In Islam, marriage is considered both a social agreement and a legal contract. In modern times, the marriage contract is signed in the presence of an Islamic judge, imam, or trusted community elder who is familiar with Islamic law. The process of signing the contract is usually a private affair, involving only the immediate families of the bride and groom.
Islam has given freedom of choice to those who wish to get married. The mutual choice of the would-be-spouses is given the highest consideration:
”Do not prevent them from marrying their husbands when they agree between themselves in a lawful manner.” [Quran 2:232]
The marriage contract is a necessary component in the marital process. Marriage itself is actually considered to be a contract agreed upon by the two parties. It is a binding, permanent agreement that can only be broken through the process of divorce.
Consent – Both the groom and the bride must consent to the marriage, verbally and in writing. This is done through a formal proposal of marriage and acceptance of the proposal. A first-time bride is usually represented in the contract negotiations by her Wali, a male guardian who looks out for her best interests. It is essential to mention here that the consent of the Wali is a condition without which the contract is void. Even so, the bride must also express her willingness to enter into marriage. Consent cannot be obtained from those who are legally unable to give it, i.e. people who are incapacitated, minor children, and those who have physical or mental impairments which limit their capacity to understand and consent to a legal contract.
Mahr – This word is often translated as ”dowry” but is better expressed as ”bridal gift.” The bride has a right to receive a gift from the groom which remains her own property as security in the marriage. The gift is payable directly to the bride and remains her sole property, even in case of later divorce. The mahr can be cash, jewelry, property, or any other valuable asset. Either full payment or an agreed-upon payment schedule is required at the time of contract signature. The mahr may also be deferred until termination of the marriage through death or divorce; in such an instance the unpaid mahr becomes a debt against the husband’s estate.
Witnesses – Two adult witnesses are required to verify the marriage contract. Proper witnessing is critical to the validation of the marriage, also acting as a protection against suspicions of adulterous relationships.
Prenuptial Contract Conditions – Either the bride or the groom may submit contract conditions which, if agreed upon, become legally-binding conditions of marriage. Often such conditions include agreements about the country of the couple’s residence, the wife’s ability to continue her education or career life, or visitation with in-laws. Any condition that is allowable in Islamic law is allowed to be entered, as long as both parties agree.