Submitted: December 17, 2013Revised: April 20, 2014

An Equitable Marriage Contract in Islamic Law

Critics of Islam often focus on the relationships

between men and women and argue that Islamic marriages are

inherently sexist. Apologists agree that in practice,

certain interpretations “have so severely restricted woman

that marriage becomes an institution of oppression for

her.”1 Wadud argues that using marriage as the “means by

which a woman is stripped of her individuality and her self-

respect as a human equal in humanity and in spiritual

capacity to any man” is inherently against the Qur’anic

intent.2

While the Qur’an gives specific stipulations and

restrictions on marriages, it does not provide an exact

model for a marriage contract. In Islam, only adults can

enter into contracts, and a man or a woman becomes an adult

when they are a “legally and morally responsible person, who1 Wadud, A. (1999). Qur'an and Woman: Rereading the Sacred Text from a Woman's Perspective. (Oxford: Oxford University Press), 103.2 Ibid.

has reached physical maturity” and are of sound mind.3 The

contract is derived through Islamic law and, “is constantly

being negotiated, interacting with particular historical

current” despite that it is considered to be an imposed

law.4 The permanent marriage contract, nikah, is rooted in

patriarchal expectations of marriage and only addresses the

needs of heteronormative relationships. In this essay I

attempt to identify sources of inequity in nikah as well as

provide some initial footwork in identifying a potential

alternative. A novel model for marriage contracts, based on

classic contracts of partnerships from the Hanafi and Maliki

schools, could be used to replace the current model, which

defines itself on a sale contract that inherently defies

messages of marriage equality in the Qur’an.

The Status Quo

Haeri argues that because the Qur’an is addressed to

men and has been interpreted and elaborated by male

theologians and legal scholars, patriarchal Islamic law has

3 Haeri, S. Law of Desire: Temporary marriage in Shi'i Iran. (Syracuse: Syracuse University Press, 1989), 27.4 Ibid, 26.

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been able to perpetuate itself while maintaining “an

outsider’s perspective on women, their nature, needs, and

wants.”5 The main understanding of nikah is that it grants a

husband milk (dominion) over his wife’s sexual and

reproductive capacity.6 Haeri argues that despite a clear

assumption of vaginal ownership, jurists have shied away

from this notion.7 Scholars have noted that nikah resembles

a contract of sale, bayʿ.8 Because of the required exchange of

a mahr or sadaq (bride price), the husband essentially buys

his wife’s sexual organ. This procurement suggests that the

husband therefore owns his wife.9

Another major flaw in the current model is the

authority and necessity of a wali (Persian: vali). The male

guardian of a woman can supersede her own authority and thus

over her ability to marry freely.10 Many women were married

off as girls, before they reached the age of maturity, under

5 Ibid.6 Ali, K. Marriage and Slavery in Early Islam. (Cambridge: Harvard University Press, 2010), 6.7 Haeri, 34.8 Ibid, 30.9 Ibid, 34.10 Ibid, 38-9.

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the authority of a wali. Because of the case of ʿAyasha and

others being married off at a young age during the Prophet’s

time, some argue there can be no marriage without a wali.

Haeri provides a counterargument that there is no inherent

requirement for a wali in Islamic law. She references

Schacht suggesting that the use of a wali “gradually gained

acceptance, was adopted, and eventually projected back to

the time of the Prophet.”11 She tries to reinforce this

understanding in referencing the fact that ʿAyasha gave her

consent and received her mahr from the Prophet directly.

This suggests that although she may have been young, she

still acted as a free person.

One last issue of note is that only the male holds the

right of unilateral divorce, talaq. The view held is that it

is “a divine right of the husband that cannot be infringed

upon” discussed in surahs 2:226-37.12 Jurists, in the same

patriarchal light of the aforementioned issues, answer the

question of why a marriage requiring mutual consent can only

be ended by a specific party. Because nikah is a contract 11 Ibid.12 Ibid, 42.

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of sale, a husband’s wishes take precedence over those of

his wife. The fact of the matter is that nowhere in these

verses does it say that a man and only a man has the right

to terminate a marriage. If a marriage is equitable and is

a mutual agreement, then either party could initiate

unilateral divorce.

