Negotiating Bliss

The bliss of an egalitarian and just relationship between spouses cannot be achieved through a sheet of paper. But Cassandra Balchin writes that in Muslim contexts efforts to take a fresh look at marriage contracts is certainly a step towards this goal
Cassandra Balchin
8 March 2010

Many have heard about Afghanistan’s Shia Personal Status Law which last year looked like granting husbands total obedience from their wives, in effect even permitting marital rape. Yet few have heard about the bold new Muslim marriage contract endorsed by the country’s Supreme Court. A contract that means Afghanistan’s women can demand far more than the right not to have to give their husbands sex.

In contexts as diverse as Afghanistan, the UK and North Africa, progressive Muslims and women’s groups have begun looking at the marriage contract as a practical way of negotiating marital bliss and an end to the presumed dominance of the husband over the wife. In each there have recently been major initiatives around model marriage contracts with a firm commitment to advancing equality within the family.

After the fall of the Taliban, “We decided to prioritise the marriage contract because it seemed to be a feasible and practical remedy to secure the rights of women within families. Amending the family law required complex procedures, whereas the marriage contract only needed the Supreme Court’s approval,” said Roya Rahmani, an Afghan activist speaking on the success of the marriage contract campaign.

Dr Ghayasuddin Siddiqui, Director of the London-based Muslim Institute which launched a model contract in 2008 that emphasises mutual consultation and shared obligations, says “the new contract is designed to guarantee greater harmony within Muslim marriages in Britain. It emphasises the Qur’anic vision of marriage as a relationship of mutual love, mercy and kindness.”

Hundreds of miles away in the Maghreb countries of Algeria, Morocco and Tunisia, a model contract was also launched in 2008 following community consultations in which almost 1,500 women participated. Saida Kouzzi from the regional office of Global Rights points out that while women in the region have many rights and any conditions inserted in a contract are often just ignored by the husband in a situation of conflict, a model contract is nevertheless a useful strategic tool for advocating for women’s equality in the family both at the community and court levels.

Unlike Christian marriage which is a sacrament – a triangular promise between the spouses and God - marriage in Islam is a contract. It is a mundane matter strictly for negotiation between the parties, pomp, roses and spectacular bridal wear notwithstanding. In the classical understanding, and even among today’s conservatives, it is accepted that no religious words or imam are needed. With the Qur’an also exhorting believers to record financial dealings in writing (Surah al-Baqarah:282), there are strong grounds within Islam for some thoroughly modern marriage negotiations.

Yet negotiating marriage is neither unusual nor some modern innovation. Egyptian academic Amira Sonbol has researched Ottoman court records, dating back to the 14th century which reveal common litigation regarding marriage contract conditions. In more recent history, negotiated conditions have long been possible in Pakistan and Bangladesh, where the standard marriage contract introduced under the 1961 Muslim Family Laws Ordinance leaves space for “any other conditions” as well as negotiated monogamy and the unilateral right of divorce for the wife to be inserted into the contract. In Saudi Arabia they simply never lost the habit, from the beginnings of Islam to the present.

According to Dr. Maha Yamani, common conditions inserted in Saudi marriage contracts include the wife’s right to continue education or employment after marriage and to spend weekends and holidays with her family, the transfer of the matrimonial home to her name in the event of divorce, and the right to a driver (since women are not permitted to drive).

Despite the great diversity of laws and practices across the Muslim world, the conditions women insert into the contract when they get the chance are remarkably similar. They want greater financial autonomy and security, a fairer division of property reflecting their contribution to the family’s finances, freedom of mobility and equality in decision-making, a monogamous relationship, and, should mutual understanding break down, then equal access to divorce.

In other words, the presumed standard model of Muslim marriage, which regards the male as head of household, just isn’t working in women’s eyes. This model is an edifice built entirely on the concept of qiwamah (translated variously as superiority, guardianship, being in charge of, responsibility) which is derived from one of the most contested Qur’anic verses regarding gender relations (Surah al-Nisa:34). The importance of this concept and the urgent need to re-think it is indicated by the fact that two major progressive initiatives are currently researching qiwamah: the Oslo Coalition on Freedom of Religion or Belief and Musawah, a global movement for equality and justice in the Muslim family.

Women’s enthusiasm for a marriage based on equality and justice, and excitement at the possibilities offered by mutually agreed negotiations is evident. The UK’s model contract has been downloaded some 17,000 times since its launch two years ago – or nearly 50 copies a day – most of the interest coming from women. “There has been great interest,” according to Dr Siddiqui. “It has been one of the most discussed documents in the Muslim community which shows the need to do something along these lines.” While “The younger community’s support for this document was overwhelming,” says Dr Siddiqui, “many clerics did not support the document.” This apparently led some community organisations in which clerics were active to reverse their earlier support for the document.

Activist efforts to introduce reformed marriage contracts and publicise the possibility of inserting conditions that can help redress gender inequalities may be a short cut to reform in family law and practices, but they are not always an easy short cut. The version of the new contract approved by the Afghan Supreme Court does not include some of the proposed conditions such as a default ‘right to divorce’. In addition, all conditions were moved to the end of the contract under the title aide memoire. The experience in Morocco is similar, where a new Moudawana (personal status law) emphasises women’s right to add conditions to the contract but Saida Kouzzi notes, “even the civil authorities who oversee and register the marriage contracts refuse to insert conditions. They will ask the woman to write their conditions in a different document, which then becomes secondary to the main marriage contract and not as easily enforced.” Meanwhile, men who are a ‘better catch’ in, for example, Syria simply refuse potential brides who come with contracts that have multiple conditions.

In Britain, and Canada where a similar initiative to provide a sample marriage contract is also underway through the Canadian Council of Muslim Women, there is the added complication of the interaction of British law with Sharia laws applied by non-state legal systems. In both countries, community activists encourage couples to marry under the civil law in addition to any Muslim marriage ceremony and contract, thus ensuring Muslim women have the same rights as all married women. “British and Islamic marriage have the same basic requirements: public declaration, witnesses, a proposal and acceptance. Our message that people should go first for the civil marriage and then do a nikah (Muslim marriage ceremony) is catching up. Getting mosques registered and then having both ceremonies at one and the same time will solve many problems,” notes Dr Siddiqui.

The bliss of an egalitarian and just relationship between spouses cannot be achieved through a sheet of paper. But in Muslim contexts efforts to take a fresh look at marriage contracts is certainly a step towards this goal. “Achieving equality in the family in Afghanistan is the work of generations – this is not the end of the struggle, but the beginning,” says Roya Rahmani. Her advice to those who seek equality and justice in the Muslim family is: “dare to dream big and realise those dreams through small steps.”

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