Can I Put a Clause in the Marriage Contract to Permit Divorce If My Husband Remarries?
Answered by Shaykh Irshaad Sedick
In writing up the marriage contract, is it permissible to either state that my husband should not get a second wife / or state that if he is to get a second wife without my permission/consent, I would have a right to divorce him?
In the Name of Allah, the Most Merciful and Compassionate.
May Allah alleviate our difficulties and guide us to that which is pleasing to Him. Amin.
In Sacred Law, the marriage contract is the spoken form (offer and acceptance) between the bridegroom and the wife’s guardian, not necessarily a written document. However, it is Sunna to write it.
According to the renowned contemporary Shāfi‘i Mufti, Shaykh Nuh Ha Mim Keller, “Extraneous conditions added to the marriage contract, such as that the husband observes monogamy or the like, are not binding, being meaningless, though they do not invalidate the marriage agreement, which remains effective.” [Keller, Reliance of the Traveller]
Commissioning Another to Divorce
A husband may carry out a divorce or commission another to do so, even his wife. “The person conducting the divorce may effect it himself or commission another to do so, even if the person commissioned is a woman. The person commissioned may effect the divorce at any time, provided the one who commissions him does not cancel the commission before the divorce takes place.” [Misri, ‘Umdat Al-Salik]
Commissioning a Wife to Divorce
However, if a husband tells his wife, “Divorce yourself,” she is divorced if she immediately says, “I divorce myself.” Still, if she delays, she is not divorced unless her husband says, “Divorce yourself whenever you wish.” [ibid.]
Based on the above, a wife who wishes to do so may (though we don’t necessarily advise this) agree with her husband that he would commission her to divorce herself whenever she wishes. This may be added to a marriage contract, though there are other considerations, and this kind of contract should be created with the guidance of qualified and reliable scholars, and Allah knows best.
I pray this is of benefit and that Allah guides us all.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.