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South African Couples Draw Up Own Marriage Contracts

By Zakiyya Ismail
This article appeared originally in the January 1997 issue of Al-Qalam magazine in South Africa

South African Muslim wedding

Negotiating Issues in the Marriage Contract

In South Africa, some Muslim couples are no longer just signing the nikkah register to solemnise their marriage in Islam. They choose instead to negotiate and sign their very own marriage or nikkah contract.

The couples at three recent weddings attended by this reporter each did it differently. While one of the couples decided to enter into a civil contract, the other two couples took a personal interest in their marriage contract as opposed to leaving it to a theological group. They had negotiated on issues regarding matrimonial property regime, the divorce process, custody, polygamy, sexual relationship and even relations with in-laws. This they did taking the Shari’ah and their personal circumstances and needs into consideration.

Although uncertain about its legal status, they felt that they at least will have some common understanding of their rights and obligations. al-Qalam has since learnt that the Muslim marriage contract is now recognised by the law.

According to Maulana Mohammed Saeed of the Jamiatul Ulema Transvaal, signing the traditional marriage register confirms the solemnising of the marriage contract. It is not a specific contract negotiated between the partners. Such a contract that regulates their marriage is separate.

Marriage Contract is New Concept for South African Muslims

While the concept of a marriage contract for most South African Muslims is foreign, having a marriage contract spelling out the terms of marriage was not an unusual concept during the early Muslim era as evidenced by Sukayna bint Husayn, the great granddaughter of the Prophet (s) and A'isha bint Talha, the niece of A'isha (r.a.).

Presently, many Muslim countries, including Iran, Malaysia, Indonesia, Tunisia and even where Muslim are in the minority like India have some kind of marriage contract that couples enter into. In some of these countries marriage laws are continually reformed. According to a report by Times of India, "The All India Muslim Personal Law Board will soon release a marriage contract which will revolutionise the status of married Muslim women." Reforms around mehr, triple talaq and polygamy had been included.

In South Africa, however, Muslim marriages were not recognised by the law, so issues of dissolution, custody and maintenance were taken to an informal judiciary, usually a theological body, to be resolved. The result was a sometimes messy process, which left couples uncertain and insecure.

The Experiences of Three Couples

Al-Qalam spoke to two couples who had recently chosen to negotiate and sign a marriage contract.

Mohammed felt that the present process was inadequate, and that there was a need to spell out certain provisions in the contract to protect his and his wives rights. His wife Farhana became aware that terms and conditions could be stipulated in a marriage contract from her readings of Islamic history. For her it was important to set the boundaries of their relationship, and state from the very outset what their positions there were on various issues, and what the partners understood their responsibilities to be.

Ruwaida also negotiated a marriage contract. She first heard about the existence of such a thing in Jordan, she felt it was needed to avoid problems in the future, and it was also important so that other people could become aware that there were other ways of securing their rights within a marriage.

While her husband was uncertain about the necessity for such a contract, believing that the Shari’ah takes care of the marriage contract, he nevertheless agreed to enter into a personalised contract.

Farhana and Ruwaida felt strongly that signing a marriage contract was important for women who have had to face the brunt of unfair rulings on the part of some ‘ulama.

Another Muslim couple that al-Qalam spoke to decided not to negotiate their own marriage contract, and opted for the South African civil marriage instead. For them it was unnecessary to re-negotiate what was already in law, although they admitted there was a gender bias in custody rulings. Their understanding of marriage contracts was that it was a tool used in early stages of Islamic history, when there was no legislation in place to deal with marital disputes.

This new innovation, while lauded by some, has been criticised by others. One Maulana felt that while it might be a good idea to draw up the marriage contract in this way, the contract was inadequate in that it was not possible for it to deal with issues important in a marriage like justice with rahmah, fikr, and love. Mohammed faced criticism at his wedding when one guest greeted him after the nikah and told him that the contract was "a whole lot of hog-wash."

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