Muslim Marriage Contract in American Courts
Lecture by Professor Azizah Y. al-Hibri of T. C. Williams School of Law, University of Richmond, followed by transcript of Q&A session.
Minaret of Freedom Banquet, May 20, 2000
Let me first thank Imad-ad-Dean Ahmad and the Minaret of Freedom for their kind invitation to address this distinguished audience. My remarks tonight are not just about Virginia courts. Other courts in other states face similar issues. But an order from a Virginia court led me to take a good look at the problems facing Muslim women in American courts and address them in a serious and professional way.
Last spring a court order came across my desk, by chance, in which a judge said that Islamic law of marriage is contrary to public policy in Virginia. That is a very serious statement to make, because anything that is contrary to public policy in any state is struck down. The question becomes what is the status of Muslim marriage contracts in Virginia? Several cases have come to my attention since that time.
"When you divorce women and they fulfill the term of their “iddah”, the Qur'an said, "either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them or to take undue advantage; if anyone does that He wrongs his own soul" (2:231).It also said: "…[T]he parties should either live together in kindness or leave each other charitably …" (2:229).But there are very few Muslim marriages at the divorce stage where the parties separate charitably. It's very unfortunate and it is against what the Qur'an says. Often the husband does not want to pay the last part of the mahr. The result is that expert witnesses are called to testify about what should happen under the Islamic marriage contract.
In the Virginia case, the transcript revealed that the court reached this conclusion based on the testimony of an expert witness. That witness was a Muslim professor of religion in a prestigious Virginia university. My search could not uncover, however, the content of that testimony because the parties decided to keep it un-transcribed, and hence unavailable to the public.
This result is disappointing especially in light of an e-mail I received a few months ago from an advocate of the High Court in the jurisdiction where the marriage contract in this Virginia case was entered into. Though now living in the U.S., this Muslim couple was married outside the U.S. To avoid personalizing this case, let us call their country of origin “Country X.” When I was traveling two summers ago to Country X, I mentioned that an Islamic marriage contract executed in that country was found unenforceable in an American court. I addressed the bar association and the judges of Country X. They were very concerned about the situation and wondered what they needed to do to make their marriage contracts enforceable in Virginia and other American jurisdictions. Having no idea why the American judge made his decision, I could offer no definite answer. The discussion made its way to the newspapers in that country, because there are many Muslims in the U.S. who married there before immigrating.
The court decision is alarming because Virginia has a large Muslim population whose marital relations are based on Islamic marriage contracts. There are at least seven million Muslims in the US, and a large concentration of Muslims in North Virginia alone. Richmond has several mosques. All of them are likely to have been involved in the preparation and execution of Muslim marriage contracts. Are we to conclude that all these marriage contracts (I'm sure many in this room are parties to one of their own) are all null and void in Virginia?
The most disturbing aspect of the order is that it was based on testimony by an expert Muslim. The judge reached this opinion not because he had a certain image of or bias against Islam. He listened to an expert Muslim witness and based on that testimony he reached his conclusion. The problem that this fact reveals is very basic. Many Muslim men, whether imams of mosques or professors of religion, are not sufficiently familiar with Islamic law. Often, they confuse their cultural beliefs and practices with Islam itself. An American judge has no way of discerning the difference in the absence of more reliable sources of information. If I am a non-Muslim American judge and a Muslim expert witness, a Muslim professor of Islam (how more reliable can an expert witness be?) or the imam of a masjid walks into my court, then I am inclined to believe that I am going to get the real story.But that is not always the case.There are some important issues about who can, with authority, interpret Islamic laws, and the judges are not aware of this.
Now consider the fact that the Islamic marriage contract used in this country is usually a one-page document. Fill in your name and the name of your spouse, the names of two witnesses, the name of the imam, the amount of the mahr, and underneath in fine print it says “governed by Islamic law." That's it. What is a judge to do with that, given the separation of church and state? The judge can't tell the clerk, "Go back to the Qur'an and tell me what the Qur'an says" or “what does Islamic jurisprudence say?" We have not told the judges what the parties contracted upon; we just told the judges to go back to Islamic law. You can immediately see that we have inadequate marriage contracts.
