by (Ustaaz, Sheikh) Ahmed Fazel EbrahimIslamic Marriages refers to all marriages that have been contracted between a Muslim male and Muslim female immaterial of their races and ages, and have been witnessed by at least two males or a male and two females. Generally, the marriage is solemnized by a Muslim male and it is immaterial whether the person who solemnizes the marriage is considered a qualified scholar of Islamic Law, has any form of qualification from any Islamic Institute or whether he sufficiently knew and understood the Islamic format of executing a marriage.
Requirements for a valid Islamic marital contract
The requirements of having at least two males or a male and two females as witnesses who simultaneously witness the marriage solemnization is essential to the validity of the Islamic marital contract, and in the case where both the "husband to be" and "wife to be" are present before the person solemnizing the marriage, the person solemnizing the marriage cannot act as the male witness as well due to a Athar (narration) of Ibn Abbaas.
Generally, since the Islamic marriage is preferably solemnized in the Masjid, while the female spouse preferably remains at another place or residence, a person is nominated to act as her representative while two persons act as witnesses to that representation. Thus, in the case of a marriage in the Masjid or any other venue where the "female spouse to be" is absent, the representative of the bride who would transmit her consent to the marriage as well as two witnesses to the representation, and two other witnesses to the solemnization of the marriage are a minimum requirement. The requirement of two witnesses to the representation is a Hanafi ruling. The same Athar (narration) of Ibn Abbaas neither requires two witnesses to the representation in the case of the person who, as a guardian, gets his female, for who he acts as guardian, married.
Due to juridical differences among the Fuqaha (Islamic jurists), we could say that where jurists of any Mazhab specify the existence of a Wali (guardian) to be a condition for the validity of the contract, then such a condition will be enforceable for the validity of the marital contract within that mazhab (Islamic legal school).
Although, in terms of Hanafi fiqh, the need for specifying a dowry is essential at the instance of the marriage, failure to consider it would not render the marriage as invalid and the dowry would then be subject to mutual agreement by the parties or other rulings related to a "dowry equivalent of the female status" as prescribed in Hanafi law.
Bigamy and polygamy in Islam
Also, the Islamic marriage, whether it be the first marriage of the male or whether it is after another existing marriage in conformity to Islamic Law, would be recognized within the plural marriage limitation of four female spouses as allowed by Islam.
Bigamy and polygamy is allowed in Islam and the marital contract of such marriages would be executed and valid immaterial of any civil provisions that prevent the same and immaterial whether such forms of legislature are enacted within Muslim or Arab States. The law of Allah reigns supreme in Islam and is held by a Muslim to be the final authority.
The absence of the Islamic legal obligation to have a written, printed or typed record of the marital contract
The Islamic marriage is considered valid immaterial whether it is recorded in any written format, computer word processing, dbase or otherwise in any form of register or whether it is purely solemnized verbally without any written documentation. However, the need for a written record with essential personal identification is a legal expedient necessity and an obligation that needs compliance for civil records and to protect the marital rights and obligations of both spouses.
The need to specify a mazhab within the marital contract
Furthermore, an Islamic marriage is concluded without specification of mazhab (Islamic legal school). This was the primary form of a marriage between the Sahabah. However, due to juridical differences among the jurists on matters of divorce, maintenance and other issues, the absence of specifying a mazhab, leads to juridical uncertainty in regard to the school of Islamic jurisprudence or format of Islamic legal application in the case of Muslims who adhere to any one of the four main legal schools of interpretation since either both the spouses follow different mazhabs or they both opt to, for convenience and escape of legal consequences, arbitrarily adopt a legal school (mazhab) that favours their position and intent. Those following the basic Qur'an and hadith approach have no conflict in terms of mazhab interpretations but also face conflict in regard to interpretation that can expand in diversity just as that which exists in the mazaahib. Therefore, the specification of a mazhab is a legal expediency but its absence will not deny the validity of an Islamic marriage.
