Muslim Marriage Research Articles

Implications of Islamic Mahr (dower) and African Lobolo (bride-price) on Religious and Customary Marriages and the Rights of Muslim Women to Inherit in South Africa

Abstract The monogamous and polygynous customary marriages of indigenous Black Africans have been fully legally recognised in South Africa since 1998. The outcome of a June 2022 apex Constitutional Court judgment will finally result in monogamous and polygynous Muslim marriages (nikāḥ) being fully legally recognized and regulated by the State by 2024. Since this recognition does not include the Islamic law of succession (which will not pass constitutional muster because of half-share to women), when Muslims die intestate, the secular law is expected to apply. The payment of mahr (dower) by the groom to the bride (an important ingredient of a nikāḥ contract) is therefore an important alternative tool for augmenting the inheritance of Muslim women during their lifetime. A novel fatwā issued by local Black African ulama in August 2022 brought to light several challenges faced by African Muslims regarding the relation of nikāḥ marriages to distinctive African traditional marriage practices like the lobolo (“bride price”) paid by the groom to the bride’s father. This paper examines the implications of mahr and lobolo on religious and customary marriages and the rights of local Black African Muslim women to inherit in terms of religion and custom.

Book Review: Mukaddam F Muslim Women between Community and Individual Rights: Legal Pluralism and Marriage in South Africa (Springer Nature Switzerland 2024)

This review examines the book by Fatima Mudakkam titled Muslim Women between Community and Individual Rights: Legal pluralism and Marriage Rights in South Africa (2024). The book explores the pluralistic nature of South Africa’s national legal system, focusing on the experiences of Muslim women governed by Muslim Personal Law. It provides a critical analysis of how this legal pluralism affects Muslim marriages and the civil rights of women within these marriages. The book is an essential contribution to the ongoing discourse on gender justice and legal pluralism in South Africa.

Limitations of Applicability of Civil Procedure Code to Family Court Proceedings

To summarize the versatility of civil law and what all it entails in a single tight compartment is akin to doing injustice to the vast field of civil law. To streamline the procedure of the same, the Civil Procedure Code came into the being. The code was introduced with the basic aim to rationalize and consolidate the process to be following while adjudicating matters related to civil law. With the introduction of Hindu Marriage Act, 1955, Muslim Marriage Act, Special Marriage Act, 1955 and so on coupled with the rise in matrimonial related disputes and resultant sharp rise in the number of cases being filed, the Family Courts Act, 1984 was incepted. Eventually all states too made their own rules to bring together the whole process in a linear manner. In this paper the author aims to analyse as to what extent CPC determines the functioning of cases filed under the ambit of family Law and if at all the family courts by virtue of Family Courts Act, 1984 have been given certain independence in this aspect. If yes, then where does that stem from primarily and in case of conflict between the two which one would prevail.

NUPTIAL AGREEMENT IN MUSLIM MARRIAGE: A JURISTIC ANALYSIS

The nuptial agreement is been gaining attraction in the Muslim environment in recent times because of the assumed benefit to protect either of the marital partners in the advent of divorce or separation. Prenuptial clauses usually take effect immediately after marriage consummation and every party can lay claim to the agreement in the event of a breach of agreement while postnuptial agreements are clauses agreed upon during the marriage period. Although there are complaints that Muslims from Western and non-Islamic societies might need prenuptial agreement in the place of khulʼ (redemption) to protect either party in the case of future divorces or separation, however, there are concerns about the rate of interest in the new couples from Muslim society opting for a prenuptial agreement. This study explores the concepts of prenuptial and postnuptial and their associated use by Muslim couples in contemporary reality. The study will examine why Muslim couples from Islamic society are opting for nuptial agreement rather than khulʼ regulations in Islamic law and the need to identify essential thresholds in juristic conditioning for nuptial agreements in a Muslim marriage, especially in the case of Shartu fāsid (invalid conditions) in a marriage agreement. The study uses a doctrinal approach to gathering and analysis of data from an Islamic perspective. The study proposed useful suggestions from the finding on juristic conditioning in the application of prenuptial and postnuptial agreements in Muslim society.