Suppose the judge looks at the document, and it either uses the word mahr or sadâq, and says here is the amount of money the prospective husband agrees to pay to the prospective wife. What is “mahr”? That is a basic term of the contract and the judge has no idea what it means. While a statement about Qur'an or Shari`ah may clarify many issues for a Muslim judge, it does very little to enlighten an American non-Muslim judge. Consequently, she has to rely on an expert witness who may provide, as I've seen often happen, incorrect information.
In one case an imam was willing to testify that the husband owed nothing to his wife because she left him. Sometimes we get so attached to this world that we're willing to sell away the other world to save a few dollars.
In Islam if a woman wants out, she gives back the dowry money. That's called khul`. There is an exception to the rule; a woman can seek judicial divorce for harm (dharar) without losing her delayed mahr. The husband need not physically torture her; under Jordanian law, under Kuwaiti law, just verbal abuse is sufficient. The imam did not go into the exceptions. It may not have been intentional. Perhaps he didn't know. In this case the husband transmitted venereal disease to the woman, and therefore the harm was clearly established. It was not a question of fact, but the imam did not mention the exceptions.
In one case a man ordered his wife to leave the house, and sent her to live with her brother, her only relative in the US. He simply did not want her around anymore. He then waited a year and sued her for divorce on the grounds of abandonment. Other Muslim women told me that they know of several Muslim men who tired of their wives and forced them to go back to their country of origin. Then they sued them for abandonment.
I went to the imam and council of the mosque and I explained to them the importance of the case because it was taking place in a jurisdiction neighboring that where the judge stated that Islamic law was against public policy in Virginia. I said, "It is your Islamic duty to see that Islamic law is properly observed in this case. Otherwise we will have one precedent of ignoring Islamic law piled on top of another. I need your help." I didn't get that help. The leadership just listened and stared. And argued. After two weeks I found out it was very hard for them to support Islamic law in this because it meant the husband would have to pay. But the husband was the son of a major donor to the mosque.
On one occasion a well-known Islamic scholar said to me, "Mahr is the bride price." This is abhorrent. It is my suspicion that it is such testimony that the judge heard in his court that led him to say "slavery is over in the U.S., if Islamic marriage law says women are sold into marriage, then we will not enforce it in this country."
The interpretation of mahr as bride price is clearly contradicted by the Qur'an, which states that sadâq is a gift (nihlah) from the husband to the wife. Yet, if a witness were to testify in an American court that sadâq is bride price, then we should not be surprised if the judge was offended and refused to enforce the terms of the marriage contract. Is this what happened in the Virginia case? We do not know because the public record is not complete.
It's not just the expert witnesses. It's also the lawyers. In Islam there is a form of marriage in which the woman retains for herself, in the marriage contract, the right to divorce her husband. It's called "keeping the ’ismah in her hand." This language, “keeping the ’ismah,” has two different meanings in the Muslim world. In some countries (Jordan, Lebanon, Syria, etc.) it means the woman may divorce at will. In other countries it could mean that the husband loses the right to divorce and only the woman can divorce, which is an extreme result. And there are certain jurisdictions which will allow the woman to keep the ’ismah in her hand, but she could lose it very easily, so you have to learn all these jurisdictional distinctions.
In one case, a woman had written in her marriage contract that the ’ismah was in her own hand (malaktu amri biyadi), so that she could divorce at will. This meant that, when she wanted to divorce, she would simply tell her husband "I divorce you" and then goes to an imam to record the divorce, and she would be done. The husband’s input/consent is not required for this process. This form of divorce is very different from khul`, which does not involve ’ismah, but involves giving up the woman’s mahr and, some argue, obtaining the consent of the husband.
In the khul` form of divorce, the wife tells the husband "I want to leave you; take your mahr and go." Traditionally this has been interpreted to mean that the wife must first get the husband's consent to khul`, which is not really in the prophetic tradition. In that tradition, the Prophet said to a woman who had received a garden as her mahr, "Are you willing to return the garden?" She said: “yes,” and they were pronounced divorced. Yet many Muslim countries require the consent of the husband, and that has led to husbands blackmailing their rich wives. In some cases, the husband demanded not only the return of his mahr, but also an additional bonus of hundreds of thousands of dollars. For this reason, women who cannot obtain khul` for lack of spousal consent, end up asking for judicial divorce. So, what kind of a right is this khul`? It is almost useless!
