The Elements of Meaningful Marriage Contracts

This is the second in a series of articles on marriage. They are taken from the seminar Why Marriage Contracts & Agreements Matter by Shaykh Faraz Rabbani.

A meaningful marriage contract is not bereft of four elements: offer, acceptance, specification of the Mahr and witnesses. This article will seek to elaborate on those key elements. 

Offer and Acceptance

The first two elements are offer and acceptance. The offer and acceptance can be from either party. A marriage can be conducted in seconds. In the Hanafi school you don’t have to mention the Mahr for it is entailed by the contract and anyone present is a witness. Either party can either act on their own or appoint someone to act on their behalf. 

Most commonly the woman’s father or guardian acts on her behalf. It is important to note that there is a difference of opinion within the schools of Islamic law. In some schools a woman cannot conduct her marriage. It has to be done through a guardian whether that be the father or someone else in the order of guardianship (the Wali). It is wise to have in writing who is to be deputized to make sure that the woman is consenting.

Both offer and acceptance must be clear and definite. Although there is a lot of leeway regarding this in the Hanafi school, a lot of things that people say may not be according to the Sunna. One should be wary of conducting a marriage in a manner that would be differed upon according to the majority of Islamic scholarship. If you ascribe an offer to the future: “Will you marry me?” This is a proposal, not an offer. Furthermore, agreeing to marry is an engagement and any words with convey such a meaning should be avoided when making the offer and acceptance.

Note: if someone did get married in that manner then anything that would ultimately be understood to have been a marriage (particularly where people came together for marriage) then this is what took place. It is not ideal but certainly, in the Hanafi school, it counts as a marriage. 

Excellence in Offer and Acceptance 

There are also elements of excellence in the offer and acceptance. From excellence is that the language should be clear. They should include in it the meaning of turning to Allah, defining one’s intention and purpose in it and also, practically, how the expression of offers and acceptance will take place. 

One way to assure clarity is to have this in writing so each party knows what they will say. As for language, it can be in any language as long as everyone understands that it’s a marriage. It should also be clarified that it is not required to repeat the Nikah in three different ways.

The Mahr

The third element is specifying the Mahr. One of the important aspects is how much of the Mahr is due upfront. A woman does not need to agree to move in with the husband or any of the implications of marriage until the Mahr that is due upfront is given. Specifying the Mahr upfront is important to avoid problems later on. 

Non-definition of how the Mahr is paid does not make the marriage sinful nor is the marriage contract voidable, however, it leads to disputes. The characteristics of good contracts are that they’re clear and avoid dispute. 

As for the upfront payment of the Mahr, a lot of people have this notion of ”sometime soon.” 

The Mahr is something entailed by the marriage so the proper practice is that the upfront amount be given before the marriage takes place or on the day. This can be incorporated into the elements of the marriage agreement. The upfront amount should be defined.

The Deferred Mahr

As for the deferred Mahr payment, it should be made clear how it is paid. If this is not the case then it can lead to countless disputes. Of course, the Mahr belongs to the woman, not to her family. The family could take it to make sure it’s received but the family has no right to the Mahr payment. One should also avoid doing strange things such as stipulating the Mahr upon death or divorce. 

The simplest and cleanest thing is for the Mahr to be mentioned so it doesn’t lead to dispute. The Mahr is also a debt and Islamically the best thing is not to be in debt. Debts lead to dispute so clearing debts helps reduce the elements of dispute.

There are two Sunnas when it comes to matters of significance one should keep in mind. One is to put it in writing. The second is to have witnesses. Certain things can be embarrassing but at least have a clear record of it. 

The Mahr (which once in the contract is a debt) could also be renegotiated. In general, for anything where there is material significance, one should have it in writing and/or have witnesses. “In writing” means the presence of signatures, for example, is good or one could include two trustworthy people in the email chain.

Witnesses

Witnesses are also needed. One should also note that the Sunna is for the marriage to be done publicly and that it be announced so that it be known. In the Maliki school, making the wedding known is a requirement and the witnesses are the Sunna. Properly, one should do both. Secret marriages are impermissible even if they were to fulfill the conditions. 

Who counts as a witness? A witness has to be someone who is not an interested party such as a parent, sibling, or child. Ideally not an immediate relative but an uncle is passable. Practically, the witnesses should be written down in the marriage agreement and their contact details should also be in writing. 

Witnesses are also important as elements of the marriage agreement could be contested. One should also keep their Nikah contract as issues may arise later down the line. If the husband divorces the wife and she claims to be owed a large sum of money that is in the contract, the husband may claim he doesn’t have the contract. 

One of the greatest enormities is a false attestation–false speech which is to tell a lie by which one denies another their rights or to say a lie by which you take the rights of another. 

The Officiator

The officiator is not a requirement but it is an important Sunna. When it comes to buying a house one may get it examined by experts. Why? Because it is a critical matter and one does not take critical matters into their own hands. Marriage has a lot of consequences and it’s easy to do things wrong. It may reach one that the Prophet (Allah bless him and give him peace) officiated the marriages of his companions and the companions officiated the marriages of those after them. 

One shouldn’t just have a token officiator. The officiator should be someone one engages with beforehand so that there be a well-thought-out marriage contract. One of the important Sunnas of the Nikah is the Khutbah al-Nikah and there is a difference between an embarrassing Khutbah and a meaningful Khutbah. 

One practical note is that in regards to the mitigation of disputes on the day, one should also have someone taking a project manager role. 

Conclusion

What one can learn from the above is the importance of conducting their wedding procedures soundly. One should take care that the key elements of the marriage contract are known with certainty to the parties. It is also of significance to consider other related matters that one should take care to address.