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Ibn Abdillah As-sudaisiy Al-Iloori

I have been involved in mediating marital disputes relating to terms and conditions in a marriage severally in recent time. I wrote about it recently and it will be incorporated in the book (Polygyny with Mercy) that I am about to publish soon, in sha Allāh in the aspect of general advice on how to prepare for marriage. 

Terms and conditions to all forms of contract, including marriage must be well stipulated before they are sealed or finalised. The parties must also be ready to stand by them. The terms and conditions need not be written, but parties to the contract must be ready to abide by them, otherwise, they will be sinning against Allāh. They will not only be sinning against Allāh, they will be putting the contract into jeopardy, and if care is not taken, breach of the contract in this regard can lead to the end of that contract.

The terms and conditions in a marriage arise in different forms. They are not limited to matters relating to accommodation, they could extend to some other issues, especially those relating to health or dignity or class. For instance, a man or woman might be going through some health challenges that may prevent him or her from performing some marital responsibilities. If the couple agree on certain terms regarding it, they must abide by their those terms. The terms and conditions in a marriage must be well spelt out. Many men and women don't speak out on matters of this nature either out of blameworthy shyness or whatever and this can create problems in the marriage and can even lead to divorce. 

When a man or woman agree to do something in a marriage, he or she should not joke with it. Some men and women may claim they only accept some conditions jokingly. Marriage or anything relating to it is not something to joke with. It is a serious business. Couples must fulfill their promises and obligations except the other party wishes to waive his or her right. For instance, a sister may agree with a man that she will relocate to his base after the marriage, if she fails to relocate with him at the stipulated time without any convincing reason, that amounts to a breach of contract and the man can divorce her as a result of that. 

Consequently, if a brother can only afford to put a woman at family house until he builds his own house, he should state it clearly before the marriage is sealed. If the woman accepts it, she has no right to complain afterwards. But if the woman states from the beginning of the transaction that she will not be comfortable staying in the family house or self-contained apartment till her husband builds his own house, she should not enter the contract. The best thing is for the man to make the accommodation available even before the contract is sealed. Anything can happen after the marriage. The issue of accommodation is very important and it has to be a place a woman is comfortable with based on their initial agreement. Therefore, if a brother agrees to provide a place other than family house after marriage, then he is bound by his stipulation. Allāh says:

{ یَـٰۤأَیُّهَا ٱلَّذِینَ ءَامَنُوۤا۟ أَوۡفُوا۟ بِٱلۡعُقُودِۚ}

O you who have believed, fulfill your covenants... [Surah Al-Mâ'idah: 1]

The Prophet صلى الله عليه وسلم على also said : 

المسلمون على شروطهم إلا شرطا حرم حلالا أو أحل حراما

Muslims are bound by their stipulations, except a condition that forbids what is permissible or permits what is forbidden.” [Narrated by al-Tirmidhi , 1352]

Sheikh Ibn ‘Uthaymeen رحمه الله said: 

The basic principle with regard to conditions in the marriage contract is that they are valid, unless there is proof to show that they are not valid  [Sharh Mumti', 5/241]

But if the condition is against any aspect of the Qur'ān and Sunnah, then it will be null void. The Prophet صلى الله عليه وسلم said: 

كل شرط ليس في كتاب الله فهو باطل، ولو كان مائة شرط

Whoever stipulates a condition that is not in the Book of Allah it is not valid, even if he stipulates a hundred times.[Narrated by al-Bukhari (2155) and Muslim (1504)]

Even if a man promises a woman that he will not marry another wife upon her, he is bound by his stipulation. The woman has the right to opt out of the marriage if he marries another wife. In a marriage, a man and a woman must stand by their stipulations, otherwise, some of the purposes of marriage under the sharī'ah (comfort, love, mercy, intimacy etc.) can begin to suffer. When this happens and proper steps are not taken to bring the situation under control, the marriage can end in a matter of days, months or years.

If any of the terms of a marriage contract is breached, the other party can repudiate the contract on that basis. But they need to be patient with each other and find a way of involving elders and scholars with a bid to solve it. But if they are unable to resolve it and it is creating hardship on the aggrieved party, then he or she has the right to opt out on the basis of the fact that the other party has failed to fulfill his or her fundamental obligation (s) towards the marriage.

And Allāh knows best.


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