- Translator:: http://translate.google.com/m/ - ●◄ ►● - > This
article appeared originally in the January 1997 issue of Al-Qalam
magazine in South Africa
Negotiating Issues in the Marriage Contract
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In South Africa, some Muslim couples are no longer just signing the
nikkah register to solemnise their marriage in Islam. They choose
instead to negotiate and sign their very own marriage or nikkah
contract.
The couples at three recent weddings attended by this reportereach did
it differently. While one of the couples decided to enter into a civil
contract, the other two couples took a personal interest in their
marriage contract as opposed to leaving it to atheological group. They
had negotiated on issues regarding matrimonial property regime, the
divorce process, custody, polygamy, sexual relationship and even
relations with in-laws. This they did taking the Shari'ah and their
personal circumstances and needs into consideration.
Although uncertain about its legal status, they felt that they at
leastwill have some common understanding of their rights and
obligations. al-Qalam has since learnt that the Muslim marriage
contract is now recognised by the law.
According to Maulana Mohammed Saeed of the Jamiatul Ulema
Transvaal,signing the traditional marriage register confirms the
solemnising of the marriage contract. It is not a specific contract
negotiated between the partners. Such a contract that regulates their
marriage is separate.
Marriage Contract is New Concept for South AfricanMuslims
While the concept of a marriage contract for most South African
Muslims is foreign, having a marriage contract spelling out the terms
of marriage was not an unusual concept during the early Muslim era as
evidenced by Sukayna bint Husayn, the great granddaughter of the
Prophet (s) and A'ishabint Talha, the niece of A'isha (r.a.).
Presently, many Muslim countries, including Iran, Malaysia, Indonesia,
Tunisia and even where Muslim are in the minority like India have some
kind of marriage contract that couples enter into. In some of these
countries marriage laws are continually reformed. According to a
report by Times of India,"The All India Muslim Personal Law Board will
soon release a marriage contract which will revolutionise the status
of married Muslim women." Reforms aroundmehr, triple talaq and
polygamy had been included.
In South Africa, however, Muslim marriages were not recognised by the
law, so issues of dissolution, custody and maintenance were taken to
an informal judiciary, usually a theological body, to be resolved. The
result was a sometimes messy process, which left couples uncertain and
insecure.
The Experiences of Three Couples
Al-Qalam spoke to two couples who had recentlychosen to negotiate and
sign a marriage contract.
Mohammed felt that the present process was inadequate, and that there
was a need to spell out certain provisions in the contract to protect
his and his wives rights. His wife Farhana became aware that terms and
conditions could be stipulated in a marriage contract from her
readings of Islamic history. For her it was important to set the
boundaries of their relationship, and state from the very outset what
their positions there were on various issues, and what the partners
understood their responsibilities to be.
Ruwaida also negotiated a marriage contract. She first heard about the
existence of such a thing in Jordan, she felt it was needed to avoid
problems in the future, and it was also importantso that other people
could become aware thatthere were other ways ofsecuring their rights
within a marriage.
While her husband was uncertain about the necessity for such a
contract, believing that the Shari'ah takes care ofthe marriage
contract, henevertheless agreed to enter into a personalised contract.
Farhana and Ruwaida feltstrongly that signing a marriage contract was
important for women who have had to face thebrunt of unfair rulings
onthe part of some 'ulama.
Another Muslim couple that al-Qalam spoke to decided not to negotiate
their own marriage contract, and opted for the South African civil
marriage instead. For them it was unnecessary to re-negotiate what
wasalready in law, although they admitted there was a gender bias in
custody rulings. Their understanding of marriage contracts was that it
was a tool used in early stages of Islamic history, when there was no
legislation in place to deal with marital disputes.
This new innovation, while lauded by some, has been criticised by
others. One Maulana felt that while it might be a good idea to draw up
themarriage contract in this way, the contract was inadequate in that
it was not possible for it to deal with issues important in a marriage
like justice with rahmah, fikr, and love. Mohammed faced criticism at
his wedding when one guest greeted him after the nikah and told him
that the contractwas "a whole lot of hog-wash."
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