Some 1,500 years ago, the Qur’an introduced an alternative way of harmonizing human relationships by clearly indicating that marriage is a sharing between the two halves of society. This teaching came in response to existing legal and social inequities between the sexes; both men and women were to be held equal in status, rights, and obligations and bound by the same universal ethical and moral principles of justice and equality.
Furthermore the Qur’an viewed marriage both as a legal contract and as a moral and ethical agreement, because in Islamic philosophical thought there is no distinction between the religious beliefs and those that apply to the physical world. As such, all actions or transactions have religious implications and are subjected to the same natural and divine laws that govern the cosmos.
The Qur’an seeks balance and harmony in human relationships and as such it deals with all aspects of human action and behavior. On one hand, it sets the criteria for choosing the right person; on the other hand, it explains the universal rules and principles regarding how individuals in marriage should treat and behave towards each other. This is crucial in order to maintain healthy and balanced families and to discern the psychological, emotional, social, and economic needs of the family; who mainly provides for those needs; the principles that govern individual behavior within the family; how decisions get made; who has the greater responsibility to provide leadership within the system; the rights of the children in relation to their parents; and the rights of society and the community. These are all discussed and are all self-regulating.
To maintain balance, the Qur’an identifies certain aspects of family life and subjects them to specific legal rules, while others are subject to divine laws (or ethical principles) that cover behavior and social interaction. In fact, the legal aspects of marriage are all contained within the marriage contract itself, with its social aspects covered by the ethical guidance provided in the Qur’an.
For example, the concept of "mutual rights" is enshrined in the Qur’an. "... And remain conscious of Allah, in whose name you demand (your rights) from one another, and these ties of kinship. Indeed, Allah is watchful over you!" (Qur’an 4:1). Although the actual financial settlements are contained in the negotiated marriage agreement, yet they are also prescribed in the Qur’an as "rights and obligations." Moreover, these rights are not just private family affairs or of no concern to the rest of society. In his book, The Family Structure in Islam, Ati (1997) points out, "... if the situation becomes unmanageable, religion commands society, represented by designated authorities ... to take whatever action is necessary to implement the law, in order to maintain equity and harmony."
Since the Qur’an recognizes the possibility of divorce, it establishes a monetary system in the marriage contract to make divorce least destructive, both financially and emotionally, to either of the parents or their children. In this sense, the marriage agreement serves to safeguard the financial rights of both parties, with some exceptions where the sole beneficiary may be the woman.
It is often difficult for the separating couple to arrive at an amicable settlement because of the inherent emotional and psychological hurt involved. To minimize pain and suffering, the Qur’an recommends arbitration as a viable alternative to the legal wrangling and unnecessary confrontational battles that serve only to prolong the suffering of both parties, and especially of children, who are caught between two warring parents.
Moreover, the Qur’an advises speedy and equitable arbitration to conclude the process: "And if you fear a breach between the two, then appoint two arbitrators, one from his people and the other from her people; if they both desire agreement, Allah will effect harmony between them ..." (Qur'an 4:35)
Ati further points out that the marriage contract "... is open for additional, but legitimate conditions and its terms are, within the legal bounds, capable of being altered. It is dissoluble if there arise grievances leading to an irreconcilable break in the marital relations." In addition, both parties to the marriage contract must meet the qualifications of legal competence; that is, they must be of adult age and mentally competent -- if they are not, the marriage is invalid.
Furthermore, to be binding, the contractual agreement requires the consent of the parties involved and becomes binding when both parties consult legal advice independently, thus avoiding the danger or appearance of coercion and manipulation. This practice guarantees that any settlement negating the original agreement is subject to legal recourse. When the legal requirements of a binding marriage agreement between two consenting Islamic adults are examined critically, they reveal that women in fact fare much better financially than mean, both during and after marriage.
As noted earlier, marriage under Islamic Law is a contract. Thus, like any other contract there are elements (arakaan) that are considered absolutely essential for the contract to be valid. These include: offer and acceptance; Mahr (gifts); intentions (expressing the contract's intent clearly for all involved); financial agreement, and the stipulation of all other legal issues that are considered essential.
Unfortunately, most Muslims who are getting married to-day do not have a written contract. They either do not know, or do not believe, or do not care that the contract is a basic requirement for Muslim marriage. Often it is the parents who actively discourage their children, especially girls, from drawing up a proper pre-nuptial agreement. Some behave this way out of sheer ignorance, but the majority is motivated by greed: if the marriage goes sour, they hope their child will be able to hire a lawyer and fight for the best financial deal.
The Qur’anic rationale for stipulating this requirement as a religious obligation is to provide an important practical tool for dealing with the financial aspects of the marital relationships in a just and equitable manner, such as; Mahr, divorce, inheritance, maintenance, and child support. In my professional opinion, those who overlook or disdain such basic agreements are sacrificing both equality and equity in the marriage itself.
In real-life terms, the Islamic marriage agreement is a very sound system, since it offers both wife and husband protection from each other's greed and wants when the so-called Hollywood-Bollywood version of "love and marriage" begins to fade and the worst of human nature emerges in greed, anger, vindictiveness, and destructive behavior.
Furthermore, it limits court costs and reduces adversarial and lengthy battles (especially between separating couples). In our confused society it is an absolute necessity, because money and greed always play a major role in divorce. In fact, initially the most common problem that brings people into counseling -- along with issues of fidelity, housework, incompatibility, or clash of values -- is that of money.
(Wahida Valiante is a social worker and family therapist. She has presented several major papers nationally and internationally on family therapy based on the Qur’anic concept of human personality and human relationships. She is also a cyber-counselor with Islamonline, national vice-president of the Canadian Islamic Congress, and Chair of Islamic History Month Canada. She can be reached at nvp@canadianislamiccongress.com