Islamic Marriage Contracts in USA and Canada
Prof. Gabriel Sawma, Esq.
Islamic marriage is defined as a contract whose purpose is to start sexual relationship between man and woman, and legalizing of children. The Qur’an calls it “nikah”. Muslim scholars define Islamic marriage as “haqq al tamattu”, the right to enjoy sexual relationship between husband and wife. Being a contract, Islamic marriage brought about under coercion or fraud may be set aside at the request of the party whose consent was so caused.
Every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage. The exact age of puberty may vary, based on physical and mental development of the child, but is generally reached by the age of fifteen.
Elements of the Islamic Marriage Contract
It is essential to the validity of the Islamic marriage contract that there should be a proposal (Arabic, ijab), and acceptance (qubul) made at the same meeting with the object of establishing immediate marital relation between the parties. Before the acceptance is pronounced, either party may withdraw from the negotiations.
An Islamic marriage must be accomplished with the presence of two male or one male and two female witnesses. A marriage contracted without witnesses is only invalid, and not void. An invalid marriage may be terminated by a mere repudiation on either party. Children born during the continuance of the contract are regarded as legitimate.
It is necessary to the validity of a marriage that the woman must not be the wife of another man, and that the man must not be the husband of four wives, that being the full number of wives permitted by Islamic Sharia. It is important to note that Islamic Sharia allows the husband and wife to have an agreement at the time of marriage that the wife should be at liberty to divorce herself from the husband, if he married another wife.
Another important component of the marriage contract is the mahr, amount of money or equivalent that the husband promises to pay his wife in the event of divorce or his death. For more on the mahr see, http://gabrielsawma.blogspot.com/2009/07/mahr-provision-in-islamic-marriage.html
A marriage with a widow or a divorce woman before the expiration of the period of iddat, which it is incumbent upon her to observe on the death of her husband or on divorce, is void. The iddat of a woman arising on divorce is three courses, if she is subject to menstruation; if not, it terminates at the expiration of three months from the date of divorce. The iddat of a woman arising on widowhood is four months and ten days. But if the woman be pregnant, the period of iddat does not terminate until after delivery.
As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.
Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:
DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.
Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.
Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:
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