Disassembling the Foundation

The notion that the mahr is the price of sexual

ownership is part of the foundation governing Islamic

jurisprudence in regards to nikah.13 While the Qur’an

clearly mandates that a mahr be paid in verse four of An-Nisa

(4:4), the nature of the mahr is worth investigating. Ali

writes that the consensus on the pre-Islamic understanding

of the term was that mahr was “compensation paid to a

bride’s family in exchange for considering her offspring

part of the husband’s tribe.”14 The notion that the amount

is paid to the wife instead is seen as a modification of

this tradition. Ali also suggests that there exists 13 Ali, K. Sexual Ethics and Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence. (Oxford: Oneworld, 2006), 5.

14 Ibid, 3.

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evidence that mahr and sadaq were originally two different

practices but through Islam’s “selective sanctioning” of

pre-Islamic Arabian marriage practices, both words came to

represent the amount paid to the wife.15

Many neotraditionalists and feminists in modern Muslim

discourse view the mahr as a source of economic security

for women, a husband’s intent to marry, and his ability to

provide for his wife. Ali argues that although this

argument is pervasive in places like the US, the amount paid

is often symbolic or promised in a form not recognized by

local law as a binding contract. Furthermore, religious

figures have no right to enforce mahr obligations due to

state divorce laws. She argues “the practical impact of

these factors belies the rhetoric about dower’s importance

as a safety net for women.”16 While the effect of state law

on how Islamic law is practiced appears to be a weaker

points of this argument, one cannot argue that the amount

paid is always sufficient to be an economic safety net for

women.15 Ibid.16 Ibid, 4.

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While the Qur’an directs that a mahr be given, one

must turn to hadith texts to understand the amount that is

to be paid. Ali summarizes a list of four possibilities:

1. Symbolic (e.g. iron ring)2. Minimal (e.g. 1/4 dinar or 3 dirhams)3. Ideal (the dower paid by the Prophet to his wives

or received by his daughters)4. Maximum (i.e. an unfixed amount).17

While the first two options are deemed appropriate as a

mahr, they would in no possible way provide a safety net in

any sense of the meaning. Thus we can conclude that this is

likely not the intent of its existence. Even though this

argument has been nullified it would be a false dichotomy to

rely on the argument made by classical jurists as these

amounts shed light on their argument as well.

There are two ways of applying the four optional

amounts to the classical understanding of the mahr. Either

there are four vastly different yet somehow acceptable

amounts that would be used to buy the same “product,” or

there are four different amounts for possibly four different

products. If all levels were acceptable payments for the 17 Ibid.

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same product, then there would be no need to pay the higher

amounts for the same product. Overpaying could be seen as

wasteful and the Quran states that God disapproves of those

who are wasteful.18 If there were some reason as to why one

would pay a higher amount then the purpose of the mahr

would not be solely for the purchase of reproductive rights.

Similarly, if these amounts were to pay for different

products, then on top of the objectification of women as

purchasable products that disagrees with any notion of

Qur’anic sexual equity, it also suggests that women aren’t

equal to each other. These four amounts may in fact suggest

there would be four levels of women that this payment would

be appropriate for. As there is a lack of any mention of

these classes in the canon and the fact this notion

disagrees with any notion of equality amongst people, the

argument is invalid.

Since none of the aforementioned arguments seem to be

appropriate explanations for the reason behind the mahr,

the focus should move to what is actually written in the

18 Qur’an 6:141

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canon. The hadith contain no mention for its purpose,

however the Qur’an does provide a single explanation. In

verse 24 of An-Nisa, the Qur’an suggests that it should be an

ajr, a reward or compensation paid by a man for “what he

enjoys from her.”19 This is literally the only offering the

canon provides as reasoning for payment. Ali argues that

jurists chose to understand it as compensation for sexual

dominion because they believed that, in marriage, the

husband is paying for control.20 This does not seem to

declare that a husband pay his wife an amount equal to the

sexual pleasure he expects to have. There is no indication

that a husband should pay for his wife for her ability to

bear children either. If she were hypothetically infertile,

she would still retain her right to the mahr. Jurists have

interpreted an obligation for a man to propose with a gift

that matches his joy for his desired bride as guidance on

how to purchase a wife. The foundation of the patriarchal

marriage contract does not appear to be based on the Qur’an

or hadith texts but rather a desire for marital dominion.19 Ibid, 5.20 Ibid, 5.