That is why in the 1960s a court in Pakistan revisited the issue and concluded from the Qur’an and the prophetic tradition that the consent of the husband is necessary in the case of khul`. Under this view, you have a khul` when the woman says "Here's your mahr and goodbye. "Nobody picked up on this Pakistani opinion although it was excellent jurisprudentially. But, in January of this year, al-Azhar in cooperation with the Egyptian government changed the law of khul` so that the consent of the husband was no longer required. Some journalists protested that the change spelled the end of Islamic law in Egypt; but the change in the law was passed and now Egypt follows the prophetic tradition of granting khul` without the consent of the husband. Although it is too early to say, there are other countries getting ready to follow suite.
Let me go back to the case where the woman had kept her ’ismah.Her lawyer was a Jewish woman familiar with the Jewish law of divorce. Encouraged by the general similarities between Jewish law and Muslim law, she extended that analogy to the law of khul`. But Jewish law does not have a counterpart (as far as I know) to khul`, as understood by the Pakistani and Egyptian jurisdictions. So, to divorce, the Jewish woman must obtain the consent of her husband, which consent can be unreasonably withheld (this is the get process). Further the judge or rabbi is unable to grant the woman judicial divorce.
In the case at hand, although the consent of the Muslim husband was not required, the wife asked him to sign her declaration of divorce to document the fact that he was on notice. The lawyer, believing that the signature of the husband was necessary, examined it very carefully and was troubled by it. She noted that it was quite different from his signature on the other documents. She said, "I'm afraid that we might not have his consent to the divorce."
I said, "Your client is not relying on her husband’s consent for divorce, she's using the ’ismah form of divorce; the signature is not necessary and is not part of the evidence." The lawyer said she did not know that about Islam. The same is the case with Christian lawyers. They analogize to their own religion and some of these analogies just don't work. So you have to educate your lawyers who are from other faiths about how Islamic law works so that they can then give the right presentation to the courts.
Many women do not even know their rights under the marriage contract in Islam. I'll start with sadâq. It is a gift from the husband to the wife. The amount of the sadâq is to be agreed upon by the two parties while negotiating the marriage contract. They may agree that the full amount would be due at the time of the marriage, or that part of it would be postponed to a later date, which is more common since the young husband may not have the cash up front. Often, the largest portion of the sadâq is postponed to the earlier of the divorce or death of one of the spouses. In either event, the postponed amount of the sadâq becomes due immediately without any court action. You don't have to go to court to get your muta`akhir (the delayed part). In the case of death of the husband, the sadâq becomes a senior debt against his estate, separate from the wife's inheritance rights. Thus even if the estate would become exhausted by debt repayment, the wife would still get her sadâq first and without delay.
The sadâq is a pure right of the woman herself. She is free to spend it any way she pleases. No one may touch it, not even her father or her husband. In some countries I visited they told me that women were being pressured by to show their love for their husbands by saying "I forgive you the muta`akhir, you don't have to pay me the latter part of the mahr.” Then, when they get divorced they realize they weren't very smart to do that. Another mode of customary pressure on the woman is to say "You get more barakat, more blessings, if you ask for a man to give you two or three dollars." Then when the woman gets divorced at fifty she is in trouble because that is all that she gets on her way out of the house.
What I have said about the mahr is true about all the money of the woman. Islam gave the woman full financial independence. No one has the right of guardianship over her money. This is the reason that Abu Hanifah says that the woman has the right to enter and execute her own marriage contract without a wali, because if she is free and independent with regard to money, marriage is much more important and we should give her self-sufficiency in marriage.
This situation follows from two basic Islamic legal concepts. First, a married Muslim woman is legally entitled to her financial independence. Her husband may not touch any of her assets. Second, the husband is obligated to support his wife, even if she is wealthier than he is. She has no obligation to support her husband. Any money she gives him is regarded as charity or gift or a loan.
