Islamic Marriage Contracts, Polygamy and Divorce

I cry, and do you know what makes me cry?
I cry out of fear that you may go away from me
And cut off our relation and leave me alone...
-Cameldriver's Song (Schimmel, p.23).

This song reflects the feelings of most Muslim women who fear divorce when their husbands take other wives. The effects of Islamic laws concerning marriage contracts, polygamy, and divorce on women will be discussed in this paper.

One marriage contract that disrespects women is a forced marriage (where a husband is selected at the time of birth of the female). According to Fernea, Arab women are forced to intermarry with relatives for inheritance reasons (p.37). In endogamy, women may marry their mother's nephew so that her dowry will remain in the family. These women do not have the luxury of marrying for love like we Americans do. Their matrimony is based on keeping their family financially capable. The dowry paid to the bride is called the mahr and is ideally used to buy jewelry and clothing for the bride and protect her financially in case of a divorce. However some women see the mahr as a price for the bride-signifying male dominance. The amount of the mahr is based on the bride's physical status, social class, political division, degree of endogamy, the physical proximity and social distances, and the age of the bride (Fernea, p.40-41). All of these discriminate the bride in how much she is paid for marrying a pre-selected husband. No wonder Islamic women feel oppressed.

Another factor thrust upon Islamic women is the young age in which they are expected to get married. Females can be as young as 12 or 13 and forced to marry men who are 20 or older. Fables tell of young wives married to older men who have secret younger boyfriends (Fernea, p. 41).

The Quran teaches basic equality between men and women including the following:

1. The Quran teaches against the view that women are inferior to men.
2. Islam stopped the practice of female infanticide in the Arab world.
3. Women are equal to men but have different roles.
4. Women are allowed to receive education just like men.
5. Women are to be given freedom of expression.
6. Marriage and family life are very sacred.
7. Motherhood is given incredible honor in Islam.
8. Husbands are to love their wives and treat them kindly.
9. Husbands are to make sure their wives are satisfied sexually.
10. The separation of females in worship is done for reasons of purity.
11. Divorce is to be allowed only when absolutely necessary.
12. Women receive a just inheritance in Islamic family law.
13. Veiling of Muslim women is done for protection and purity.
14. The seclusion of women is practiced for reasons of social purity.
15. Polygamy is allowed only if all wives can be supported and loved (Beverley, p. 46).

Islamic people are very set in their religion. However, their religion stresses equality among the genders. Are veiling, seclusion, and polygamy truly fair to women's equality? You decide if Islam women are being treated according to what the Quran teaches.

The Quran also states who a Muslim woman can marry and who she can't. A Muslim man has the freedom to marry a non-Muslim as long as his children are raised in the Islamic faith; however a Muslim woman may not marry a non-Muslim. Women's testimony in courts isn't even worth as much as men's. It is only worth half. When a female receives inheritance, it is only half the portion her brothers receive.

Islam women's lives are ruled by "schools of law" or systems of beliefs. In the Maliki school of law, the unmarried virgin has no legal capacity to act until she is guided into marriage by way of a wilaya (an adult male, preferably her father). Women in this school of law don't acquire full legal capacity at puberty, like other cultures; instead they acquire it upon their marriage. Although the Maliki school of law says that upon marriage the woman possesses full legal capacity, she still must have her husband's authority to carry out judicial actions, such as performing the pilgrimage to Mecca. She also requires his permission to go out of her house! Women do have some rights in this school of law including the right to deny her husband for taking a concubine. Her husband must also not be absent from home for more than six months; must not cause damage to his wife or her property; must let her visit her relatives; and cannot force her to live in a different area (Marin, p. 101-102).

Polygamy is as trademark to Islam as veils are. Islam law states that a man can have a maximum of only four wives; however a man can have as many concubines as he wants. This can be good for Islam women when men die in wars and the women outnumber them. But it can be bad if the husband treats his wives unfairly. Roald states that Islamic law says that a man can marry without even telling his first wife (p.211). Some Muslims state that polygamy serves to eradicate adultery. "We live in a society that allows for adultery... if a man does not marry another wife, what do you think of him if he commits adultery?" (Fernea p.41). In this belief, women are created only for the convenience of men. Spoiled men may either have many wives or commit adultery. He is not willing to compromise.

The good side of this issue is that polygamy is now uncommon. Less than 10% Muslim men in 1960 committed polygamy. It is almost completely limited to some tribal chiefs, feudal lords, childless husbands, and a few peasants in need of labor (Fernea, p. 42). These statistics show that at least most Islamic people believe and follow the Quran teaching that: Polygamy is allowed only if all wives can be supported and loved (Beverley, p.46). This must be a comfort to a great many women. If a Syrian man has no reason for having a second wife, he must have the consent of the current one in order to marry a second and must also prove in court that he can and will support more than one wife and their children (Rahman p. 457). It is believed that the globalization of third world Islamic countries has led to the decrease in polygamy. Since it is so taboo in modernized countries, that belief has been passed down to Islam.

Rahman points out that it may be reasonable in poor Islam societies where women usually have little economic independence to live with a co-wife rather than be divorced and unsupported by a polygamous husband (p.457). He believes that a total ban on polygamy is unrealistic because of this and other exceptions where it would be a good thing instead of bad. He even goes on to say that "Western societies might have been saved from experimenting with extramarital relations on a large scale and from the ensuing permissiveness where millions of children are denied the affection of either their mother or father or both" (p. 458). In response to the belief of some that polygamy is purely legalized prostitution, Rahman says that it may be better than nonlegalized prostitution since the former at least affords some kind of framework for the upbringing of children (p. 458).

