Saturday, April 01, 2006

Marriage Prenupitals - Part 2

Part 1, called Marriage Strangenesses.

Divorce By Words

"I divorce you!"

And with those words, a woman's life comes crashing down. Every woman has three simple words they would like to hear occasionally from their special someone. Many Muslim women have another three words they would never like to hear.

In the olden days of Islam, when the spirit of the laws were properly followed, such three words would not be uttered lightly. If a couple had problems, they would follow the Islamic procedure of appointing two arbitrators from their families to resolve the dispute, according to the Quran (4:35). Divorce was a last resort. If a man uttered those words, he was now liable to maintain the woman in the same standard as their marriage until she got remarried. The woman also had other rights, similar to those of a man (Quran, 2:228).

Nowadays, women's rights are a joke. The Shariah in the so-called Muslim countries are 'interpreted' by scholars who are men, through a cultural bias, disregarding the spirit of the law. Why should a man in a Muslim country, therefore, continue to have the right of divorce?

Let's assume now, you (a guy) are in Canada. You marry, and things are not working out. You divorce your wife by saying "I divorce you". But Canadian laws will not recognize this divorce. You must separate for a year before applying to the courts for a divorce. The whole process takes two years. For these two years, you are legally married according to the laws in the land you are living in. And in Islam, marriage is a legal contract. So, are you married, or not? And once again, to prevent such a legal limbo, a man must forfeit his right to divorce. And Islam, in its wisdom, has allowed such a condition to be placed in the marriage contract, which it has made mandatory on Muslims. It is a shame most brides and grooms blindly sign on the paper when sobbing Kabul Hai (each sobbing for different reasons), without giving the most important document of their life a second thought.

Islam by default appears to give men certain rights which if the women do not check via a prenup they could be the losers. Canada gives women lots of rights which if a man does not check via a prenup he will be the loser.

Premarital Property

Moving on, you (a guy in Canada again), have graduated and are working here. You have a car, and perhaps a condo or house. Your parents own property as well. You have a few investments in RRSP, pensions, stocks and shares. You now marry a girl (probably from back home). Things don't work out and you divorce. Now she owns 50% of whatever you own, by Canadian law. You worked hard for your car, your condo, your funds, and she gets them.

Unless you had a prenup, where you had listed your property that you were bringing into your marriage, on which your spouse has no claim. This situation is also applicable for women.


I once discussed the Hostage Mahr situation; suffice it to say if you are a woman who has specified a huge amount of Mahr but payable only in case of divorce, you have gutted a right Allah has given you. Demand a Mahr, payable before marriage (as is the proper Sunnah) and make it such that the groom has the capability to pay out of his own pocket.

There are a few other issues people deem important to place in a marriage contract. One of my female classmates had placed a clause that her husband would not forbid her from working, while a guy I know placed a clause that said the husband's career would take priority. Now I am no shiekh or lawyer, so take this post with a pinch of salt.

When I mentioned all this thoughts to an elderly married female cousin of mine, she looked at me for sometime and then remarked, "You know Mezba, you have analyzed marriage as a contract. You have thought of everything. But in all this, where do you find place for true love? Shouldn't that be the most important thing in a marriage, rather than clauses?"

I had no answer.



Aisha said...

Very nice. I'm going to link to these on the bottom of my new post since it is along the lines of your previous two posts.

Southern Masala said...

Interesting points. BTW, I like your blog, I am going to have to come back and read more. Weren't you the same one who had a cousin who revoked her husband's right to talaq in the nikkah contract? I think that is a great idea too. What about a provision allowing the woman a divorce and maintenance in the case of a man wanting to practice polygamy?

NAB said...

Thanks a lot Mezba. That's really all I can say.

mezba said...

@Aisha: thanks for the trackback.

@Southern Masala: Welcome! Yes, it was one of my cousins. I was perusing through their marriage contract as it needed to be translated to English for immigration, and was surprised to see this clause (this was way back in 1978!). She mentioned it to few girls who are getting married now and all of them put this into theirs too. Apparently when she was getting married in Bangladesh the standard marriage form obtained from the government had a question "is the right of divorce by man curtailed in any way?", just to make women aware it could be done. Don't know if its still like that there.

@Nowal: You linked! Merci.

Anonymous said...

in this post you narrarated your view- talking about marriage as a contract and then brought up your cousin's view. i think looking at marriage as a contract is a much better way to approach marriage than worrying about love. i have seen so many women and men get totally screwed over precisely because they were 'in love' and either felt bad demanding things in the prenup or figured that the partner loved them so much they would never have to worry about those things, the others word was enough. and they payed dearly for that. love will come.. it can even be there from the get go, but you can't undermine the importance of the legalities, something most people just don't think enough about before marriage.

Aisha said...

Love is important and all but you also should be practical as well. There is nothing wrong with using both your heart and your head when getting married. As Muslims we know that marriage is indeed an agreeement to spend your life with someone and share a family etc. and even if the person makes you go googoo gagga you should still enter into the marriage in a way to protect all people as well as possible b/c though at the time you can't fathom it, things can go wrong and so the mature part of our brain must think for those .000001 percent chances. Love and well thought out marriage contracts can certainly coincide :)

Chai Anyone? said...

interesting points.