However, some may argue, retrospectively, that if a marriage was concluded e.g. without the consent of the female's guardian, then such a marriage must necessarily be regulated by Hanafi legal opinions since the Hanafi school allows such a marriage and the Shafi school does not allow such a marriage. This argument would have been true, if every single ruling of the Hanafi school came from the same set of juridical principles and precepts. However, since the other rulings of the Hanafi school emanate is a result of inferences that are juridically diverse in nature, principle and basis from the ruling of the Hanafi school that allows a marriage without a guardian, therefore it is technically possible for a Islamic jurist to validly allow a man to conclude a marriage on the basis of the opinion of the Hanafi school, yet allow him to select the opinions of other jurists in other matters of the marriage if the such legal opinions were also, in his considered and reviewed opinion, the preferred teachings in the wide Shari'ah. However, in such a situation, he also needs to evaluate whether the opinion of the Hanafi scholars with regard to the validity of the marital contract without a guardian for his spouse is also the stronger of the juridical views in the ahadith and works of Islamic jurisprudence. At a very simple level, if an argument is presented to the effect that denies the validity of the marriage in the absence of a mazhab, then this will imply that they deny the marriages of the Sahabah to have validity since their marriages were naturally void of mazhab. In fact, their is neither evidence that marriages, which followed the period of the great jurists of the four mazaahib, were concluded by also specifying a mazhab.
Many Egyptians who I have met in South Africa state that Islamic marriages concluded in Egypt are solemnized with the specification of the Hanafi mazhab. This was confirmed with an Aalim from Egypt who mentioned that the Hanafi rulings were the easiest for applicational reasons.
Converts to Islam
Any person who acknowledges the unity of Allah and the finality of the prophethood of Allah's messenger, Muhammed SAW and admits, without any form of denial or negation, to all the Quranic teachings and the teachings of the prophet, Muhammed would be considered a Muslim. Thus, a person converting to Islam would immediately by granted the status of having Islam without having to wait for any term or period.
Islamic Marriages in South Africa
Firstly, the civil regulation in regard to accepting Islamic marriages between a foreigner and a South African for the purposes of nationality and citizenship is external to the discussion at hand.
Islamic Marriages in South Africa refers to all marriages that have been contracted between a Muslim male and Muslim female who are residents in South Africa whether legally or illegally, immaterial of their races and ages, and have been validly solemnized by any Muslim, immaterial whether such a person who solemnizes the marriage is considered a qualified scholar of Islamic Law, has any form of qualification from any Islamic Institute or whether he sufficiently knew and understood the Islamic format of executing a marriage.
The need to legally classify these marriages still remains to be concluded and criteria need to be defined for the re-registration of these marriages for acceptance as South African Secular Islamic marriages.
Also, the Islamic marriage, whether it be the first marriage of the male or whether it is after another existing marriage in conformity to Islamic Law, would be recognized, in terms of Islam, within the plural marriage limitation of four female spouses as allowed by Islam. However, there is no recognition granted to second Muslim marriages within the present South African legal system although such a recognition is granted in the case of African customary marriages.
Marriages by proxy
Since, the Hanafi school allows marriage by proxy, an Islamic marriage, in Hanafi terms, should also include, for the purposes of S.A. chapter of Islamic Law, any marriage concluded by a resident South African spouse with a foreign female or male through the telephone or any other acceptable form of proxy. This form of marriage is inferred to be valid in the Hanafi school.
Due to Islamic proscriptions homosexuality, gay and lesbian marriages are invalid in Islamic Law. Likewise, due to the Islamic impermissibility on sex changes, a rare marriage of a Muslim to another spouse of the opposite sex who does not hold a natural sex (i.e. male or female) status will not be valid.
Marriages to Jewish and Christian women
The Qur'an allows Muslim males to marry females from "The people of the Book." This refers to Jewish and Christian females. However, Indian Hanafi Ulema have differences of opinion regarding the classification of Christians in our era as "People of the Book" due to the diverse beliefs held by the various factions among the Christians e.g. Catholics, Protestants, 7 Day Adventists, Anglican, Dutch Reformed Church, Re-born Christians, etc. However, the major argument rotates around the difference in beliefs held by contemporary Christians in relation to Christian society in the prophetic era of Muhammed (SAW). This issue needs to be answered with a detailed clarification.
