Question
I require your assistance in finding out information regarding the following:
– if a man agrees to sign a contract before he gets married which states that he will not take a second wife, and in the event that he does he will pay his (current) wife RX and would allow his (current) wife the choice to end the marriage before he takes a second wife, would this contract hold up as being valid and enforceable under the laws of Sharia?
– could this contract be included in an ANC or should it be a separate contract? and who is responsible for enforcement of this contract?
– what are a woman’s rights under the laws of Sharia if her husband elects to divorce her?
Answer
In the Name of Allāh, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāh wa-barakātuh.
1. There are three issues to your query:
· Contractually obliged not to marry a second wife
· Paying his current wife
· having an option to end the marriage
· According to Shariah, the husband does not require permission from his first wife to marry a second wife. This is an inherent right conferred to him by Shariah. Therefore, if the husband contractually agrees not to take a second wife, such an agreement will be invalid and he will be allowed to take a second wife. Even though the husband fails to meet his contractual obligations, the current marriage will still remain valid and the husband cannot be forced in terms of Shariah to end his current marriage nor pay his current wife an X amount of money as compensation.
The third aspect regarding the choice to end the marriage requires further clarification. Is the choice to end the marriage given to her at the time of her marriage or will the choice be given to her at the time when the husband takes a second wife?
2. Since the above contract will be inconsistent with the Shariah Laws of Marriage, drafting one would be a futile exercise. ANC contract regulates the propriety consequences of a marriage and will not cover this aspect. However, if the current wife fears that her propriety rights would be infringed, she then may consult a legal expert and take his advice on the matter.
3. Any agreement entered into by mutual consent between two parties will be regarded as a valid contract in terms of South African Law. Therefore, the current wife may legally apply for the enforcement of the contract. However, in terms of Shariah this will not be permissible as it is the Husband’s right to marry or not to marry a second wife. This right conferred to the husband will still be valid even though he may have waived it previously. We have examples of these, such as the Bill of Rights in our secular law as well.
4. According to Shariah, it is the right of the husband to divorce. Therefore, if the husband elects to divorce his wife, she will not have an option to appeal such a decision. However, it must be borne in mind that Shariah does not encourage the husband to arbitrary issue divorce for any trivial or ordinary issue. There are due processes of mediation, reconciliation etc to be conducted prior to a final decision of divorce being made. It is for this reason it is stated in a Hadith “The worst of actions (from those which are lawful) is Divorce”.
And Allah Knows Best
Darul Iftaa, Madrasah Inaa’miyya
