Pre-Requisites of a Marriage Contract

Read the previous part: Rules of Engagement

There are three pillars or pre-requisites for the Marriage contract in Islam

1. Both parties must be free of any obstacles that might prevent the marriage from being valid, such as their being mahram to one another (i.e. close relatives who are permanently forbidden to marry), whether this relationship is through blood-ties or through breastfeeding etc, or where the man is a kaafir (non-Muslim) and the woman is a Muslim, and so on.
2. There should be an offer or proposal from the wali or the person who is acting in his place, who should say to the groom “I marry so and so [naming the bride] to you.” Or similar words.
3. There should be an expression of acceptance on the part of the groom or whoever is acting in his place, who would say, “I accept,” or similar words.

The Conditions of a proper nikah (marriage contract) are as follows:

• Both the bride and groom should be clearly identifies, whether by stating their names or describing them, etc.
• Both the bride and groom should be pleased with one another, because the Messenger of Allah (SAW) said, “No previously married woman [widow or divorcee] may be married until she has been asked about her wishes [i.e. she should state her wishes clearly], and no virgin should be married until her permission has been asked [i.e. until she has agreed either in words or by remaining silent].” They asked, “O Messenger of Allah, how is her permission given (because she will feel very shy)?” He replied, “By her silence” (Al Bukhari)
• The one who agrees to the contract on the woman’s behalf should be her wali, as Allah (SWT) addressed the walis with regard to marriage:

          “And marry those among you who are single…” (24:32)

          And because the Messenger of Allah (SWT) said: “Any woman who  marries without the permission of her wali, her marriage is invalid, her marriage is invalid, her marriage is invalid.”         (Tirmidhi)

• The marriage contract must  be witnessed, as the Messenger of Allah (SAW) said, “There is no marriage contract expect with a wali and two witnesses.” (Tabaraani)
• It is also important that the marriage be announces, as Allah’s Messenger (SAW) said, “Announce marriages.” (Ahmad)

The conditions of the Wali are as follows:

• He should be of sound mind.
• He should be an adult.
• He should be free (not a slave)
• He should be of the same religion as the bride. A kaafir cannot be the wali of a Muslim, male or female, and a Muslim cannot be a wali of a kaafir, male or female, but a kaafir can be the wali of a kaafir woman for marriage purposes, even if they are of different religions. An apostate (one who has left Islam) cannot be a wali for anybody.
• He should be of good character, as opposed to being corrupt. This is a condition laid down by some scholars, although some of them regard the outward appearance of good character as being sufficient, and some say that it is enough to the interests of the woman for whom he is acting as wali in the matter of her marriage.
• He should be a male as the Messenger of Allah (SAW) said, “No woman may conduct the marriage contract of another woman and no woman can conduct the marriage contract on behalf of her own self, because the fornicatress, adulteress is the one who arranges things on her own behalf.” (Ibn Majah)
• He should be wise and mature, which means being able to understand matters of compatibility and the interest of marriage.

The fuqahaa` put possible walis in a certain order, and a wali who is more closely related should not be ignored unless there is no such person or the relatives do not meet the specified conditions. A woman`s wali is:

• her father
• then whoever her father may have appointed before his death
• then her paternal grandfather or great grandfather
• then her son
• then her brother through both parents (full brother)
• then her paternal half brother (i.e they have the same father)
• then the sons of her full brother
• then the sons of her paternal half-brother
• then the sons of her father`s full brother
• then the sons of her father`s paternal half brother
• then whoever is more closely related, and so on as is the case with inheritance.

The Muslim leader (or his deputy or other representative, such as a qaadi or judge) is the wali for any woman who does not have a wali of her own.

Phase 3- Deciphering the Language Barrier between Genders shall be published soon, insha Allah