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Gender Equity

These aforementioned issues dealing with the nikah are

centered on gender inequity. Wadud argues that the Qur’an

only somewhat identifies one issue of faddalah; preference of

men over women, and it is only in regards to inheritance.21

She also suggests that although men get more wealth they are

charged with the care of women so a level of reciprocity

exists.22 The held belief for faddalah is founded in surah

4:34. Wadud argues that the words conveyed are not gendered

and thus it has been unjustly assumed that it suggests men

have more power over women.23 She furthers this viewpoint

by summarizing the many statements on gender equity the

Qur’an makes,

“In conclusion, the Qur'an prefers that men and women marry (4:25). Within marriage, there should be harmony (4:128) mutually built with loveand mercy (30:21). The marriage tie is considered a protection for both the male and the female: 'They (feminine plural) are raiment for you (masculine plural) and you are raiment for them.' (2:187). However, the Qur'an does not rule out thepossibility of difficulty, which it suggests can

21 Wadud, 50.22 Ibid.23 Ibid, 71.

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be resolved. If all else fails, it also permits equitable divorce.”24

She essentially identifies a list of canonical

arguments against a patriarchal preference in Islam.

Wadud provides a wonderful explanation as to why such

patriarchal readings exist. She suggests that the

Qur’an itself cannot be read in a patriarchal fashion

but rather that individual portions are taken out of

context and interpreted with a predetermined

patriarchal mindset. Thus legal interpretations

reflect the desires of the reader. She further

suggests that, “not only do Muslims often fail to read

those aspects of the Qur’an’s teachings that threaten

the power and legitimacy of patriarchies, but they also

read into the Qur’an meanings that often are just not

there, especially with regard to issues like polygyny

and “wife beating.”25 Her reasoning also seems to be a

logical explanation as to why the mahr was interpreted24 Ibid, 78.25 Barlas, A. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur'an. (Austin: University of Texas Press, 2002), 188.

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to be the purchasing price of a bride’s sexual

capacity.

Addressing Homosexual Marriage

The patriarchal understanding of nikah also presents

obstacles to homosexual marriages. The contract was

designed for heterosexual marriages but “the purposes of

finding one’s mate are the same for hetero- and homosexual

couples, so the ethical guidelines to establishing

relationships should also be the same.”26 Arguments may

arise that the purpose of marriage is for procreation; given

the example of the Prophet, one could see the fallacy of

that statement. The Prophet married many women who were

older and had already borne children from previous

marriages. He enjoyed sexual pleasure with them even though

they did not produce children, either out of choice or

biological constraints. Kugle argues that the Prophet never

taught that the purpose of sex was for procreation, but

rather that Muslims should have active sex lives so they may

26 Kugle, S. Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender Muslims. (Oxford: Oneworld Publications, 2010), 280.

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cultivate reciprocal relationships of pleasure and trust.27

Given this understanding and current arguments refuting the

forbidding of homosexuality in Islam, one could use ijtihad

and creative legal arguing to suggest a route to a legal

marriage for homosexual couples. Although the focus thus

far has been mainly on how nikah affects heterosexual

couples, my outlined suggestion below for an alternative and

equitable contract could easily be used to unite any two

people in marriage regardless of their sexual orientation.

A New ModelIn an attempt to offer an alternate model, I chose to

review available financial agreements addressed in Islamic

law. As the goal is to find one that is equitable, I

focused my search to sharikas, or partnerships, rather than

contracts of sale, lease, or rent. Under shariʿa law, there

are multiple types of sharikas, each with its own

stipulations and rules that govern the relationship between

those who have entered into it.28 No statute mandates any 27 Ibid, 286.28 Bilal, G. Business Organizations under Islamic Law: A Brief Overview. Proceedings of the Third Harvard University Forum on Islamic Finance: Local Challenges, Global Opportunities , (Cambridge: Havard University Press, 1999), 1.

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of these agreements to be written down.29 There are non-

contractual sharika al-milk agreements as well as sharika al-uqud

contractual agreements. Al-uqud agreements can be further

broken down into five general subtypes depending on their

stipulations. Gohar Bilal explains that unlike the four

other partnerships, in a mufawadah the “stipulation of

complete equality in wealth or capital, profit and work” is

an absolute condition for the agreement.30

Hanafi VS Maliki

Two main schools, the Hanafi and the Maliki, both have

mufawadah agreements that are quite similar but vary in key

aspects. To Hanafi jurists, the word mufawadah is derived

from tawfid, delegation of authority for each partner to

empower his or her colleague to act freely.31 They also

suggest other derivations both returning to the idea of

equality and dispersal of wealth among partners. In the

Hanafi School, there is a mandated prerequisite of equality

of the partners in all respects including the personal 29 Ibid, 3.30 Ibid, 6.31 Udovitch, A. L. Partnership and Profit in Medieval Islam.(Princeton: Princeton University Press, 1970), 44.