Muslims of Tobolsk Province in Second Half of 19th Century: Marriage Dynamics

This study presents an analysis of the content of handwritten records from Muslim metric books of the mid-19th century at the Komarovskaya Yurt Mosque in Tobolsk Province. The analysis focuses on the second part, which includes information on marriages and divorces. Building upon previous research analyzing birth data from the first part of mosque records, this work introduces, for the first time, data on marriages and divorces of residents of Western Siberia belonging to a single ethnic group: the mosque’s parishioners were Bukharans — migrants from Central Asia. A total of 116 marriage records and six divorce records were analyzed. The statistics suggest that the institution of marriage was stable. The study reveals the ages of those getting married, marriage conditions, dowry amounts paid, reasons for divorce, and polygamy practices. It is proven that despite the lack of surnames among the Tatar population in the 19th century, recording the names of marrying individuals, their fathers, witnesses, and social status in mosque records allows for the identification of each individual. Interfaith marriage contacts were not recorded during the analyzed period. The relevance of this research lies in providing new insights into Muslim marriage customs and social processes in a specific territory during the specified period.

Intermediaries and illegal gratification in the Indonesian bureaucracy of Muslim marriage

Intermediaries and illegal gratification in the Indonesian bureaucracy of Muslim marriage

Modernization and Legal Reform: Muslim Minors and Freedom of Marriage in India

Abstract This article presents a regional study of the mechanics of modernization and liberalization of Muslim law in India. I explore these themes by focusing on how Indian courts, over nearly two centuries, interpreted the Islamic doctrine of khiyār al-bulūgh—the right of a minor to repudiate her marriage upon attaining majority. I also revisit the legislative debates that occurred during the codification of this doctrine into the Dissolution of Muslim Marriages Act, 1939. I identify two paradoxes from this history: first, that the liberalization of religious laws has been achieved at least as reliably and stably through judicial failures—errors, amnesia, indolence and ineptitude—as through deliberate legislative and judicial interventions; and second, that the recent overlaying of religious laws with “liberal-secular” laws in India has resulted in the consolidation and intensification of patriarchal authority over adolescent sexuality—an authority that had been scattered and loosely articulated under the regime of “purely religious” laws.

History of Development and Reform of Family Law in Indonesia and Malaysia

This study aims to determine the history of the development and reform of Islamic family law in Indonesia and Malaysia. The writing method of this article uses a comparison. It compares the history of the development and reform of Islamic family law in Indonesia and Malaysia. As a result, Indonesia and Malaysia have experienced dynamic developments and reforms in the Islamic family law pre and post-independence. Both countries are Muslim-majority countries, so Islamic law, especially the Islamic family, will develop over time. As for the difference, in Indonesia, even though the Muslim majority is more than 85%, discussion of the draft law on Muslim marriage or family always becomes an issue. It is related to establishing the State Foundation of Pancasila, which accommodates all religions. After the 1998 reform, democracy was broadly applicable. It causes the desire to formalize Islamic teachings into a positive legal system to become increasingly stronger. In Indonesia, there is some difficulty in reforming family law regarding the issue between Islamists, nationalists, Muslims, and followers of other religions. It differs from Malaysia, which established Islam as the official state religion. Malaysia is a Muslim-majority country in Southeast Asia and became the most dynamic in reviewing its Muslim family law provisions.
 Keywords: Islam, family law, history, Indonesia, Malaysia

The Muslim Marriage Rejuvenation Retreat: Putting Iḥsān Back into Muslim Marriages

The Muslim Marriage Rejuvenation Retreat: Putting Iḥsān Back into Muslim Marriages

The Necessity of a Standard Prenuptial Agreement for American Muslims

For many Sunni Muslims in the U.S., one of the most important documents in their life might be a marriage contract that unintentionally contains an impermissible amount of gharar (uncertainty). There are seldom disputes when contracts go smoothly, even if gharar is present, but when there are disagreements, it is a cause of major strife. If two Muslims get married, they usually perform a nikāḥ (Islamic marriage contract/ceremony) and then sign a civil marriage contract in their state of residence. Although it would seem that the nikāḥ would imply certain terms for dissolution perhaps based on a classical school of Islamic law or contemporary ijtihād (juristic reasoning) adjusted for modern times and circumstances, the actual authority belongs to a non-Muslim judge and legal system. Does this legal system have a moral right over Muslim marriage contracts in this country, or is the use of such a court an un-Islamic infringement on the other party’s rights and therefore a violation of God’s law? This author recommends couples should explicitly discuss this issue prior to marriage and proposes a standardized prenuptial agreement to minimize unnecessary disputes.