These legal facts are part of a larger framework of Muslim women's rights. In this larger framework, a Muslim woman retains her maiden name upon marriage and is not obligated to perform housework If she chooses not to cook, her husband is obligated to bring her prepared food. Understand that all of the major imams take this position. This is not a "women's lib" position. These facts rest on the recognition by Muslim jurists that the marriage contract is not a service contract. The recognition is based on the Qur'anic view of the marriage contract: it is not for service, but for muwaddah wa rahmha, for sakînah, for human companionship. It is not entered into so that the husband can find somebody to cook and iron his clothes. Where the sadâq is large, it is usually viewed by the woman as an important security net for later years. That is why women say, "I don't want your money now, but on death or divorce, I want a million dollars. "That was not uncommon in my circle in Lebanon. Of course, when the lira dropped in value there was a wave of divorces. Then, the shari’ah courts intervened and adjusted the amount of the mahr to inflation; and then things stabilized.
Because of these large sadâq demands, the government in the United Arab Emirates placed a cap on the amount of sadâq. This action by the government of the Emirates is questionable because the Qur'an gave the women the right to any amount they please and let the market forces determine whether they could get it or not.When the khalifah Umar ibn al-Khattab said "I want to cap the mahr" an old woman stood up in the mosque to argue with the khalîfah of all the Muslims.
We do not know this woman's name; she didn't belong to an influential tribe. All we know is that she was an old woman in the back of the mosque and said, "You cannot take away from us what God gave us."
He said, "What is that?"
She cited the Qur'anic verses that "even if ye had given the latter a whole treasure for dower take not the least bit of it back: would ye take it by slander and a manifest wrong?" (4:20) and Umar said, "The woman is right and the khalîfah is wrong," and he took back his idea. Yet now we see government again putting a cap on these.
In many Muslim countries, the tendency, usually introduced by the parents, is to minimize the amount of the sadâq, as a way to of showing upper class stature, or piety. In these cases, women suffer upon divorce, especially if they had moved to the US, lost their families, and have no ability to support themselves. Consider the similar story of Shah Bano in India. A rich husband divorced a 70-year-old woman and gave her a very minimal settlement–like a hundred dollars. (That was also the case in Virginia, where the judge said that the Islamic law of marriage was against public policy. Had he said otherwise, and enforced the contract, this older woman who was in her late forties, would have been given about $300 and sent into the streets of India with no means of support.) In the Shah Bano case, the woman went to court and asked the husband, "Is this all you're going to give me? After all my life with you? At aged 70, you're rich and I'm going to get pennies?" The non-Muslim Indian court intervened and tried to interpret Islamic law so as to give her maintenance. The act of a non-Muslim court trying to interpret Islamic law was unforgivable. There were riots in the streets. Finally, Shah Bano dropped her case under pressure from the Muslims community who did not want to give the Indian government further opportunity to interfere.
Faced with Muslim marriage contracts, some American judges may treat them as prenuptial agreements. If they do, then our usual American laws about property distribution and other financial matters upon divorce would not apply. Instead, the marriage contract provisions will take over. The first consequence of this view has usually been that the sadâq provision will represent the full financial settlement between the parties. Where the amount of the sadâq is high and the length of marriage short, in one case I saw, even the lawyer for the woman refused to go after the husband for the full amount of the sadâq. He said, "She lived with him for only three months. Why should he should give her $50,000?"
I said, "That's her sadâq. If he spent only one minute with her and consummated the marriage, she gets $50,000."The lawyer had real difficulty understanding that. These are the sorts of things we need to explain to the women, to the lawyers, and to the judges.
The policy of not enforcing the terms of the Islamic marriage contract causes problems for the majority of Muslim women in America, many of whom use the sadâq as a security package. It may also create constitutional issues relating to the free exercise clause, because Muslims would be restricted then from exercising fully their religion. But then what is a judge to do?
One thing we can do for the judge when we execute a Muslim marriage contract is to define the terms, define all the rules, make it clear which madhhabwe are following, which point of view this couple is committed to. This means that a marriage contract would be much thicker than this presentation, something like a book. That's exactly what I'm hoping to work on at the National Humanities Center next year. I'm hoping my book will include: What are the definitions of the various concepts in the Islamic marriage contract? What are the rules of the various madhhabs? And how do they work in the case of divorce? Then the marriage contract could be a page or two with an appendix, which is the whole book, that explains to the judge so that the judge does not have to go and ask an "expert" witness who does not know what the rules are. So we can safeguard the position of Muslim people from here on if they use the Muslim marriage contract. However, I don’t know what to do about those women who have gotten married already in other jurisdictions and did not safeguard their rights.
