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"Misyar" marriage

Wednesday, August 02, 2006

Khalid Chraibi

“(Lawful unto you in marriage) are (not only) chaste women who are Believers, but chastewomen among the People of the Book, revealed before your time, when ye give them their duedowers, and desire chastity, not lewdness, nor secret intrigues.” (Quran V,5)

Summary of major findings :

Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage inMuslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia isa sine qua none condition for its validity.Muslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, withinthe framework of the marriage "misyar", that the woman will give up some of the rights thelaw confers to her as a wife, this is perfectly legal, if that is her will freely expressed.But, in the event of a change of circumstances, she can assert all the rights which the lawconfers to her in her capacity as a wife (like the "nafaqa" for example), because these areinalienable rights within the framework of the marriage.The clause of renunciation constitutes only a promise not to assert certain rights. It has anundeniable standing as a moral commitment, but is of no value on the legal level. The wifecan thus respect it as long as she wishes, and reclaim all her legal rights when she needs to doso.Such a clause does not affect in any way the rights of the children who could be born fromthis union, such as the recognition of paternity, the effects of filiation, the financialresponsibility of the father for his children, or the lawful rights of the wife and children totheir share of inheritance, etc.Despite the fact that the "misyar" marriage is perfectly legal, according to the theologians, andthat the wife can reclaim at any time the rights which she gave up at the time of establishmentof the marriage contract, many theologians like Muhammad Ibn Othaymin or NassirouddineAl-Albany, as well as many Al Azhar professors, are opposed to this type of marriage becauseit contradicts the spirit of the islamic law of marriage and has perverse effects on the woman,the family and the community in general.

Definition of a Misyar Marriage

"Nikah Misyar" or "travellers' marriage" (Arabic language|Arabic]]: {{Ar|حاكن رايسمل}}) can bedescribed as a legal framework of [[marriage]] in which a [[Islam|Muslim]] couple is united by the bonds of marriage, based on the usual Islamic marriage contract, but without thehusband having to take the usual financial commitments with respect to his wife. The latter exempts him from some of them by a clause of the marriage contract through which she givesup some of her rights (such as cohabitation with the husband, the equal division of the nights between all the wives in the event of [[polygamy]], the residence, the subsidy of maintenance"nafaqa", etc...). (1)The wife continues to carry out a separate life from that of her husband, living in her homeand providing for her needs by her own means. But her husband has the right to go to her home (or to the residence of her parents, where she is often supposed to reside), at any hour of the day or the night, whenever he wants to. The couple can then appease in a licit way their "legitimate sexual needs" (to which the wife cannot refuse herself).The marriage misyar represents, according to some, a spontaneous adaptation of the mode of marriage to the concrete needs of people who are not able any more to marry in the traditionalway in countries such as [[Saudi Arabia]], [[Kuwait]] or the [[United Arab Emirates]], because of the dearness of the rents ; the high cost-of-life in general; the high amounts of [[dowry]] required; and other similar economic and financial reasons. (2)It fits the needs of a conservative society which punishes severely “[[zina]]” ([[fornication]])and other sexual relationships which are established outside the bonds of marriage. The[[Theology|theologians]] explain that it is suitable for young people whose resources are toolimited to found a home ; for the all too-numerous widows living in the area, who have their own residence and their own financial resources, and who cannot hope to marry againaccording to the usual formula (or do not wish to), because they have dependent children, for example ; for the numerous divorcees ; as well as for the "old maids" who see their youthfading in an involuntary celibacy, without having tasted the joys of marriage, for one reasonor another. Thus, a million and half women are reduced to a situation of forced celibacy inSaudi Arabia alone. (3)The Sheikh of [[Al-Azhar]] [[Muhammad Sayid Tantawi]] and the well-known theologian[[Yusuf Al-Qaradawi]] note, however, in their writings and in their lectures, that a major proportion of the men who take a spouse in the framework of the marriage "misyar" arealready married men. (4)Some traits of this marriage are reminiscent of the Nikah [[Mut'ah]] which was practised inArabia before Islam, and is still practised by [[Shia]] Muslims as a legitimate form of marriage, although it is considered as an illicit one by [[Sunni]] Muslims. (5)But, whereas the Nikah Mut'ah is based on a contract with a fixed date of expiration, theMisyar marriage contract is concluded for an indeterminate period (even though the husbandwho enters into this union looks at it only as a temporary marriage, which ends up in divorcein 80 % of the cases).The popularity of misyar marriage today results, probably, from a misunderstanding about its

real nature, and about its true legal implications for the husband, the wife and the children thatmay be born from this marriage.

Licitness of misyar marriage

From a legal standpoint, the marriage "misyar" raises several complex issues : is it licit ?Doesn’t it violate the wife’s legitimate rights ? What is the legal value of the wife’srenunciation to some of her rights ? What effets does this situation have on the family and atthe social level ?Contrary to widely-held beliefs, misyar marriage fits within the general regime of marriage inMuslim law, and not in a special regime. Its fulfillment of all the requirements of the sharia isa sine qua none condition for its validity.Thus, when Muslim theologians say that the "misyar" marriage is perfectly licit, all they meanis that the contract on which it is based must fulfill all the requirements set out by the charia(agreement of both parties ; presence of a tutor in certain rites ; payment by the husband to hiswife (or to the "tutor") of a dowry of an amount agreed upon between them (which can beimportant or modest, according to their wishes) ; presence of witnesses ; publicity of themarriage...). (6)The Islamic Fiqh Academy (IFA), a specialized body of the Organization of the IslamicConference (OIC), has conforted this point of view in a fatwa (7) of April 12, 2006. (8) and(9)The clause by which the woman gives up some of her rights (the cohabitation of the couple,the residence, the subsidy towards maintenance (nafaqa)...) raises, for its part, more subtle points of law. Does it belong with this category of well-known clauses in Muslim law whichare against the essence of the marriage contract, and which vitiate the latter and make it null,as well as the legal union which is based upon it? Or, maybe, with this second category of clauses which are struck of nullity, whereas the marriage contract remains valid?The Sheikh of Al-Azhar Muhammad Sayyed Tantawi reminds one, in this respect, thatMuslim law confers on the parties the right to set up in the marriage contract certain particular stipulations relative to their reciprocal rights and obligations. When the parties agree, withinthe framework of the marriage "misyar", that the woman will give up some of the rights thelaw confers to her as a wife, this is perfectly legal, if that is her will freely expressed. (10)The former mufti of Egypt Nasr Fareed Wassel adds, for his part, that the woman canlegitimately give up some of her rights at the time of marriage, if she so wishes, owing to thefact that she has private means, for example, or that her father intends to continue to providefor her needs. But, in the event of a change of circumstances, she can assert all the rightswhich the law confers to her in her capacity as a wife (like the "nafaqa" for example), becausethese are inalienable rights within the framework of the marriage. (11)Wassell notes that the clause of renunciation constitutes only a promise not to assert certainrights. It has an undeniable standing as a moral commitment, but is of no value on the legallevel. The wife can thus respect it as long as she wishes, and reclaim all her legal rights whenshe needs to do so.