The Muslim Marriage Crisis: How Re-Establishing Islamic Principles Can Help Muslims Find Love and Marriage

The Muslim Marriage Crisis: How Re-Establishing Islamic Principles Can Help Muslims Find Love and Marriage

South Africa and the “Othering” of the “Non-Euro-Christian” Religions

At the heart of Rabiat Akande's inspiring article, “An Imperial History of Race-Religion in International Law,” is the problematization of international law as an enabler of the othering of “non-Euro-Christian” religions.1 Akande employs “the imperial history of international law” to demonstrate that “racial and religious othering were mutually co-constitutive in the colonial encounter.”2 She rightly points out that “the legacy of that past survives in the continuing interplay of the racial and religious of the non-Euro-Christian other.”3 The focus of my essay is the post-colonial/settler colony4 and post-apartheid state that is South Africa. I argue that despite its highly acclaimed Constitution,5 which values international law and human rights, colonial and apartheid legacies still exist in South Africa, and come in the form of subjugating minority religions in favor of Christianity. In particular, I focus on the failure of the South African government in 2024 to pass legislation that would legally recognize Muslim marriages despite a constitutional obligation to do so.6 I argue that the government's non-recognition of Muslim marriages for almost three decades is a result of South Africa's colonial and apartheid legacies. South Africa's international and constitutional obligations law should be at the heart of the South African government's realization of fundamental rights when dealing with matters pertaining to religious freedom, especially as they relate to Muslim marriages.

ELEMEN KEBERTANGGUNGJAWABAN RUMAH TANGGA MENURUT PERSPEKTIF ISLAM Elements of Marriage Responsibility According to Islamic Perspective

Muslim families nowadays are facing threats that are big enough to lead to moral, social and economic collapse. The declining religious values ​​and the occurrence of conflicts in family institutions can contribute to the existence of social diseases today. The psychological crisis and spiritual deprivation of humans in the era of globalization can be overcome if humans return to religion and practice religious teachings. Society needs resilience skills and a strong identity to produce balanced people from both internal and external aspects. Therefore, the injection of religious and spiritual elements becomes a priority to improve personal well-being. This article aims to describe the elements of marriage responsibility based on verse 35 of Surah al-Ahzab which conforms to the three principles of religion, Iman, Islam and Ihsan by using the documentation method. There are four main elements: knowledge and obedience, good association, livelihood and maintaining honour as the basis of responsibility in Muslim marriages that need to be implemented by husband and wife.

Deceptive Debauchery: Secret Marriage and the Challenge of Legalism in Muslim-Minority Communities

“Secret Marriage” is a category accommodating a range of arrangements that seek to conceal a marital union, typically from an existing spouse, the family of the bride or groom, a segment of the community, or the state. These contentious unions have seen an upsurge in recent times in Muslim-majority countries, and, more recently, in minority-Muslim communities in the West. This essay examines the phenomenon in minority communities using three interrelated lenses of analysis: the legal, the moral, and the socio-institutional. Taking this multi-faceted approach, in this essay, I first examine the legal doctrines of the four Sunni schools of law on the requirement of publicity and witness testimony in marriage before situating that legal discussion about contractual validity within a comprehensive analysis of the broader moral and religious legitimacy of entering into a secret union. I argue that while jurists stipulate disparate minimums for contractual validity, nearly all secret marriage arrangements are nonetheless considered invalid (fāsid), meaning they are incorrectly conducted by failing to meet the required conditions for the contract to produce its legal effects (ṣiḥḥa) and are also prohibited (ḥarām) in themselves or for their entailments, meaning contracting such a marriage is sinful and entails punishment. As I show, even as some jurists may make arguments that may seem to imply that some versions of secret marriage meet the basic conditions to make them technically valid, these same jurists nonetheless argue that such marriages are immoral, religiously deficient, unbecoming of a Muslim, and little more than a pretext for illicit sex. Apart from the theoretical question of whether a secret marriage meets the conditions of contractual validity, parties to a secret marriage in Muslim communities today further engage in a number of sins and transgressions and cause harms to spouses, children, parents, extended family, and the community that must also be reckoned with. The essay concludes with recommendations for how religious authorities can take steps towards regulating marriage in minority-Muslim communities, highlighting the need for public education on Muslim marriage practices that is embedded in a deeper religious morality centering the Sunna to counteract the dominant legalism in the Muslim community that underlies numerous contemporary dilemmas.