Furthermore, Jewish and Christian women who marry Muslims are automatically excluded from the inheritance of their spouses except if such spouses confer, by way of gift, any property or financial rights or monetary values during the normal life term of such a male spouse. [The Islamic rules of inheritance further elaborate forms of illness prior to death which terminate the right to transfer property by a person]
The present status of Civil Marriages concluded by Muslims
Civil marriages concluded between Muslims with Muslim witnesses to the solemnization and with the requirements and format of an Islamic marriage also constitute valid Islamic marriages due to the inherent nature of the Islamic marriage contract. However, for the purposes of implementing Muslim Personal Law, such marriages would be considered as civil marriages. An act would be required to re-classify such a marriage to a marriage valid for the purposes of M.P.L. Where civil marriages were concluded without the Islamic requirements relating to the number and nature of witnesses, the civil marriage, though valid in terms of the secular law, would not constitute as a valid form of a marriage that would be acceptable in Islamic Law.
Civil marriages concluded for the sake of residence or citizenship between foreign Muslim males and a Muslim female without witnesses or with false witnesses will not provide the marriage validity in terms of the schools of Islamic law that require witnesses to the marriage to simultaneously be present at the instance of the solemnization. Where such Muslim males have married Non-Muslim females, who are not from the "people of the Book," their marriages would be unacceptable Islamically, immaterial whether there were sufficient witnesses as required by Islamic law or whether there were no witnesses.
There have also been incidents of South African female Muslims who have illegally participated in allowing themselves to be registered as the wives of foreign Muslim men. The false witnesses sign at a location after the recording of the spouse names so that the marriage is not valid Islamically but allows acceptance of the registration. This can have major problems in the case that the marriage is done in community of property since the financial obligations of foreign persons with criminal records and their local created debts could become the liability of the South African spouse. They could likewise claim inheritance from the family in terms of Islamic law in the event of death or planned murder by disclosing the marriage and claiming it to be a secret affair that existed between the parties. Also, if the female intends to subsequently marry, she cannot do so legally since she is recorded as being the wife of another in the State archives. This then demands a divorce proceeding and its legal and financial consequences. Many foreign Muslim men from India, Pakistan, Egypt and Morocco have failed to disclose to their intended spouses in South Africa that they already are within existing marriages in their home countries. In the event that M.P.L. gains acceptance in South Africa, such females would neither acquire an Islamic marriage Certificate in compliance to M.P.L. since they are already registered as married. Thus, the legal divorce proceedings would be binding upon such persons in order to gain valid acceptance as spouses in another marriage.
Muslims are cautioned against this due to legal consequences as well as Islamic reasons. The female engaging in such a civil marriage will not be enabled to legally record a subsequent true marriage unless the previous marriage is terminated through a legal court divorce proceeding. Also, often, people fail to recognize that getting married without an ante-nuptial agreement demands that that marriage be legally concluded as a marriage in terms of the community of property marital contract of South African law. Thus, an unjust party from the spouses could abuse the financial position of the richer spouse or jeopardize their financial interests.
1. Conclusive answers need to be given on whether the following marriage forms would fall within the purview of South African Islamic marriages
a. a proxy Islamic marriage concluded by a South African Muslim national who is on foreign soil
b. a Islamic marriage concluded by a South African National with a foreigner or another South African in any foreign country
2. The Qur'an allows Muslim males to marry females from "The people of the Book." This refers to Jewish and Christian females. However, Indian Hanafi Ulema have differences of opinion regarding the classification of Christians in our era as "People of the Book" due to the various beliefs held by factions among the Christians e.g. Catholics, Protestants, 7 Day Adventists, Anglican, Dutch Reformed Church, Re-born Christians, etc. The dominant issue relates to the differences in belief of present Christians in comparison to Christian society of the prophetic period. This issue needs to be answered. The Hanafi scholars do not reject the clear prescription of the Qur'an, rather they question the interpretation of the category "people of the Book" in relation to the diversity of Christian beliefs that emerged after the period of revelation. However, the Qur'anic verse which defines "those who say Esa (Jesus) is the son of Allah have indeed disbelieved" also needs clarification and interpretation.