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status of the partners.32 This mandated equality suggests

that while dhimmis (people of the book) can take part in the

contract, apostates cannot.33 In a practical application,

while the Qur’an forbids marriage with mushrikun

(polytheists), those with dhimmi status are not forbidden.34

Thus this stipulation would agree with the canon. However,

the mandates of the mufawadah in the Hanafi school suggest

that since males and females are unequal, it would be

unlawful for mixed gendered partners to be joined in this

contract. As the basis of the proposed equitable contract

is marriage, one would argue the premise of inequality of

the sexes invalidates the argument that a man and woman

cannot enter a mufawadah legally. Another issue that arises

is the need for partners to be financial equals. Despite

the financial ties of marriage, the goal is to form a union

and not gain a financial return on an investment. Since

wealth does not guarantee a partner is more capable than the

other in forming the union, the argument against

32 Ibid, 44-45.33 Ibid, 47.34 Quran 2:221.

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partnerships between members of different income levels is

invalidated.

Fortunately, there is no need for this argument in the

Maliki School. Jurists believe that the goal of a mufawadah

is to allow someone to use the capital of either partner to

benefit their association.35 Jurists claim there is no

requirement for partners to be social or financial equals as

long as that benefit is served.36 If this notion of benefit

were carried into a matrimonial context, then there would be

no socioeconomic or gendered roadblocks to a union between

two partners. I would argue that both the Maliki and the

Hanafi School would permit this type of contract, but one

would one need to make an argument for gender equality in

the Hanafi School for the contract to be valid.

Finally, it is worth mentioning that in a third school,

the Shafi’i, jurists believe that all mufawadah contracts

are “null and void”, as profits from all endeavors are not

shared. The basis of the argument arises from avoiding

scenarios where gains that are not had from an active 35 Udovitch, 144.36 Ibid, 144-145.

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partnership may be improperly claimed as joint gains.37

This limited understanding and refusal to accept this type

of contract shows little hope for a marital contract of this

nature to be based in this school.

Agency and Surety

This mufawadah agreement requires a contract of wakala

(agency) and kafāla (surety) in addition to the partners

sharing all losses and gains. To clarify, wakala enables on

partner to act on behalf of another to fulfill an

obligation, similar to the concept of a power of attorney.

Kafāla is a bond that a person must pay in case they fail to

fulfill an obligation. Framing wakala and kafāla into the

parameters of a marriage contract would be a relatively easy

task. Each partner in the marriage should be able to act as

an agent in the others absence regarding finances or the

signing of certain legal documents. As mentioned above this

would be no different in practice as a spouse having a power

of attorney. Both parties would have this power and thus it

would be an equitable facet of the contract.

37 Ibid, 29-30.

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In regards to kafāla, a patriarchal assertion would be

to have some sort of marriage bond where a groom agrees upon

a price with the father of the bride in case he is unable to

go through with the wedding. An issue that arises is that

having this condition in place perpetuates a patriarchal

familial unit, which by definition would lead to inequality.

The burden is placed on one partner and the agreement is

between a partner and the other one’s parent. By removing

this as a requirement, equality, the goal of a mufawadah, is

insured. To address specific instances where a surety

clause would be beneficial, the contract could contain an

optional clause. An example that might arise is where one

side agrees to pay specific costs before the actual marriage

takes place. If anything may arise that prevents the

contract going forward, the offending party could be held

liable for said costs.

Stipulations

To further the discussion regarding stipulations of theagreement, Bilal states most

contracts address the following areas:1) “Nature and place of business

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2) Provision of capital3) Ascertainment and division of profits4) Management of the partnership5) Indemnity against liability in the firm’s business6) Remuneration7) Duration of partnership8) Death or retirement of a partner,9) Restrictions on a retiring partner’s carrying on a

competing business10) Reference of disputes to arbitration.”38

Many of my proposed implementations imply customizable

documents. I feel that providing an overly complex and

rigid foundation would cause many problems to arise. Since

needs, desires, and resources vary significantly, certain

elements would need to be tailored to the specific needs of

the partners. However, a foundation of equity should remain

as a rigid backbone to the contract.

