, or go beyond my rights
- to support you in
lawful contracts, in our marriage, in business, or in any other lawful purpose
- to be supportive
of you if you work outside the home in a halal
way, in order to improve our household, or your own character or wellbeing
- to respect your
wages and salary, and not expect to take them from you or to over-rule your
wishes as regards their use
- to respect your
considered decisions, as I expect you to respect my own, and to listen to your
reasoning and explain my own position with full logical reasons when I am
obliged to over-rule your decisions
- to encourage your
access to halal social gatherings,
celebrations, family visits, lectures, schools, or any other place where there
is adequate protection of your reputation
- to encourage your
access to the mosque and the services and wisdom of the Imam
- to be faithful to
you in physical intimacy and to turn aside from temptation to any haram relationship
- to fulfil my duty
as a husband in satisfying your own physical needs in a noble and generous way,
and to acquire the skills necessary to understand and satisfy them
- to keep my body
clean and pleasant (especially the areas of mouth, armpits, feet and private
parts), especially when seeking physical intimacy with you
Some
suggestions for the noble conduct of Muslim males: points to consider before
marriage, in order to make their marriage successful.
(These items are all based on Islamic sunnah, and if adhered to should go a very long way towards creating a successful and happy marriage. A Muslim woman is requested to accept her husband as head of the household, and carry out his wishes as far as possible so long as they do not conflict with the wishes of Allah as expressed in the Quran and the Prophets sunnah. If a Muslim man chooses to go against any of these items, he would in effect be going against those wishes of Allah. He should be aware that a Muslim woman has the right to place her duty towards Allah before her duty towards him, and conflict would certainly arise which could endanger, if not end, the marriage.)
I will make all my marital dealings legal,
according to the law of the land, so that myself, my wife and children will
have full rights, benefits and access to the protection of the law, both in
marriage and should the marriage fail.
I will give her a set amount of money every
week, adequate for household budgeting, and if she does not earn any money of
her own, I will also allocate a set amount for her own personal use and
pleasure.
If she earns her own money, I will appreciate
it if she uses it for the wellbeing of the household, but I will make no
personal claims upon it, or try to take it from her, or use it.
I will maintain scrupulous personal
cleanliness, paying particular attention to areas that attract unpleasant body
odours mouth, armpits, feet and private parts.
I will keep my hands and fingernails clean.
I will wash my private parts before sexual intimacy, and perform ghusl after intimacy, before the next
prayer.
I will never require her to co-operate in, or
perform, any sexual act in her presence that is distasteful to her, or likely
to cause her fear, revulsion, disgust or dismay.
I will never force myself upon her, bearing
in mind her times of sickness, discomfort, exhaustion, menstruation, or
post-childbirth physical and hormonal adjustment.
I will endeavour to remember those
anniversaries that are meaningful to her including such as her birthday, our
wedding anniversary, the UK Mothers Day, the birthdays of our children and
parents and will celebrate them with little cards, gifts, meals or outings.
I will do my best to train our children to
treat her with respect and consideration, and will set a noble example in this
by my own treatment, respect and consideration of her.
I will remain faithful and loyal in my
affections towards her, even though she will naturally age and lose her figure
and skin tone, and may suffer illness.
I will do my best to listen to her points of
view and understand the reasons for her wishes, and carry them out so far as it
seems reasonable and halal for me to
do so.
I will never abuse her or our children with
violence, enforced sex, verbal abuse, mental abuse, disloyal talk or cruel
jokes and torments, drunkenness, drug addiction, physical perversion, or
enforcing a dirty and unpleasant body upon her.
I will make allowances for her natural
hormonal upsets and difficult times such as menstruation and pre-menstrual
tension, pregnancy, childbirth and the difficult months after childbirth.
I will support her in her care of our
children, from cradle to grave if they should die before me.
I will not treat her as a slave or servant,
or expect her to provide unreasonable hospitality when she is exhausted, sick
or suffering from hormonal upsets and depressions.
I will protect her from unwanted and
unexpected visitors by encouraging such visitors to follow the Prophets sunnah of invitation, arrangement, and
withdrawal without resentment should the visit not be accepted.
I will offer my help in the household, either
personally or by provided/paid help, if she is in need of this help either temporarily
(through sickness etc), or more permanently (through her own employment outside
the home, for example).
I will clothe her and our children to the
same standard as I clothe myself.
I will provide food for her and our children
to the same standard as I feed myself.
I will provide medical attention for her and
our children to the same standard as I would expect for myself.
