Preventing Disputes: Options on Entry into an Islamic Marriage Wisāṭa Family Consulting Farhana Ismail

Proposed Process Manages, interests, desires. Outlines foundation, roles, responsibilities. Negotiation and flexibility Provides choice General and Specific Wisata Family Consulting2

Preventing Disputes through Pre-Marital Coaching Exploring family-of-origin issues Preparing budgets and financial plans Developing personal, couple and family goals. Establishing a procedure for conflict resolution. Establishing spiritual and religious orientation (cs) Wisata Family Consulting3

Preventing Disputes During and at Termination Acquiring a clear understanding of Islamic rights and responsibilities (cs) Explore the Islamic marriage contract as an option to prevent disputes. Wisata Family Consulting4

Marriage as Contract Elements of a contract offer and acceptance mahr – mahr mithlī (est. in family /community) – mahr fāṭimī (equivalent of a Kruger Rand) – mahr nisāb (minimum amount) witnesses guardian consent Wisata Family Consulting5

Rights and Obligations established through Contract  Qur’an – Mutual rights of inheritance – Maintenance (4:34) – Sex, Companionship – Gender differentiated interdependent claims – Kind and fair treatment (4:19; 2:231; 2: 228) – Principle of mutual consultation (2:233)  Fairness, justice, kind treatment-harmony  Actual practice vs. Legal/Theological framework Wisata Family Consulting6

Purposes of Contractual Stipulations The Qur’anic demand: prevent injustice and unfair treatment To prevent disputes and difficulties especially for women in terms of agency. To establish the foundations of marriage. Establishes interests, desires essential for marriage to persist. Historical precedent Wisata Family Consulting7

Historical Contractual Stipulations Sakina Bint Hussein Polygyny - He could not take another wife. Association - He could never prevent her from acting according to her own will. Residence - He would let her live near her friend, Umm Manshuz. Wisata Family Consulting8

A 16 th Century Ottoman Contract Historically women in the Ottoman times and prior around the Muslim world had stipulations in their contracts. Saniyya, daughter of the Shaykh of the merchants of Tulūn mosque market stipulated … for a dower of 170 new gold sultani dinars and a black slave-woman worth 25 dinars of the named gold … the named husband determined as clothing allowance for his bride one new gold sultani dinar per month, per the legally binding amount, as his responsibility toward her, and her father accepted that for her. … Her husband does not demand of her to consummate the marriage except when the full payment of dower is completed 9Wisata Family Consulting

cont. 10 And the husband willingly took upon himself for his named wife that whenever he takes another wife and whenever he takes a slavewoman, and whenever he moves her from the protection of her parents then all women who entered his life after her, and joined her after consummation, will be divorced by a single divorce, which she will own herself by while the honorable wife remains in his responsibility, and the slave-woman for sexual pleasure would be freed for the sake of God. Wisata Family Consulting

Historical Contractual Stipulations Husband - Good treatment, household chores Wife - specific and unique stipulations Residence Maintenance Deferred dower Tafwīḍ Polygyny Abuse Support of children from another marriage etc. Travel without financial support Wisata Family Consulting11

Possible Stipulations Today Polygyny – knowledge, consent, consequences Deferred dower Delegated ṭalāq – conditional, open Residence – proximity, vicinity Maintenance – living standards, quality of life Children – care and upbringing Parents – care, residence, support Work – career, education Finances – income, expenses, bank accounts Wisata Family Consulting12

Differences in the Madhāhib 1) Stipulations that void the contract eg: 2) Stipulations that are void and contract is valid 3) Stipulations that are valid and enforceable through penalties Examples of prevention within the madhāhib: Ḥanafī school allows deferred dower, independent accommodation, tafwīḍ. Ḥanbalī school -restrict polygyny, residence. Wisata Family Consulting13

Preventing Disputes at Termination of a Marriage Education on the types of ṭalāq – aḥsan, ḥasan, bid‘a Education on alternative types of marital dissolution – ṭalāq, khul‘a, faskh, tafwīḍ Education on the ‘idda process – reconciliation options – method and purpose of ‘idda Wisata Family Consulting14

Summary 1) Prevention through behavioural and psychological process. 2) Prevention through a negotiated contract Pre-emptive measures Flexibility created at entry Addresses concerns Manages expectations Share ideas Parental involvement Wisata Family Consulting15

Challenges Compatibility with South African law Differences amongst scholars (cs) Buy-in (cs) Wisata Family Consulting16