Even with this book, the question remains: Is the Muslim marriage contract a pre-nuptial agreement that cuts off the rights of Muslim women under American law or not? Is the Muslim marriage contract a representation of all the woman’s financial rights at divorce? If the answer is yes, it means that her sadâq is all that she is going to get upon divorce whether she is 50 or 20, or 80.But there are other notions in the Qur'an beyond the concept of mahr that have been ignored for a long time that actually specify a more equitable distribution of marital property among the spouses. It is time for us in America to develop this jurisprudence and hope that other jurisdictions around the world will find it interesting enough to for them to adopt.
[Questions and Answers]
Q.: Please clarify the concept of ’ismah.
Al-Hibri: The concept of ’ismah, or the wife’s right to it, in a marriage, is a right that a woman negotiates with her groom at the time of the marriage. It is a condition of the marriage contract, which he may accept or reject. If the groom is not willing to accept it, then the woman may not wish to proceed with that marriage. If the groom accepts the condition, then it should be recorded in the contract as a condition of the marriage. Once the condition becomes part of the contract, then the woman does not need the permission of the husband to exercise it. Permission of the husband is no longer relevant.
Q.: In the marriage contract you can pretty much negotiate everything including the fact that you do not want him to get married to other women.
Al-Hibri: You can put a variety of conditions in the marriage contract, not just the ’ismah condition. One such condition is to require the groom not to move his prospective wife from her city or country. If he does, she is divorced from him at her option. Some major jurists have accepted that condition as valid. Others have accepted, for example, the condition that if the husband marries another woman (polygamy) the first wife is entitled to divorce at her option. However, some jurisdictions do not accept certain conditions. For example, this last condition about not allowing a husband to marry a second wife is rejected by some jurisdictions as against sharî`ah and therefore null and void. Any condition viewed as contrary to sharî`ah or contrary to the intent of the marriage contract–for example if you make a condition that you will not have sexual relations–is considered null and void, but the contract remains valid. So, it is a complex situation.
Q.: What is being done in terns of abusive marriage in this country through the legal system and particularly with regard to Islamic marriages?
Al-Hibri: I got a call from a Muslim convert, a woman who said "I really want to be a good Muslim, but I'm so black and blue that I can't do it anymore."
I said, "What do you mean?"
She said, "Well, I'm trying as hard as I can to be a good wife, but my husband's beatings have gotten so much worse that I just cannot bear it."
I said, "Why do you have to bear it?"
She said, "I talked to the imam and he said it's my fault, that I provoked my husband and that I have to be obedient and he will stop beating me up."
I said, "Did you talk to anyone in your community?"
She said, "Yes. The women told me, 'You better not be such a bad wife that you bad-mouth your husband in public and now people know that he beats you up; that's not a very nice thing for a wife to do.' I'm at my wit's end. I've tried being obedient; I've tried being nice; I've tried being a good Muslim and I'm black and blue."
I said, "That's not what being a good Muslim is about."
I sat on a task force of religious leaders that the Virginia legislature had put in place to study violence against women. There were various religions represented around the table. According to one Christian voice at the table, there are some Christians–not many–who believe that it is okay for the husband to beat the wife to discipline her. People have local customs or cultural beliefs that they then say are religious. There are others who do not know enough about their religion. This poor woman was a convert; she thought this was part of Islam. My feeling is that the first thing we need to do is to educate the community about what Islam says about abusing women. That's why in my lecture I managed to throw in a few words about the fact that verbal abuse alone is sufficient for a grant of divorce in Kuwait, Jordan, and maybe a couple of other places. Islam does not condone the mistreatment of any human beings, not even a cat, according to the Prophetic hadith. We need to do something about that. It is a serious problem.
Q.: I don't think we necessarily have to follow other countries whether Saudi Arabia or Jordan or whatever. We need Muslim scholars in North America to study the teachings of the religion and engage in ijtihâd. Whatever was in the past should not limit us except what is in the Qur'an and sunnah, and other schools of thought are just there to learn from and not necessarily to limit. My interpretation of sadâq is that it is part of the initiation of the contract of marriage but if there is a divorce a woman should certainly have other rights and in accepting sadâq she isn't giving away her other rights. Maybe you could clarify that.
