In countries where Islam is not widely understood, ensuring the legality of the Islamic marriage contract (nikkah) in the courts presents special challenges.
Marriage in Islam is not a sacrament, but a covenant. It is solidified when the couple agrees to or signs a legally binding marriage contract, or nikkah.
Although a couple may include highly detailed prenuptial agreements in their marriage contract, cases do arise where a spouse contests the terms agreed upon. How then can Muslims in Western countries ensure the legality of the marriage contract at the time of its signing?
In the US, University of Richmond law professor Azizah Y al-Hibri has been researching issue for the past 12 years, as part of her efforts to write a book about the Islamic marriage contract. Her manuscript, which provides the basis for a model marriage contract and guidelines on how to make it legally binding in US courts, is almost completed.
“It has taken a very long time to write because the conclusions must be steeped in religious jurisprudence,” emphasizes Dr al-Hibri, who is also president and founder of KARAMAH, a group of women lawyers who advocate women’s rights.
“The project started as a book on marriage contracts, but it has mushroomed. It now addresses both the Muslims and the courts and it presents to them a comprehensive Islamic world view on gender, marriage, family and the status of women.”
Honouring the terms of a marriage contract is further complicated in US courts, where few Americans – Muslims included – understand the contract’s intricate workings and jurisprudence.
Expert witnesses must be well-informed and carefully selected in order not to establish unfair precedents against Muslim marriage contracts in American courts. Dr al-Hibri points to cases when Muslim expert witnesses, asked to explain the marriage contract, provided an incomplete or erroneous testimony leading to an adverse decision by the court regarding Muslim marriage contracts as a whole.
She hopes that her book will provide the necessary jurisprudential foundation for future expert testimony and court analysis about the subject.
However, Dr al-Hibri has discovered that the Islamic jurisprudence must also be explained to Muslims themselves, many of whom are not well-educated in their own religion. For example, she notes that many Muslims are unaware that there is a type of divorce which a woman may initiate directly without forfeiting her bridal gift, or mahr. The right to this form of divorce is established by including the stipulation in the marriage contract itself.
“I now know,” she says, “that under Islamic law there are other financial rights of the woman at the time of divorce, but that society and the legal system have either not recognised or not protected those rights, and that needs to change.”