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Reflections on Marriage and Divorce in America

By Hassan Hathout

A scenario that was common in many Islamic centers and still happening in some, is the man and woman who head to the administration office requesting an Islamic marriage.  Just great! Congratulations.  Two witnesses are produced and the marriage is contracted, and they happily leave with a broad smile and a decorated sheet of paper that certifies their marriage at the Islamic center.

A variable time later, however, the lady comes back in tears and distress.  She has been kicked out of the house, without means to get her rights, since the certificate given by the center is not an official document recognized by the law of the land.

This was the lesson that prompted many Islamic centers to insist that the couple bring the formal marriage license from the City.  There is a special space on the license for a religion based marriage, where the person officiating the marriage specifies it to be upon the Islamic faith after verbally securing the Ijab and Qabul, and the couple, the witnesses and the representation of the Center putting their signatures.

The completed license is then mailed to the City to be entered in the official register and mailed back.  But then comes the second hitch.  Some bridegrooms, entrusted with mailing the license to the City, never do that.  So our second lesson was to take it upon ourselves to mail the license to the City.  Having been recorded in the official registry, will ensure that an illintentioned man can never deny the marriage.

As expected, we encountered some argumentative (or unknowledgeable) men who accuse us of violating Islam, whose requirement is merely two witnesses.  This was true at the time when people were honest.  In later times one could actually buy two witnesses to testify his marriage to almost any woman.  In every Islamic country now there is a special court servant (Mozoun, Qazi, etc.) whose duty is to officiate the nikeh and fill documents that he takes for entry in an official register.  The Shari’a has its fixed components (Ibadat and Hadood) that can never be tampered with, otherwise it enfolds the mechanism of its own flexibility to cater to fresh issues through Ijtihad.

In Islam there is room in the marriage contract for any pre-agreed special stipulations.  The dower (especially the deferred portion of it and how disbursed), the Islamic religious upbringing of children as Muslims if the mother is not, or any lawful thing mutually agreeable, (the daughter of a friend of mine demanded that kitchen cleaning be done jointly…still it is after 12 years).  These can be legally formulated into prenuptial agreements; otherwise the law of the land reins.

Interfaith marriage is another relevant issue to Muslim life in America, distressing many parents.  The boy challenges the parents to arbitrate to the Quran.  For a Muslim man to marry a Christian or a Jewess is not Haram (unlawful).. but it is not the best of the Halal (lawful).  It is the religious duty of a Muslim man to plan for the future of his children and whether they will be Muslims or lost to Islam; their chances are scanty if their mother is not Muslim, and the father will carry the heavy burden of responsibility before God.  Another factor to take into consideration is that a Muslim girl can only marry a Muslim.   Being a minority, any Muslim boy marrying  to a non-Muslim, is lost to a Muslim girl, aggravating the crisis of marriage among Muslim girls.  In the reign of Calif Omar, when he heard that one of his commanders in newly conquered lands of the Roman Empire got married to a beautiful Chrisitian, he sent him written orders to immediately divorce her.  Cunningly, the man wrote to Omar: “Is what I did Haram?”  Omar answered: “No.  What you did is not haram.  But if you and your likes succumb to the beauty of Roman women and marry them, who will marry the Arab women?”  This established the chapter of Fiqh called: “The narrowing of the lawful”, for the overall interest of the Umma.  Muslim girls often protest not having the same right of marrying a non-Muslim.  In Islam (as it is in Judaism and Christianity) the husband is the head of the family (and the wife it’s heart).  When the leadership does not recognize the religion (Islam) of the other party, she might be wronged, whereas a Muslim husband is obligated by Islam to recognize and respect Judaism and Christianity and enable his wife to abide by them in her life and her worship.  There will be a conflict of loyalties such as might arise if a Christian husband wants to enjoy his sexual rights during the day of Ramadan while the Muslim wife is fasting; to quote just an example.  In non-Muslim countries, it remains the duty of Muslim parents and Islamic centers to maximize the opportunities of their boys and girls to eventually get married to one another.

We have reason to believe that the question of Polygamy warrants much needed clarification.   We cannot say that polygamy is Haram (prohibited) in Islam.  Nor was it prohibited in Judaism or Christianity, as evidenced by the Biblical prophets who were polygamous but never accused of violating the Divine law.  Attempts to curb polygamy in Europe started in the sixth century (Emperor Justinean).  Islam found polygamy and regulated it, the Quran setting criteria and conditions about which many Muslims were lax.  Muslims in America face a special situation.  Polygamy is illegal in America, and Islam would not permit a Muslim to commit an offence that lays him in jail.  We American Muslims are subject to American law and we have the right of objection only if the law forces us to do something against Islam.  Since monogamy is not against Islam, we don’t have a case for dissent.  Moreover, when an American Muslim takes a second wife (as is rumored to be the practice of some Islamic centers), the second wife is denied her “legal “ proof of marriage, and will essentially be kept as a hidden or secret wife, which contradicts the Quranic criterion of equity between wives.

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