The Marriage Contract

January 21, 2017

You should include the right to divorce in your contract, but I didn’t

Over three years ago I took a course on marriage with Umm Al Khayr, a Shaykha of mixed descent residing in Amman, Jordan. In that course, I learned a great deal about women’s rights in marriage, the marriage contract and advice on having a good marriage. I continued to learn a great deal from Umm Al Khayr when I was able to travel to the gatherings of Sheikh Nuh Ha Meem Keller and able to later reside in Jordan. Growing up I always had the idea of being a homemaker and the “backward” belief that a woman’s focus should be the home. Umm Al Khayr relieved me of feeling like an outlier in modern society by addressing marriage in it’s most basic format -men work outside the home, women work inside the home. One of the greatest things I remember her saying to me is that you can’t leave your obligations to help your husband with his. Housework isn’t a real obligation in the truest sense of the word (at least in Shafi’i fiqh) but it is the logical conclusion in a marriage where the man is the primary breadwinner.

Another thing Umm Al Khayr taught me is that women can get divorced in Islam. Of course, I knew of Muslim women who were divorced but it seemed to me that attempting to initiate divorce as a woman was a great difficulty from a legal perspective. Men could simply say “I divorce you” while women had to go through the court system and since there was no Islamic court system in the secular West, women were at the hands of their husbands or their Imams to release them from an unwanted marriage which could sometimes prove impossible. I remember sitting in front of Umm Al Khayr in one of those gatherings Sheikh Nuh and co. provided once a year for their students across the globe. We were all crowded around Umm Al Khayr, which was common. Sometimes we enclosed her until the point where there’d only be a small circumference surrounding her, probably the very least amount of personal space we could provide while being as close as possible. I recall how much my legs ached with all of us bundled so close together to get as close as we could to her words and her presence. And she never seemed to mind, I actually was a bit afraid of her upon first seeing her because of the grandeur of her presence until I realize how jovial she was and felt at ease. She said to us, the first thing I say to women when they come to me crying about their marriage and saying they can’t get a divorce is “Yes you can”.

In the Marriage course I took with her I learned that as a woman you can request the right to divorce (in the marriage contract) -in a similar way in which the man does, I.e. verbally. Everything she taught us in that class I promised myself I’d do when the time came, but I didn’t. Way before I married my husband I was speaking to another man with the potential of marriage I expressed to him that I wanted the right to divorce to be in our contract, he basically responded with a “hell no”. On the morning of my marriage to the man, I am blessed to be married to we decided -at my mother’s request, to print up a contract. I did a quick google search for “Islamic Marriage contract” and went over each page line by line with my soon-to-be husband. Now that I think about it, I’m amazed that by the time I was ready to marry my husband I would have done it without a contract if not for my mom’s insistence, I didn’t even think about it.

When we got to the line about “both parties having the equal right to divorce” my soon to be husband responded in somewhat of an agitation “I’m not agreeing to that”. In all honesty in the last few months, because of discussing the issue on a podcast with my mom and on Facebook, as much as I encouraged women to do so I wondered if I wanted the right myself. As I recall, though my Fiqh on the issue needs refreshing, when a woman has the right to divorce it’s one finalized divorce, unlike men who have at least two chances for reconciliation at each pronouncement. Did I really want to give myself that kind of power? Years ago when I first took Umm Al Khayr’s class I would have insisted but more recently I wasn’t so sure. In a moment of anger, sadness, depression, I could end up uttering words that would ruin my entire life. And knowing my past issues with being able to live in that dark hole of depression where suddenly the entire world turns black, I wasn’t sure I could trust myself.

I do recall something about Umm Khayr saying a couple discussed this and had such a marriage contract with this provision and I recall her distinctly saying the woman was “level headed”. Am I level-headed? Sometimes, but there are certainly times when emotions rule the day. So when my husband refused to agree to the part of the marriage contract where I would be able to verbally divorce, I wasn’t strong enough on the issue to argue against him. So we crossed it out.

I learned also from Umm Al Khayr was that there was no such thing as alimony in Islam, once the waiting period is up, you’re on your own. Someone in the class described to her an example where a woman was a housewife, no work experiences, and how difficult it would be to support herself, “well then she shouldn’t have gotten herself divorced”. Obviously, a woman being divorced is not always her fault but it withstands that the best insurance against divorce is a good marriage.

So I didn’t include the allowance of verbal divorce in my contract, I still think women, in general, should. In a Western society where there are no Islamic court systems and women have to rely on our local Imams or husbands, we are presented with a kind of oppression were hoping to get a “fair day in court” is unlikely. Some women should probably be advised more strongly to have such a contract while others may not have much to worry about one way or the other or may even be disadvantaged by such an arrangement (hotheads who may divorce themselves at the first sign of trouble).

Whatever someone decides to put in their marriage contract, should be tailored to the needs of both parties. It goes without saying that no one gets married with the intention to get divorced. Once the ink dries on the signed marriage contract the goal is to use the example of our beloved messenger, peace to him, to create the best marriage we can -leaving divorce as a near impossibility.

And real protection comes from Allah alone.

1 Comment

  • Ayesha

    I read sea without shore and subscribed to unto the one but I can’t agree with his wife’s comments about marriage, elsewhere as well. I do realize they’re just comments though so I don’t have to totally leave Islam based on them. It’s a pity for me because I find the shadhili tariqa to be more direct than naqshbandi (I have listened to all of the sacredlearning.org general talks.) It’s a shame that I put my feminist opinions above these people’s comments on God’s rules because these are the only guides and if I don’t agree I can’t be guided. this has been going on for 20 years now, my search for an acceptable tariqa. Maybe I sound like a child speaking out of turn at the adults table but I’m ignorant because I can’t accept these guides.

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