This is the fifth in a series of articles on marriage. They are taken from the seminar Why Marriage Contracts & Agreements Matter by Shaykh Faraz Rabbani.
Marriage agreements are not strictly speaking required. It would make sense before marriage for the two parties to agree on the things that are of significance to them. If societies are stable, there is great wisdom in social, cultural, and other types of norms, as norms give us facilitative defaults.
The key aim of Islamic teachings is the preservation of good (worldly and religious) and the prevention of harm. Marriage in our times has varying expectations.
Marriage agreements are promissory. They are commitments that each party makes that are not contractually binding. Not honoring them doesn’t annul the contract. However, one cannot make a promise that one does not intend to fulfill. If a woman wishes to stay in her hometown and the man promises that he won’t leave it, he is morally bound by that because this is a promise that another’s action is made based on.
If one makes a promise that another’s materially significant action or life’s significant action was dependent upon, such a promise is morally binding. Certainly, in later scholarship, the ruling is that one can be taken to court for a promise which a materially significant action is based on.
As well as signing and keeping the marriage contract, the marriage agreement should also be signed and kept. Parents don’t have to see the marriage agreement yet they can be consulted.
If a man makes clear in the marriage agreement that the couple will live in a certain place and the woman goes against that, he can exercise the right of divorce. Technically, he could divorce her regardless, but the reason he may choose to do this is so that people don’t rebuke him as it was agreed on beforehand.
Another benefit of marriage agreements is to clarify expectations and give a basis for restoring agreements. It’s best not to be frivolous though. If a woman is keen on fitness and says to the man that he will exercise at least five days a week, otherwise she will divorce him (connected to her right to divorce) that is a tad drastic.
There should be facilitation of agreement, not things that would lead to further argument.
What Matters Should Be Specified?
Finances. It is a husband’s obligation to provide for the family, even if the woman is wealthy. Furthermore, the wife’s money is hers. The husband’s money is his but he must provide for his wife. Property is not shared by default. It belongs to whoever bought it. The financial arrangement should be in writing.
Children. People have disputes about all kinds of things related to children. One should agree to matters about having children as well as guiding principles on raising children. An example of this is the education of the child. Will the child be schooled publicly, privately, or at home? If something is very dear to the parties, then let them have it in writing.
Work and education. The basis is certain prioritization of a man’s role and a woman’s role. However, the husband may not want his wife to work, or she may not want him to continue his specialization in studies. The best time to agree to this is in advance, and it’s best to put it in writing so it doesn’t lead to dispute.
Religious and community engagement. If it is important to the parties, they should agree to it in writing. In dispute, people don’t behave rationally. The husband may involve himself in certain study circles, but the wife may insist he is home at those times. Other social engagements should be considered also, such as if the husband is a regular golfer, yet his wife may object to his sporting timetable if there was no prior agreement.
Living arrangements. A woman has a right to a “Bayt Shar‘i,” minimally. She has the right to her own private room, living space, and private access to a washroom and kitchen. Depending on the finances, this could be separate from anyone else or if they have limited means, it could be shared kitchen space.
Imam Ghazali cautioned in his Book of Marriage (Ihya) against living too close to the parents. He held that the right thing is to be close enough so one can visit them frequently but not so close that they meddle in one’s affairs. However, different people have different family circumstances.
The woman has the right not to live with her in-laws, but a man could choose that he wants to live with his parents. Neither party can just unilaterally impose this on the other. Even if a woman does agree to live with her in-laws, she can retract that later.
A related consideration is traveling overseas. The Hanafis generally say: It is a woman’s right to refuse overseas travel if it means that she is away from her family and Community or the society she’s accustomed to. Therefore, the couple should be clear regarding this.
Dispute resolution. The simple thing to do is to agree on a dispute resolution mechanism. Couples will fight, so they should be clear on how to resolve things. In addition to this, they should agree on who is involved in the dispute resolution. Another key factor relates to the event of divorce, how will the parties handle issues of child custody, for example?
Approach marriage with clarity and agreement. The contract ought to be proper, even if that means spending some time on it. Don’t sign off on what you have not read. Also, before entering marriage, one should know what one is getting into. A sensible traveler spends time choosing the right hotel for a two-week trip, but marriage is for a lifetime, God-Willing.