For a marriage to be valid in Islam, the presence of wife’s guardian and witnesses is essential. Official registration is not vital although its absence is discouraged as it ensures the rights for both parties.  

Traditional Marriage Not Registered with Western Authorities

Similar Questions

• Marriage not registered with Western courts;

• Traditional marriage in the West;

•  Marriage without official registration.

The Issue

Two cases apply here: (i) A man and a woman agree to get married without the presence of the woman’s guardian or witnesses; and (ii) going through a marriage contract in a Western country without registering it officially.

Ruling

The first case is not a marriage. It is adultery.
The second case is a marriage that is valid from the Islamic point of view, but involves several negative aspects. Rights may be squandered as a result of non-registration, and several social problems may affect both parties. Here are some of the decisions and fatwas about traditional marriage.

The European Council for Fatwa and Research considered the issue of traditional marriage in its twentieth session held in Turkey in June 2010 and took the following decision:

1. ‘Traditional marriage’ means a marriage contract that fulfils all the essentials and conditions of Islamic marriage but is not registered with the official authorities.
2. The Council recommends that neither traditional marriage nor civil marriage is sufficient on its own and both should be performed. A traditional marriage contract on its own may lead to the loss of the rights of one or both of the parties, because it is not officially registered. The civil marriage may involve a lack of some essential requirements or conditions of the traditional marriage. Moreover, it may have consequences that are contrary to Islamic law.
3. A combination of the traditional and civil contracts, without reconciling their regulations and effects, may also lead to problems. If a dispute arises between the couple, people may want to refer to either one law or the other.
Therefore, the Council recommends the formation of a committee of scholars and lawyers to draft a document to be attached to the civil marriage.

The Assembly of Muslim Jurists of America organized a seminar on ‘Contemporary Problems of the Muslim Family in American Society’, 26–28 Safar 1425 AH, 16–8 April 2004, which was attended by more than 30 imams from different areas around the western coast of the United States.

‘Traditional marriage’ is a marriage that has not been registered in an official document, whether the marriage is in written form or not. It is of two types:

The first type is a marriage that fulfils all essentials and conditions, including the presence of the woman’s guardian and witnesses. This is a correct and valid marriage that confirms the marital relationship and all that results from it such as the rights of looking after one’s wife, inheritance, the legitimacy of the children and their affiliation to their parents. Official registration is neither essential for the legitimacy of the marriage nor a condition of its validity. It has been introduced to ensure the rights of the parties in the case of dispute.

Although this marriage is valid it is strongly discouraged, because it leads to ignoring some of the woman’s rights in the case of any dispute and the courts will not consider a lawsuit on its basis. Claims of maintenance or inheritance and applications for dissolution due to harm, etc. are not considered because the marriage has not been officially registered, as required by many contemporary family laws.

The second type is a marriage that does not meet the essential requirements, such as a ceremony performed in secret without the presence of the woman’s guardian or witnesses. Although this type has recently become common in some countries, the arrangement is invalid and does not create a marital relationship that makes the parties lawful to each other. Scholars must warn against it and declare its invalidity.

IslamWeb Fatwa centre [1]

In most cases, traditional marriage refers to a marriage that is not registered with the official authorities. If such a marriage fulfils the essentials and conditions, and is free of any reason that makes it unlawful for the two parties to marry, then it is a valid marriage, even though it is not officiallly registered. This may result in many unnecessary problems. The purpose of registering the marriage is to ensure the rights of each of the two parties and document these, as well as confirming the correct affiliation of children to their parents, etc. Moreover, it ensures that injustice or assault, if any, is removed. On the other hand, either the husband or the wife may be able to shred or burn any document proving the traditional marriage and then deny being married to the other. Such excesses are not infrequent. Whether the marriage is traditional or official it must fulfil the essentials and the conditions of the marriage contract, otherwise it will not be valid. The most important of the essentials are the commitment and acceptance.

Evidence

The most important conditions are the presence of the guardian, two witnesses and the dowry.

Ibn Hibban adds that this is the only authentic statement requiring two witnesses. Ibn Hazm grades this hadith as authentic. Another hadith quotes

The dowry is a definite requirement,

Therefore, we urge our Muslim brothers to stay away from traditional marriage and to ensure that their marriage is true, official and properly registered and documented. We warn against a forbidden method that some people resort to: a man and a woman meet, he asks her to marry him and she says that she accepts. They write a paper stating that they have done this, consider themselves married and live like husband and wife. This method is not a marriage of any sort and definitely not a traditional marriage. It is an adulterous relationship, as it takes place in the absence of the woman’s guardian and witnesses. Whoever has done this must repent and seek God’s forgiveness. If he wants to be married, he should marry his wife according to the proper conditions laid down by Islam.

Sources

•  Decisions by the European Council for Fatwa and Research.

• Home page for IslamWeb.net website: www.islamweb.net.