Islamic Marriage: Characteristics and Legal Aspects
Muslim Law as a Prerequisite
This system has few similarities to the mainland. For this analysis, several issues arose:
- For Muslims, there is no separation between state and religion. Its existence is embedded in cultural monism, affecting the development of rules. Religious constraints, i.e., the rights and duties of classical Islamic law, permeate being Muslim, making a dualistic field difficult.
- Muslim countries follow an Islamic theocracy structure, governed by sacred law, significant in marriage and family matters. Regulations are found in sacred texts, differing from current legal thinking.
- Islamic law is strongly patriarchal. A Muslim male’s marriage is subject to its regulation, and a Muslim woman cannot marry a non-Muslim.
The law’s imposition in the Muslim world varies with different interpretation schools. According to Martin’s Daughters, the source of Sharia in Islam rests primarily on the Quran (the Muslim holy book containing Allah’s doctrine communicated by Muhammad), but also values the Prophet’s example or Sunna (Muhammad’s words and deeds). This divine origin gives it eternal validity. A Muslim cannot ignore this principle without ceasing to be one.
Two other sources (besides the Quran and Sunna) nourish Sharia law: qiyaas (resolutions based on analogical reasoning, becoming law when sages or mudjtahid agree through ijmaa) and ijmaa (doctrine approved by consensus of Islamic people and mudjtahid). They adapt theory to immutable circumstances using logical reasoning, including analogy.
Sharia began to fade shortly after the Prophet’s death. Succession battles led to divisions and different interpretations of Muslim law. Particularism exists in Muslim states regarding personal status, influenced by accepted schools and Western laws. Differences exist between orthodox Sunni states and Shiite states, and those influenced by Western culture while retaining Islamic principles. Combalía distinguishes two groups:
- States where Sharia is the primary law source.
- States where Sharia regulates personal status, mainly family and inheritance.
Spanish Muslim nationals may be exempt from the details of Islamic law schools, as foreigners in Spain can marry under their personal law.
2. Notion of Marriage
Islamic marriage or nikah is imbued with a sacred hue from Sharia: The Quran states marriage is a permanent relationship with responsibilities arising from a sacred contract. Marriage in Islam has religious and civil legal repercussions. Procreation is an obligation for Muslim men, and marital status is dignified. Marriage combines legal thought and Islamic customs.
Legal Nature: Doctrine qualifies it as a contract, a private contract with religious character, where God is invoked and the Quran is read. This private nature has waned due to Western influences, with most Muslim countries requiring marriage before a religious official (Qadi, Mullah, or Imam) and registration.
Assimilation to a contract is not easy due to aspects that deviate from the model. Autonomy is reduced by default content, though parties can add clauses. Spouses have more leeway in economic aspects. Marriage is an obligation for procreation, with freedom only in choosing a spouse.
Doctrine compares marriage to a sale, with similar requirements:
- Absence of impediments
- Consent of parties
- Compliance with celebration requirements
- Establishment of the dower (similar to payment in a sale)
Generation: Marriage is discussed with the woman’s relatives, resembling a contract between representatives. Contractual consent is presumed for the spouses, but not guaranteed unless the woman is widowed or divorced.
Negotiations conclude with the sadaq (dowry), seen as a purchase price. The Quran states husbands have rights over wives because they spent assets to acquire them.
However, identifying marriage as a sale is debated. Marriage is generally voluntary, based on mutual consent. The dowry is not a price but a donatio compensandi usus puellae (compensation for the use of women).
Caputo notes that to avoid promiscuity, a Muslim male can buy a slave woman or marry. The rights and duties of spouses differ from those of a master and mistress. Love between husband and wife makes the marriage voidable.
3. Unique Characteristics of Islamic Marriage
Culturally peculiar properties:
- Polygyny (man has multiple wives)
- Perpetuity of the link
Marriage aims: Islamic doctrine lists ethical advantages, including perpetuation through procreation and legitimizing sexual relations.
Polygamy: The Quran allows a Muslim man up to four wives, a reduction from pre-Islamic practices. Simultaneous marriages must meet conditions. Marriages exceeding four are void. Polygamy is an authorization, not an obligation. Concubinage is recognized, with children of concubines considered legitimate.
A man can take multiple wives if he can treat them equally and fairly. This is verified by the husband or the Qadi.
Specific Prohibitions:
- No simultaneous marriage with close kin (mother, daughter).
- Temporal limitation for divorced women (idda period).
Reasons for polygamy include caring for orphans and widows. Today, civil laws in Islamic states restrict or ban polygamy due to Western pressure, women’s education, unwanted children, and family conflicts. Contract clauses can oppose polygamy or require authorization, allowing women to seek divorce. These restrictions contradict classical Islamic law, where a second marriage is valid up to the legal limit of four, though it may lack civil recognition or incur penalties.
Perpetuity of the Link: Marriage is considered perpetual despite divorce and repudiation, which are covered in the Quran. Temporary marriage (mut’a) is allowed in Shiite schools but resembles kidnapping as it doesn’t require consent. Islamic law’s concern for patriarchal legitimacy conflicts with temporary marriage.