Al-Hibri: Any time you hear about a problem in Islam and a ruling about that problem, the main question to ask is this: Is the result just? Because the hallmark of Islam is justice. If the result is not just, then something is very wrong. Somebody misapplied the law; some issue got messed up. So in a general fashion, I would say, "Yes, you're right." But if you are going to be a legal scholar, a jurist, the next question is: "What are you hanging your hat on? Or, what are you hanging your turban on?" What is the jurisprudential argument, the Qur'anic verse, the hadith that you're relying on. That is the question. That's what I need to write about because no one has done it. Why haven't they done it? There's a very easy answer. Why is it that for over fourteen hundred years no one cared about the fact that all a Muslim woman gets upon her divorce is her sadâq, which may be pennies? Some husbands may give her also a dress or two, a pair of shoes, something to make her happy, because the Qur'an recommends a mat`a for a divorced woman, and that has been interpreted to mean something minor that would make her happy. It could be a handbag; you can buy it from Paris if you want to be nice. That's it. I'm not exaggerating; that's what happens. You are welcome to say otherwise, but where's the jurisprudence for it? What I have discovered is that the Qur'an does give a basis for additional financial rights for the woman but no one bothered to develop those sufficiently because everyone was living in a Muslim country. In a Muslim country you have the notion of al-takâful al-ijtimâ`i. If a woman gets divorced it's not a big deal. Now it's a big deal, but historically, "It's only a husband." She goes back to her family, brothers, father, and sisters. That's her family. Husbands come and go. In our families the real basic relationship is the blood relationship. You can divorce a husband; you cannot divorce a brother or a father. So under Islamic law when she gets divorced, guess who has to maintain her? Her father. She doesn't need money. Even if has her independent fund of money, and she never has to pay a penny. If her father is poor, her brother pays, if her brother is poor, her uncle pays, and so on. And if she has no one, the head of her state pays. She is never left with no one to maintain her. Plus, why does a man want to give the woman too much money? She's more controllable if you say sit in my home and I'll maintain you. So, it's patriarchy and it's old family arrangements that are different from today. Today, she does not have the family arrangement in the U.S. Today, if she gets divorced, she's out on the street. She might not have children. Her parents are God knows where–if they're still alive. She has nobody. It is not a luxury for her to look back to the Qur'an and ask what more financial value can she have in her marriage.
You speak about ijtihâd. What you're talking about is something that is very popular these days. "Let's do Islamic ijtihâd for America. What does that mean? First of all, Islamic ijtihâd for America is not going to be that different from ijtihâd in any other part of the Muslim world because there are certain things that are fixed in Islam. Monotheism is one of them.`ibidât, items of worship usually do not change, but mu`amalât, human dealings, are subject to variety from society to society. What does that mean? A free-for-all? You can do whatever ijtihâd you want? No. We have guidelines. The way we have worked those guidelines is first you study the Qur'an. If you want me to take you seriously, first you better know the Qur'an in Arabic. I don't want to work with you from a translation. I give an example. I have a Ph.D. in philosophy. I'm not only a law professor. I taught philosophy. I was an admirer of Hegel. I studied Hegel quite a bit, but I never called myself a Hegelian, an expert on Hegel. Do you want to know why? I could never read German. That's just a standard professional requirement in this country. Why would we have a lesser requirement for Islam? You read the Qur'an in Arabic and understand it; you read the hadith; you read the jurisprudence of the major imams and then come talk to me. If you read, for example, the jurisprudence of Imam Abu Hanifah, you will find out that he himself specifies in his reasoning his cultural assumptions. All right. I'm no longer living in the culture of Imam Abu Hanifa, but I'm bound by the Qur'an. His reasoning is good. You throw out his assumption; what happens to the remainder of the fiqh? That's how you rejuvenate fiqh. There are rules and regulations. It's not like I'm making something out of nothing. I'm still relying heavily, first of all on the Qur'an, then on the hadith, and then on the jurisprudence of those before me because I respect their work. People must understand that it is not that easy to do ijtihâd for America because you still have to know what happened before America.
Q.: What is the difference between a pre-nuptial agreement and the Islamic marriage contract?