AN ANALYSIS OF THE LEGAL IMPLICATIONS OF MALAKI V. PEOPLE OF THE PHILIPPINES ON POLYGYNY UNDER THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES

This article, using case analysis, examines the legal implications of polygyny under the Code of Muslim Personal Laws of the Philippines of the case of Francis D. Malaki and Jacqueline Mae Salanatin-Malaki v. People of the Philippines, G.R. No. 221075, November 15, 2021, which not only affirmed the settled doctrine - that the non-Muslim male party to a subsisting civil marriage who converts to Islam and subsequently marries another woman in accordance with the Code of Muslim Personal Laws of the Philippines commits the crime of bigamy - but also suggests a novel proposition that a Muslim husband who contracts a subsequent marriage without the consent of the wife or permission of the Shari’ah court in case of wife’s refusal to consent is also bigamous; therefore, the subsequent marriage is void from the beginning under the Family Code of the Philippines and penalised as a crime under the Revised Penal Code of the Philippines. After analysing the case, this article concludes that the subsequent marriage of a Muslim husband who has subsisting Muslim marriage should not constitute the crime of bigamy, as there is no legal framework in the Qur’an or Sunnah which requires the consent of the wife for the Muslim husband to contract a subsequent marriage. It further concludes that this novel doctrine should be treated as an obiter dictum to avoid its practical effect of criminalising what the Qur’an and Sunnah have made legal and permissible. Nonetheless, existing legal provisions against abuse of the privilege to contract subsequent marriage may be enhanced.

PERAN FIQIH MUNAKAHAT DALAM PERNIKAHAN MUSLIM: PANDUAN UNTUK KEHIDUPAN BERUMAH TANGGA YANG BAHAGIA

Humans are living creatures who have instincts and desires. Marriage is one of a person's instincts and obligations. In fact, Islam has provided guidance to those who will enter the marriage stage, complete with the procedures or rules of Allah SWT. So those who are considered experts in worship do not choose alternative methods. All living creatures have the desire to reproduce and pass on their genetic makeup, but marriage is what differentiates humans from other animals. Allah SWT encourages people to marry in order to maintain their existence and regulate reproduction in a socially acceptable way. Religion has become human nature if men and women need each other. The problem formulation in this research is what is the role of munakahat fiqh in Muslim marriages so that life in the household is happy. This research is qualitative research with a multiple literature review approach. The aim of this research is to find out the role of munakahat fiqh in Muslim marriages so that life in the household is happy.

A Brief Analysis of the Judgment in Women's Legal Centre Trust v President of the Republic of South Africa 2022 5 SA 323 (CC)

On 28 June 2022 the apex or Constitutional Court (CC) handed down a much-awaited judgment which impacts upon Muslim marriages concluded purely in terms of Islamic law in South Africa. Does the judgment mean that such Muslim marriages are now fully recognised for all purposes in the South African legal context? The simple answer is "no". The rationale for this conclusion is to be found in the two-pronged judgment. The first part of the judgment is wholly suspended and will only and automatically come into effect if remedial legislation is not enacted in 24 months. The second part of the judgment pertains to an interim order which takes effect immediately and applies retrospectively to all Muslim marriages that subsisted on 15 December 2014 (when the case was first launched by the Women's Legal Centre in the Western Cape High Court) and to Muslim marriages which, although terminated before that date, were still subject to ongoing legal proceedings at that date. While the case note briefly refers to the first part of the judgment, the main purpose of this case note is to highlight some of the practical problems that could be encountered by couples when effect is given to the orders pertaining to the interim relief granted in terms of the second part of the judgment. The problem areas are highlighted by looking at the CC judgment in the light of three fictitious scenarios. The case note provides a few critical comments on the judgment and ends with a few concluding remarks. Past experience leads us to expect that tangible progress will take place only by 2024, a date which coincides with South Africa's next presidential election. Until then the non-recognition of Muslim marriages will continue to prove burdensome to Muslim women and children.