First and foremost, the nature of the contract would be

for marriage. Any desired specific stipulations for the

marriage (e.g. desire for a certain amount of children)

could be added as an optional clause to the marriage to be

agreed upon by both parties. In regards to the provision of

capital, one could see this as facet going into the marriage

as well as maintaining it. As the goal is equity and all

38 Bilal, 3.

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losses, profits, and assets become shared in the union, it

would seem to be a moot point going into the marriage. The

same can be said in regards to the ascertainment and

division of profits, management, indemnity against

liability, and remuneration. However, during the marriage,

if one party is relied upon financially and is unable to

provide, a clause could be used to provide grounds for

divorce due to financial hardship.

The duration of the partnership leaves room for both

temporary and permanent marriages. The primary aim of this

contract is reform of permanent marriage contracts. If

there arises a need for an equitable temporary marriage

contract given certain societal pressures, one could simply

alter the permanency of the clause to reflect an agreed upon

time limit that could be renewed. A mufawadah is not

inherently a permanent agreement.

If one of the partners should pass during the marriage,

the issues of inheritance and a waiting period arise. In

regards to inheritance and debt, this contract does not

attempt to supersede any authority in verses 4:11-12 and

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4:176. As a fetus can inherent wealth that would be shared

as joint capital if the mother chose to remarry, one needs

to insure that there is no pregnancy before proceeding with

another marriage. The normal waiting period of 3 months

could be followed, although considering the availability, a

medical test could be used to verify and end the waiting

period sooner.39 In regards to “retirement” (i.e. divorce),

as all debts and profits are equitable, the amounts would be

shared equally by both parties. In regards to a partner

carrying on a competing interest while actively engaged in

another partnership (polygamy), it would not be equitable to

do so. Thus this would be disallowed by the contract.

Finally, in regards to reference of disputes to arbitration,

if both parties cannot come to an agreement using voluntary

arbitration, either member can start proceedings for

compulsory arbitration. This essentially resolves the issue

of who has the rights to initiate divorce. If both parties

can reference arbitration, then both parties can initiate a

divorce.

39 Haeri, 60.

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The lack of a canonical foundation of the mahr being a

purchasing price for sexual rights of a bride opens the door

for an alternative marriage contract. An equitable

partnership agreement based on a mufawadah could be used as

a legal basis for an equitable marriage with some minor

argument in the Hanafi School and without any additional

argument in the Maliki School. This partnership seeks to

reform marriage by addressing the practiced inequality of

genders defying the Qur’an. It gives equal rights of to

divorce and treats both partners as equals, rather than

owner and property. This marriage contract also permits the

joining of two partners of any sexual orientation, as

pleasure and not reproduction is seen as the basis of

marriage. The model does seem to be promising, but as

someone who is not a hadith scholar, I can only suggest that

further work be done to identify the validity of use of this

potential document. The issue of inequity between genders

in inheritance also arises and finds its foundations in the

Qur’an. It may also be worth identifying options that could

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address canonical inheritance as appropriate for the

societal structure at the time.

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BibliographyAhmed, L. (1992). Women and Gender in Islam: Historical Roots of a

Modern Debate . New Haven: Yale University Press.

Ali, K. (2010). Marriage and Slavery in Early Islam. Cambridge: Harvard University Press.

Ali, K. (2006). Sexual Ethics and Islam: Feminist Reflection on Qur'an, Hadith, and Jurisprudence. Oxford: Oneworld.

Barlas, A. (2002). Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur'an. Austin: University of Texas Press.

Bilal, G. (1999). Business Organizations under Islamic Law: A Brief Overview. Proceedings of the Third Harvard University Forum on Islamic Finance: Local Challenges, Global Opportunities , 83-89.

Haeri, S. (1989). Law of Desire: Temporary marriage in Shi'i Iran. Syracuse: Syracuse University Press.

Kugle, S. (2010). Homosexuality in Islam: Critical Reflection on Gay, Lesbian, and Transgender Muslims. Oxford: Oneworld Publications.

Udovitch, A. L. (1970). Partnership and Profit in Medieval Islam. Princeton: Princeton University Press.

Wadud, A. (1999). Qur'an and Woman: Rereading the Sacred Text from a Woman's Perspective. Oxford: Oxford University Press.

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