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Status of Common Law Marriage In Muslim Countries and Islamic Jurisprudence

What is common law marriage?

As per “Britannica Concise Encyclopedia”,

“Marriage that is without a civil or religious ceremony and is based on the parties' agreement to consider themselves married and usually also on their cohabitation for a period of time.”

American Heritage Dictionary defines a common law marriage as:

“A marriage existing by mutual agreement between a man and a woman, or by the fact of their cohabitation, without a civil or religious ceremony.”

In most of the circumstances, a common law marriage is legally recognized but it is conducted without any registration and license. It is considered an alternative to the conventional marriage. However, neither any ceremony is performed nor details of marriage contract are finalized. In other words, such marriages can be termed as secret marriages.In Islamic terminology, common law marriage is known as Nikah Urfi.

Urfi Marriages in Muslim Countries

In most of the Muslim countries common law marriage (urfi marriage) is not recognized as legal. However, according to Wikipedia and articles on the internet, such marriages are prevalent in Egypt.

As the process goes, the common law marriage is conducted by a cleric who is not registered for such activities. The couple say before him that, “We are married and pledge commitment to Allah”. The marriage is witnesses by two persons. The cleric issues a certificate of urfi marriage. There are no details mentioned of Mehr, maintenance and other contractual obligations in such marriages.

Before 2000, the urfi marriages were recognized by the Egyptian law. The wives could not go to court for divorce, for their marital rights and rights for the off springs. However, on January 2000, a new law was passed which allowed divorces in urfi marriages, if the wife can prove existence of such marriages. However, she is still not entitled for her maintenance and rights of the off springs.

Status of Urfi Marriage in Islam

According to Salih Al Munajjid – the supervisior of the website Islamqa.com, there are two types of Nikah Urfi or customary marriages:

"1. “Where the woman is married in secret, without the agreement of her wali (guardian). If that is the case then it is a haraam marriage contract which is not valid, because the agreement of the wali is one of the conditions of the marriage contract being valid.

2. Marriage with the agreement of the woman and her wali, but without announcing the marriage publicly, or registering it in the Shariah or civil courts, but there are witnesses. If this is the case, then it is a valid marriage from the point of view of having met the necessary conditions, but it goes against the Islamic command to publicize the marriage. Not having the marriage officially documented may lead to the wife losing out on her rights with regard to the dowry and inheritance, and if the marriage leads to children, how will this child be recorded in official documents? How will the woman defend her honour before people?"

You know no marriage is valid in Sunni fiqah without witnesses. The Prophet Muhammad (Peace be upon him) is quoted in a Hadith as, “Announce your marriage”. Following this Hadith, some of the jurists consider publicizing the marriage is one of the conditions of it being valid.

Other jurists argue that witnessing of marriage by two independent witnesses is sufficient to meet the requirements of this Hadith. As discussed above, some jurists think that marriage without consent of the wali is not recognized by Islam.

Generally, a valid marriage in Islamic jurisprudence requires:

1- The parties are capable to marry as per Quran

2- Male is Muslim

3- Both are of marriage age (puberty)

4- There is clear cut proposal and acceptance

5- There are at least two Muslim witnesses of marriage

6- There is contract for dowry (mehr)

7- The husband is bound for maintenance of wife and children

8- Wife and children are entitled for inheritance in case of death of the husband

The urfi marriage does not meet all these conditions. However, it is still popular amongs university students, economically weak singles and tourists in Egypt. This forum is open for visitors to discuss related issues in the common law marriage.

Common Law Marriage and Muslim Marriage Contract

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