Firstly, a legitimate marriage has essential pillars that, if fulfilled, make the marriage valid. These pillars, although not unanimously agreed upon by all schools of jurisprudence, intersect in many aspects with the majority while differing in a few. These pillars are:

• Offer and Acceptance (᾽Ijāb and Qabāl): This is agreed upon by all.
• The Contracting Parties: Some distinguish between the one who performs the contract and the one upon whom the contract is performed.
• Witnesses: This is agreed upon in principle, though there is a difference in the timing of the witnessing, as it is a pillar at the time of the contract according to the majority, and a pillar at the time of consummation according to the Mālikīs.
• The Guardian (Waliy): This is a pillar of the contract according to the majority, but not according to the Ḥanafīs.
• The Dowry (Ṣadāq): This is a pillar according to the Mālikīs but not others.

Each of these pillars has conditions that must be met to fulfill them. Some scholars include these conditions within the pillars to avoid separation, such as the condition that the groom must be Muslim, which is a condition for the contracting party, or the condition of being free from impediments, which is a condition for the one being contracted upon.

Secondly, the essence of the marriage contract is that it is a contract of exchange according to traditional jurisprudential classification. The parties to the exchange are those who will benefit from it and those who provide the benefit. Intentions in contracts of exchange do not affect the validity or invalidity of the contract; rather, they are related to the reward or other consequences. Thus, if someone sells something with a valid contract but intends harm, the contract is valid legally, but they will be punished religiously. Conversely, if someone engages in a contract of exchange with good intentions, the contract is valid legally and they are compensated religiously.

Therefore, if a man marries a woman, or a woman marries a man, with a contract that meets the pillars and necessary conditions according to a recognized school of Islamic law, and one of them has an intention that goes against the contract or seeks an additional benefit beyond the contract’s terms, the contract is valid while the intention is invalid and does not affect the validity of the marriage.

Thirdly, the marriage contract has pillars and conditions that must be met for the contract to be valid. Once the pillars and conditions are fulfilled, the contract is valid in all cases. Documentation is not a pillar or condition but is for establishing the rights related to marriage. Marriage with its pillars and documentation is valid religiously and legally, and without documentation, it is valid religiously but may not be heard in court due to lack of documentation.

Fourthly, someone who resorts to a legitimate marriage contract without documenting it with the intention of obtaining a specific benefit that neither Sharī῾ah nor customary law (civil law) grants them, such as someone who wants to continue receiving a deceased spouse’s pension or a woman who wants to retain custody and the associated financial support, this is considered deceit and fraud, which is prohibited. This behavior reflects weak faith, as Allāh says: “But no, by your Lord, they will not [truly] believe until they make you [O Muḥammad] judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission.” [Al-Nisā᾽ 4:65]. Such actions are also prohibited tricks, as Ibn Qudāmah (may Allāh have mercy on him) said: “It appears as a permissible contract but intends something forbidden, as a means of deceiving and achieving what Allāh has prohibited, or to escape an obligation or deny a right.”

While we affirm the prohibition and sinfulness of such deceit, it does not affect the validity of the marriage contract and its consequences, similar to a woman marrying a man for his money rather than for what the marriage contract entails. If the contract is valid, the marriage is valid legally, though she is sinful religiously.Bottom of Form

Fatwā issued by Dr. Khālid Naṣr