I will provide sexual satisfaction for her
pleasure and contentment, adequate to protect the sexual safety of our
household. I will do this by acquiring the necessary skills and understanding,
and by consultation with her and affectionate response to her needs.[2]
I will be courteous and generous to her
family and maintain a noble balance as regards visiting them and them visiting
us etc, so as not to create any burden, jealousy or hurt.
I will endeavour to earn her respect and love
by my honest and fair behaviour at work, in business and in the home.
I will not attempt to co-erce her into
accepting any haram conduct,
earnings, deals, business practices etc.
If our marriage ends in a divorce, I will
continue to maintain my children adequately, as regards their food, lodging,
clothing and education, and will act with compassion towards my ex-wife and see
that she is safe and provided for (especially if she does not remarry). Should
she remarry, my responsibility ceases.
I will not attempt a polygamous marriage
unless the terms of my wifes contract to me have been deliberately broken,
without any hope of reconciliation and repair, or without her full knowledge
and consent, and will not attempt to gain that consent by threat, cruelty,
co-ercion, blackmail, or mental pressure on the principle that no Muslim
should ever deliberately hurt another. If I insist on a polygamous marriage, I
must allow my existing wife free right of divorce and continued maintenance for
herself and my children.
Marriage
hadiths.
In Encyclopedia of Muhammads Women Companions Shaykh Muhammad Hisham Kabbani and Laleh Bakhtiar.
1. The case of Kabshah bint Man Ansariyyah.(p.354)
She was the wife of Abu Qays b. Aslat Ansari.
Not mentioned by Ibn Sad.
When her husband died, her stepson claimed
her in marriage as was the jahiliyyah
custom. She went to the Prophet and asked him to help her so that she would not
have to marry him but could be free to marry someone else. Surah 4:19 was
revealed:
O you who believe. You are forbidden to inherit women against their will. Nor should you treat them with harshness that you may take away part of the dowry that has been given to them, except where they have been found guilty of open lewdness. On the contrary, live with them on a footing of kindness and equity.
He gave widows the full right to remarry anyone they wanted to marry after they had completed the waiting period.
2. The case of Khansah bint Khudham al-Ansariyyah.
(p.360-361)
She was the sister (?) of Unays b Qatada, wife of Abu Lubaba b. Abu Mundhir, of the Malik an-Najjar clan of Khazraj. She accepted Islam, and the hadith was recorded by her that a father alone without his daughters consent could not arrange her marriage.
Nafi b. Jubayr related that she was widowed,
and her father gave her in marriage when she was unwilling. She went to the
Prophet, and said her father had followed his own opinion and given her in
marriage without consulting her. The Prophet said: There is no marriage. Marry
whom you wish. The marriage was revoked, and she married Abu Lubaba b.
Mundhir.
Said b. Abdur Rahman al-Jahshi said she was
married to Unays b. Qatada, who was killed at the battle of Uhud. Her father
than gave her in marriage to a man she did not want, although she preferred her
sons paternal uncle. The Prophet gave control of her life to her.
3. Case of Bint Amr b. Wahb. (p.304).
She was the wife of Sad al-Aswad Sehmi. She
was not mentioned by Ibn Sad.
One of the Companions, Sad al-Aswad, was
extremely unattractive. No-one was prepared to marry his daughter to him. He
informed the Prophet, who told him to go to Amr b. Wahb, who would give him his
daughter. Amr refused to accept this. However, his daughter had heard the
conversation, and went to the door and told Sad that if he were really sent by
Allahs Messenger she would happily and willingly marry him. Sad returned to
the Prophet and told him what had happened. The Prophet then prayed for the
girl who, in the meantime, had warned her father of Allahs punishment. Her
father went to the Prophet and asked forgiveness. They were married, but Sad
was martyred in battle before he could take his bride home.
4. Case of Tamimah bint Wahb of Banu Malik
an-Najjar of Khazraj. (p.222-3, and 420-21)
She was married to Rifaa b. Samawel
al-Qurayzi. He divorced her irrevocably, and after the waiting period she
married Abdur rahman b. Zubayr. She went to see the Prophet while he was
sitting with Aishah and Abu Bakr, and Khalid b. Said was at the door. She
wanted release from Abdur Rahman, because he only had something like the
fringe of a garment, she said, showing the fringe of her veil. This either
meant he had a very small penis, or he was impotent and had been unable to
consummate the marriage. It was said he was averse to her, and divorced her,
and Rifaa wanted to remarry her. Khalid was shocked to hear her speak to the
Prophet like this and asked Abu Bakr why he did not stop her. The Prophet did
nothing but smile. He told her that she could not return to Rifaa until Abdur
Rahman had consummated the marriage. He told Rifaa that she is unlawful to
you until she has tasted the sweetness.
5, Case of Habibah bint Sahl (p.327).