Al-Hibri: It could be a nuptial agreement rather than a pre-nuptial agreement, because you sign it at the same time as the marriage. Then you have to study under the laws of the various jurisdictions, what is the difference in counting an agreement as nuptial rather than pre-nuptial. By the way, it could also be post-nuptial, because many have a civil marriage followed by an Islamic marriage. I don't recommend it, by the way. What does that mean for their rights? You have to study specific jurisdictions to see what is the impact in each case. For those of you who say, "I wish I'd heard this lecture earlier, I would have negotiated a better marriage contract," if your husband is enlightened, please remind him that it is not too late, you can always amend.
Q.: Suppose I pass away and my wife inherits my social security and my pension, would that offset the sadâq mutta'akhir?
Al-Hibri: It’s a very good question. The first time I came across the question of pensions and such things was in connection with illegal polygamous marriages in this country, although it happens in other countries as well. Someone would be officially married to one wife and he goes and marries another Islamically, but she is not his wife under American law, because he already has another wife. The question is: Is he treating the two equally? The answer is no. As hard as he tries only the legally recognized wife will get the pensions, etc. Suppose you are 40 or 50 years old–it doesn't matter–and you divorce your wife today. Under Islamic law, she is entitled right now to the delayed part of the mahr if there is any (you might have paid her up front). But you want to give it to her later. As corporate finance professor, I'm going to ask you, what happened to the time-value of money? What she's entitled to is her mahr now, in one installment at the value of the dollar today. What about the payments she's going to get later which you didn't factor in? That's under civil law. The question is whether she's entitled to them at all. Maybe, maybe not, depending on the ijtihâd you develop. But let's assume she's not entitled to the money. You paid her the mahr and now she's getting extra money from you. Then it’s between her and God if she's going to take money she is not entitled to. But that doesn't waive your right to pay her sadâq when it's due. That's your duty. The other payment, if she believes she's not entitled to it, it is her duty to give it back to you. Let me give you an example. I know of a case where the court awarded a woman a large amount of money and the women had conscience pangs. It was inheritance money, not sadâq. She had a disagreement with others who would have inherited more under Islamic law. She said: “what should I do? Shall I not go under American law?" I said: “no,” because if she didn't go under American law she would have gotten nothing, as the others weren't going to give her her share. I said, "Get it under American law, then give back the part you think they're entitled to. It's okay. If you're in a society where you cannot establish Islamic justice, use the American system, get the payments and then give back whatever you think is beyond what you deserve.
Q.: Would you elaborate on why you do not recommend a civil ceremony be combined with an Islamic contract?
Al-Hibri: That's not what I said. I said you should have the religious ceremony first and then the civil one. If you have the civil one first, then you are married in the eyes of the law but not in the eyes of God and there are complications resulting from that. You either do them at the same time or you do the Islamic one first. Perhaps the best approach, in my view, is to do them at the same time if you can. I have to study that from the legal point of view of the various jurisdictions before I write about it. When I write about it, I don't know how I will come out, so please don't listen to me now, wait a little bit longer.
Imad-ad-Dean Ahmad: I don’t know if there may be a simpler question buried beneath that seemingly complex one. A number of Muslims I know are not aware that if you have a marriage license and you have a marriage ceremony performed by a recognized imam, that ceremony is recognized by the state. In other words, you have performed the ceremony you are licensed to perform. You are married in the eyes of the law provided the imam registers that marriage with the county in which it is performed. This is separate from the more complex questions of what are the terms of the marriage, not whether you're married.
Al-Hibri: In that case you have a nuptial contract. But you do not always have a recognized imam doing the marriage ceremony, then it would not be recognized in the eyes of the state. These things could get complicated. I know a case where a woman had two husbands. How? One under Islamic law, one under American law. She couldn't divorce the other one. She wanted to divorce the one under Muslim law; she couldn't. She wanted to divorce the one under civil law, but she didn't have the money to divorce him. So she was stuck with two and actually had none. This could get sticky.
Imad-ad-Dean Ahmad: One should make sure that the county would accept the imam's filing.
Q.: Beyond educating the courts, lawyers, and Muslim scholars, do you see in America, where so many of us are converts and don't know Arabic, and are struggling to understand the subtleties of Islam, is there any movement towards pre-marital counseling so that a couple, before getting married, can gain an understanding of these various options? Do we have enough imams capable of carrying out pre-marital counseling without making things worse. Even before that do we even have a beginning of preparation for education for adulthood? Do you see any movement in that direction? Will you put out your book in paperback?
