Islamic Marriage Contracts in USA and Canada
By
Prof. Gabriel Sawma, Esq.
Definition
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:
Contact Information:
Email:
gabrielsawma@yahoo.com
Tel.
(609) 915-2237
Or
visit our websites at the following links:
For more
information on the author, please see this link:
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