Russia's Legal Policy Against Diaspora Marriages in Muslim Communities

This article discusses the politics of marriage law in the Russian Muslim diaspora. The Muslim community in Russia faces challenges in carrying out their marriage according to the principles of the Islamic religion amidst the legal regulations in force. This article analyzes the political development of marriage law in the Russian Muslim diaspora, including the recognition of Islamic marriage law, the settlement of legal conflicts between Islamic marriage and state law, and the role of Islamic organizations in safeguarding Muslim marriage rights. This article also presents case studies, examples of legal marriage practices in the Russian Muslim diaspora, and obstacles and solutions encountered in dealing with different legal regulations. This study uses normative research methods. Conceptual, literary and sociological approaches are used in normative or doctrinal research. Data analysis in this study used qualitative analysis methods. The results of the study state that there are political implications of the marriage law of the Russian Muslim diaspora, in addition to the challenges and opportunities in fulfilling the elements of the rights of the Muslim community in Russia. Therefore, it is expected to contribute to broadening the understanding of the politics of marriage law in the Russian Muslim diaspora and exploring issues related to Muslim marriage rights in the context of that country.

The Dynamics of Polygamy and Divorce in Muslim Countries

This article talks about the practice of Islamic family law in the Muslim world; Türkiye, Pakistan, and Indonesia which focus on polygamy and divorce. Talking about polygamy and divorce must be familiar to many people because polygamy is a very sensitive scourge when someone does that. Likewise, with divorce, this kind of thing becomes the subject of gossip in society when a family gets divorced. This paper will explain how family law is in the Muslim world, especially Turkey, Pakistan, and Indonesia with the main study of polygamy and divorce which aims to understand the understanding of society from all walks of life regarding the discussions between the two. This research is a literature study that focuses on discussing polygamy and divorce in three Muslim countries; Türkiye, Pakistan, and Indonesia. The data collection method in this study used documentation, namely collecting books, notes, and others that had relevance to the research, which were then analyzed. The results of this study are; (1) Turkey prohibits polygamy, which is contained in the book of the Ottoman Law of Family Rights, Pakistan also prohibits polygamy until written permission from the wife and the arbitral council, Indonesia legalizes polygamy referring to the Marriage Law. (2) Turkey in the event that a divorce ends with the finalization of a court decision and a waiting period of 300 days stipulated by the Turkish Civil Code, likewise Pakistan regulates divorce in two different rules, one using the Dissolution of Muslim Marriage and the other using Muslim Family Law Ordinance, divorce in Indonesia is regulated in Marriage Law Number 1 of 1974.

Muslim Women, Nikah Marriages, Domestic Abuse and Religious Arbitration in England

Abstract This article explores the underlying causes and motivations surrounding non-legally binding Islamic marriages or nikah-only marriages, and their impact on dispute resolution and the process of obtaining a religious divorce, with a special focus on women experiencing domestic abuse. It draws on empirical data from a study of Islamic divorce in the UK. Inspired by phenomenological approaches, the research involved in-depth interviews with British-Muslim women to gain a well-grounded understanding of the problems associated with Muslim marriage, domestic abuse, and divorce from their lived experiences. Furthermore, the study involved interviews with experts associated with providing informal mediation and religious arbitration ranging from imams to Sharia council judges, as well as professionals such as solicitors and counsellors. Sharia council hearings were also observed and their procedural documents were analysed. The data collected were analysed using a thematic approach, and the emergent themes from the rich data provide a detailed insight into the research problem, firmly embedded in the lived experience of British Muslims.