Al-Hibri: I'm trying to think who I will have publish my book. If it's a university press, it's not going to be as accessible to Muslims who need it as a marriage document. We'll resolve these issues once the book is written. But you're asking some very important questions. Let me first comment about my condition that somebody who does jurisprudence ought to have read the Qur'an in Arabic. I want to point out to you that some of the major jurists in the early history of Islam were not Arabs. They just studied Arabic and learned the language of the Qur'an and did excellent jurisprudence. Being an Arab is not a requirement, just knowing Arabic. Unfortunately, these days not even Arabs know Arabic; so its' not enough to be an Arab either. A major example of this is what colonialism did in Algeria. When the French closed down all the religious schools and then they opened limited French schools for the elite in Algeria and created different strata of Algerians who could not communicate with each other because some are thinking and educated in French and some are thinking and educated in Arabic, although they don't necessarily read Arabic very well. I think that's part of what we're seeing in Algeria now, a lack of communication. Arabs in the Muslim world, as a result of colonialism, no longer have a handle on the Arabic language. But, if you're going to write about the Qur'an whether you're an Arab or a non-Arab, then the first thing you should do is to learn Arabic. Or, if you don't know Arabic, at least in that case show humility, for heaven's sake. We have people writing like they are the successors of Malik and Abu Hanifah and they are explaining the Qur'an in ways that are ridiculous.And when criticized they take offense and are aggressive about it rather than showing humility. You can't do this. This is not a political party. This is not about who's going to win the argument. The argument is won in the afterlife. Look at what the Muslims jurists did throughout the centuries. Every one who ever wrote something and was worth anything ended his chapter with Allahu a`lam. God knows best. And Malik himself said, "Don't emulate me; take from where I took. "In other words, every one of you should think for him/ herself. Malik himself forbade the khalifah from imposing the Maliki madhhab on the people of that country, which was the Abbassid Empire. Today, we are less knowledgeable scholars than those big ones I'm talking about, but we have no humility. We all think we have the answers. Step number one: let's be humble. Sometimes we're more wrong than right. As Abu Hanifah said, "I'm a human being. I say right things and I say wrong things. Just take what accords with the sunnah and the Qur'an and leave out the rest. "I tell you the same. What can someone like you do? You're a good Muslim, but you don't know Arabic. What should you do? Give Up? No. You befriend someone like me. [Laughter] No, it's true; we team up. When you have a verse you don't understand you speak to someone who knows Arabic. You team up. As far as the social services, we definitely need that.
Q.: You mentioned that Islamic law exempts a woman from cooking and she could ask for prepared food, like calling for pizza, or something like that.
Al-Hibri: Hopefully better. [Laughter]
Q.: I was struck by listening to a distinguished imam who went much farther than that and said that strictly speaking a woman is not required to do house chores at all and that housework has never been part of the marital duties and that in fact a woman could ask to be paid for doing housework.
Al-Hibri: I said the marriage contract is not a service contract. In fact she doesn't even have to nurse the baby unless the baby will take no other nurturing except the mother's. Then it becomes a humanitarian thing. She is then required to nurse the baby. If she's divorced and nurses the baby, the father must pay her to nurse the baby.
Q.: If that is indeed the case, then isn't it ironic that the Muslim woman is proclaimed as a persecuted woman when she's in fact a spoiled woman.
Al-Hibri: She's not, unfortunately. We'd love to say that, but she's not. Because while I've told you about all this jurisprudence, I've also studied the personal status codes or family laws of the various Muslim countries and in the various codes they say that part of her duties is to oversee the house. That is, if she has maids she has to oversee them and if there are no maids she oversees herself; she does the cooking and cleaning herself. Where did this come from? Why is it in the family status codes of several Muslim countries? Partly culture. Abu Zahrah, the well-known Egyptian jurist says you go according to custom in many ways. Custom has entered many of our laws. This is supposed to be a positive thing. Remember, in the Qur'an it says, "…I made you into nations and tribes so that you get to know each other." God did not want to straightjacket all Muslims to be alike. God wanted the customary and cultural variations. But what happened was that the customary laws that were introduced into the Islamic laws of Muslim countries, became obsolete and oppressive in time; but thanks to the new Jahiliyyah, Muslims forgot the non-sacred origins of these laws and preserved them.
Source: http://www.minaret.org