Islam divorce is a complicated situation in which the gender of the person initiating is very important. According to Roald, marriage is a civil contract; both men and women are free to divorce (p. 206). Islamic women do not blame Islam or Islamic law for their discrimination in divorce but rather local customs based on pre-Islamic habits which still influence practice in the Muslim world. Marriage is a secular contract and not a divine union initiated by God. Roald lists three different kinds of divorces: talaq, khul, and tatliq. Talaq is the right to divorce for men only. When translated it means "being released" or "being set free." Khul is divorce for women and means literally "take off" or "dismiss." Finally, tatliq is granting a woman divorce. The irony is that Muslim feminists are fighting for the right to divorce. Yet most Muslim women are concerned with how to remain married and how to prevent their husbands from divorcing them (Roald, p. 220). These sentiments can be felt in the opening song of this paper.

The Quran teaches that "Divorce is to be allowed only when absolutely necessary. (Beverley, p. 46)." Following the Quran, the shari'a discourages divorce, calling it "the worst of all possible things," and only recognizing it in the last possible resort. A man may divorce his wife by pronouncing the talaq three times (the formula "I divorce thee!"). The first two times a husband says this may be followed by a waiting period, to determine if the woman is pregnant. If she is then she will have custody of the male children until the age of seven and the females until puberty. In the case of khul, the wife forfeits the dowry received from her husband on marriage. This can only take place with the consent of her husband, except under Maliki law, which recognizes the authority of the court-not the husband (Lunde, p.38).

In Maliki law, a woman can divorce her husband in only two ways: through khul or by asking the qadi for a divorce on grounds concerning her husband under specific circumstances. These circumstances are: 1) when she can prove that her husband has certain physical defects such as skin diseases or impotence; 2) when her husband has failed to pay the required sadaq; 3) when the husband absents himself from her for a long period of time and 4) when the husband fails to pay her nafaqa, that is, not maintaining her at the same economic level which she had enjoyed in her father's house before getting married (Marin, p.114). The one condition of 3) is when the husband takes a pilgrimage and may be accounted absent for up to 3 years; and then only if he has left enough food, clothing and accommodation for his wife (Marin, p.116).

In the case of "breach of contract" of the husband of the marriage contract, the wife may use documents to help along the process of divorce. The first model is a document signed by two witnesses in which they testify in favor of the wife that they know both spouses and that the husband has abandoned the wife. The second model involves the witnesses not only certifying the absence of the husband, but also the existence in the marriage contract of a condition which will prevent him from being absent for more than the stipulated time (for ex. A pilgrimage). The last model is a document in which the witnesses state that the wife has sworn that her husband has been away ant that she is not receiving any kind of accommodation from him (Marin, p. 118).

Regardless of the many procedures females have to go through to obtain a divorce, in 1958-1967, the divorce rate was high in Arab countries. In Syria, 66-105 per thousand marriages ended in divorce. In Damascus the range was 170-210 per thousand marriages. In Jordan 119-149 per thousand marriages ended in divorce. 166-236 in Amman ended. In Lebanon 61-74 per thousand marriages turned to divorce. In Beirut divorces took place in 103-129 per thousand marriages (Fernea, p.42). These numbers are likely to increase as western globalization takes place in the future. Divorce rate in the Arab countries is most common in the first years of marriage. "[Researchers] Prothro and Diab found that about one-third of divorces in Sidon and Tripoli took place before marriage; that is after the marriage contract was signed but before the couple began to live together (Fernea p.42)." This could be representative of breaking off the engagement of marriage in the United States. Most studies have found that Arab divorces within the first few years are the products of childless marriage. This is very interesting when compared to the many couples who get married in the United States for companionship-not to produce children. Many Arab men can ask for a divorce on no grounds at all-simply a change in mood may be his cause. But reforms have taken place thanks to Muslim feminists including the reform that was passed in 1960, that says an Egyptian husband seeking a divorce must state in court his reason for doing so.

On an interesting note, in countries such as Tunisia and Syria, a medical certificate of physical fitness is required to establish the capacity for marriage (Rahman p. 456). Islamic women can divorce their husband if he is physically or mentally incapacitated. On the other hand, Islamic men also have this right and in the case of a first wife denying the taking of a second wife, her husband could claim she was crazy and divorce her.

And what about getting back together? In America remarriages occur frequently enough. Well the Qur'an says that "If the husband divorces [his wife] finally, she shall not be lawful to him again until she marries another husband, but if the second husband were to divorce her, there is no harm if the first couple return to each other again, if they think they can observe the bounds of God" (Rahman p.458). Interesting... when I think of couples divorcing and remarrying, I think of violent talk shows like Jerry Springer. It is hard and amusing to imagine a submissive Muslim women yelling at her husband and then getting back together with him.

Islamic laws concerning marriage contracts, divorce and polygamy have been shown to have negative as well as positive effects on Muslim women. But the publicization of marriages in these countries has helped to shine a light on the need of more rights for Muslim women and stricter polygamy laws. Even simple things like registering a marriage protect women from abuse and subjection to slavery by her husband. The Tunisian and the Pakistani Muslim Family Laws Ordinance of 1961 imposes imprisonment and fines for not registering a marriage (Rahman p.456). So things are getting better every day, it just takes time. Third-world countries have their own set of beliefs, values and religion, and sometimes Western researchers forget this and don't understand the benefits of veils or polygamy. Globalization is occurring and will provide more rights to Muslim women in the future.