Documenting a Civil Marriage in Non-Islamic Courts
Documenting a civil marriage in non-Islamic courts is accepted in case it is to document and register the marriage contract in national courts. But, if it is to initiate marriage; there are different views on it
Documenting a Civil Marriage in Non-Islamic Courts
· Performing marriage in a court of law in non-Muslim countries.
Is it appropriate for the two parties of a marriage to go to a civil authority where a non-Muslim official performs the marriage contract between them fulfilling certain conditions?
If the purpose is to document and register the marriage contract with the civil authority and preserve it in the records of the country, then it is perfectly appropriate. However, if the purpose is to initiate a marriage contract that establishes the marital relationship, then contemporary scholars have two different views.
The first view considers such a contract invalid. This is the view of the Assembly of Muslim Jurists of America. The Assembly published on its website a statement issued at the conclusion of its second convention, which it held in collaboration with the Muslim Association in Denmark 4–7 Jumada I 1425 AH, 22–25 June 2004. The statement made clear that a civil marriage conducted by American officials does not fulfil some of the essentials and conditions of Islamic marriage and this makes it invalid. However, if it takes place, is publicized and is free of any aspect that prevents such a marriage from the Islamic point of view, then it acquires all the conditions that are attendant on a proper Islamic marriage, though it is considered a marriage with suspected flaws. Therefore, it should be reconfirmed by a further Islamic marriage contract in order to complete its essentials and conditions.
Dr Salim ibn Abd al-Ghani al-Rafie says in his book, Ahkam al-Ahwal al-Shakhsiyyah lil-Muslimin fi al-Gharb (Rules of Personal and Family Law for Muslims in the West): ‘Civil marriage is a flawed contract that does not make the marital relation lawful, an Islamic marriage contract is necessary for that. Once such a contract is made it can be followed by a civil marriage, not for the legalization of marital relations but to safeguard the rights of both parties, since some governments do not uphold any contract other than such civil marriage. What is important is to avoid the wrongs that such civil marriages cause when the two parties do not abide by Islamic rules. If a couple go through a civil marriage and consummate the marriage without having had an Islamic marriage contract, they commit a sin. They must immediately perform an Islamic marriage contract. Although sexual intercourse before performing the Islamic marriage is forbidden, it is not considered adultery and any children born as a result are not illegitimate. The civil marriage is not considered an invalid marriage; rather, it is a flawed one.’
In conclusion, scholars who share this view argue that civil marriages do not fulfil some of the essentials and conditions of Islamic marriage.
The second view approves civil marriage and considers it valid. Scholars who share this view base their argument on the fact that the contract aims at consolidating and documenting the marriage, and this is achieved through the civil courts or other appropriate government departments. If witnesses and the woman’s guardian are not present, the marriage contract is still valid. The presence of witnesses is required to ensure the publicity of the marriage. The presence of the guardian is a matter over which scholars differ. The Hanafi school of Islamic law does not make the guardian’s role a condition for the validity of the marriage.
The late Shaikh Faisal Mawlawi, former Deputy Chairman of the European Council for Fatwa and Research, issued a fatwa that said:
A legal marriage performed in any non-Muslim country is a lawful marriage from the Islamic point of view if it is between spouses who are not precluded from marrying each other for any Islamic reason. The first and most importantaspect of Islamic marriage, and indeed any other legal marriage contract, is commitment and acceptance by the two parties. This is fulfilled in a civil marriage contract, which normally fulfils the publicity condition as well.
The condition of the presence of two witnesses is considered by some schools of Islamic law to ensure the publicity of the marriage, and this condition is ensured by the legal civil marriage. The other condition, of the agreement of the woman’s guardian, is not unanimously required by all schools of Islamic law. However, if the guardian is present and gives his consent the legality of this marriage is further confirmed.
The only point that may make the European civil marriage unlawful is that it does not consider some aspects that may make a marriage unlawful from the Islamic point of view. For example, under Islam a man may not marry a woman if both of them were breastfed by the same woman when they were under two years of age, because they are considered a brother and sister through such breastfeeding. Under the laws of European countries, such a marriage is acceptable. However, should it take place, the marriage cannot be considered Islamically lawful. Therefore, if a civil marriage takes place between a man and a woman with no Islamic restriction on their marriage it is considered a legitimate marriage and religious courts in our Muslim countries should accept it as valid. Moreover, marital relations, including intercourse, between the couple is perfectly lawful. However, if there is an Islamic restriction that prevents such a marriage, then sexual intercourse is forbidden to them. Hence, the civil marriage may replace the Islamic marriage contract when there is no reason to prevent it from the Islamic point of view.
While a civil marriage in a European country is particularly desirable if both partners hold a European nationality, if either or both of them are nationals of a Muslim country, then they should conduct their marriage in that Muslim country. This will ensure that they are subject to the Islamic laws and regulations that apply to marriage and what it entails, including the rules concerning divorce, custody of children, inheritance, etc.
If one or both of the couple hold the nationality of a Muslim country and they perform their marriage under European law, their marriage is valid from the Islamic point of view and their marital relationship is lawful. However, they are held accountable for agreeing to place their marriage under a non-Islamic law when they could have placed it under Islamic law.
· Ali ibn Nayef al-Shahhood, Al-Khulasah fi Fiqh al-Aqaliyyat
· Islam Question and Answer: www.islamQA.info.
· Islamway.net: www.islamway.net.
· The website of the Assembly of Muslim Jurists of America (AMJA): www.amjaonline.org.
· OnIslam.net website: www.onislam.net.
· Salim ibn Abd al-Ghani al-Rafie, Ahkam al-Ahwal al-Shakhsiyyah lil Muslimin fi al-Gharb.