Illegitimate, illegal or just ill-advised?

By Gihan Shahine

http://weekly.ahram.org.eg/1999/417/li1.htm

A young couple, in their first year at university, want to get married: Should they wait until they graduate? Even then, the young man may not be able to afford the expenses of marriage, buy an apartment or even find a job.

For some, the alternative is to get two witnesses to sign a paper that serves as the only evidence of their marriage. The relationship is usually kept secret, even from the couple's parents. Many young people are coming to believe that this form of marriage, known as Urfi marriage, is the only legitimate alternative to premarital sex, which is condemned as sinful.

In many cases, young men, usually those who bear the greatest financial burden of marriage, see the informal Urfi contract as a way out of the financial obligations and commitments of official matrimony. After all, they can always destroy the only document proving the marriage -- which is usually kept by the man -- in order to end up the relationship when they choose to. The woman, in this case, is almost always the loser: many women can neither prove the marriage nor obtain a divorce, and thus risks spending her life unable to remarry or even obtain financial support. If the couple have had a child, she could spend years attempting to prove paternity. It is this situation that the proposed amendment to Article 23 of the Personal Status Code seeks to remedy.

No record of an Urfi marriage exists in any government office. Neither of the spouses can thus file a lawsuit to document or prove the marriage if the other denies the relationship. Nor can a woman file for divorce or alimony or claim any of her other legal marital rights. The court will only hear paternity cases, but even these take much time and effort.

In a recently published story, Al-Ahram Weekly documented the spread of these "unofficial marriages", especially among university students. Since Urfi marriages are undocumented, no official statistics are available, yet many social commentators believe that the number of such marriages has increased significantly over the past ten years, and that many of them do not comply with Islamic doctrine, resulting in thousands of legal disputes over paternity and divorce.

According to the most recent statistics released by the Ministry of Justice, there are at least 12,000 paternity cases currently in the courts. Legal analysts estimate that 70 to 90 per cent of those cases are the result of Urfi marriages.

Perhaps this is why Mohamed Sayed Tantawi, the Grand Sheikh of Al-Azhar, called upon the government to ban Urfi marriages at a Book Fair seminar last week, saying that "these marriages entail the loss of the wife's rights, and are incompatible with the way the state functions".

Tantawi, however, did not say that Urfi marriages were un-Islamic. He explained that an Urfi marriage should comply with all the conditions of legitimate matrimony. But he insisted that "I personally do not recognise it, like it or even heed it because it entails the loss of the wife's rights and is hateful to God." He also maintained that women who accept this type of marriage have made the wrong decision. "Thus a law should be drafted to impose certain penalties on unofficial marriages in order to protect women."

Tantawi's statement has aroused heated public debate about the legitimacy of Urfi marriages. Whether or not such marriages are legitimate, furthermore, experts disagree as to whether they can be banned legally.

The legitimacy of Urfi marriage has long been controversial. Some believe it is religiously acceptable, since it fulfils almost all the conditions of ordinary marriages. Others, however, argue that since many of these marriages are kept secret and are not meant to establish a family, it is sinful -- almost on a par with adultery.

"It is the definition of Urfi marriage that has caused this controversy, for we have to differentiate between Urfi and secret marriages," said Ali Sahaba, president of the Personal Status Court of Appeals. Sahaba explained that an Urfi marriage, in its original sense, is an unofficial but legitimate form of matrimony. It is religiously correct provided it complies with Islamic doctrine, he maintained.

According to Shari'a (Islamic law), a legitimate marriage should be based on both partners' consent; furthermore, two male (or one male and two female) witnesses must sign the contract. The payment of the bride's wedding gift and the declaration of the marriage, at least to family and neighbours, are also mandatory. Three of the four schools of Islamic jurisprudence also stipulate that a woman who has not been married before must be accompanied by her legitimate guardian (usually her father, brother or uncle) while signing the contract.

"Legal documents are not a condition of marriage in Islam," Sahaba explained. "Documentation only became necessary to prove marriage when great increases in population occurred."

Many theologians, however, agree that today's Urfi marriages do not conform to the religiously approved formula.

"Today, Urfi marriages are usually conducted in great secrecy, even without the knowledge of the parents or relatives," said Sahaba. "They should therefore be termed secret marriages, and these are condemned by the Shari'a. Many people, however, confuse secret marriages with the correct Urfi marriage."

At the Book Fair seminar, Tantawi also condemned secret marriages as "illegitimate, sinful, and actually on a par with adultery."

According to Sayed Abul-Futouh, professor of Islamic studies at Ain Shams University, a marriage is considered illegitimate from a religious point of view if one or more of the conditions stipulated by the Shari'a are absent. An illegitimate marriage is considered invalid. "And unfortunately, that is prevalent now, especially among young people," he explained.

Mohamed Hamed El-Gamal, former president of Maglis Al-Dawla (the State Council, an administrative court), concurred. "I believe that what people call Urfi marriage these days is illegitimate, since two of the main conditions stipulated by the Shari'a are lacking. First, the mutual acceptance of marriage means that husband and wife must have the intention of forming a stable relation that is meant to last until death. In most cases, however, youths resort to such a marriage to fulfil a sexual desire, but not to form a family -- which should be the main target of marriage."

In most cases, El-Gamal added, the husband resorts to this type of marriage because he cannot fulfil the financial obligations of traditional matrimony. According to Shari'a, however, the man should be financially capable of getting married -- the second condition Urfi marriage fails to fulfil.

Fawziya Abdel-Sattar, former head of the legislative committee at the People's Assembly, agrees that the legitimacy of Urfi marriage has been largely breached. She insists, however, that no legislation can be drafted to ban or penalise it.

"What should actually be penalised is secret marriage, which is prohibited by Shari'a," she emphasised. "The penalty should be the same as that stipulated by the law in cases of adultery. The law may be helpful in combating illegitimate marriage, although it will be very difficult to prove the secrecy of the marriage."

Abdel-Sattar, however, insists that Urfi marriage cannot be banned since it complies with Shari'a. "We cannot prohibit what God has allowed," she maintained. "There are certainly many cases when a marriage fulfils all the legitimate conditions without being documented. How can it be punished by law in this case? What is needed is to increase public awareness especially among women and young girls about the problems Urfi marriage can cause."

Zeinab Shahine, professor of sociology at Ain Shams University, agreed: "There are certain conditions when Urfi marriage is a good compromise."

Shahine mentioned examples of a man whose wife is ill and who wants to get married without causing her any more pain; a widow with married children who would like to remarry but does not want to embarrass her children; or a women who needs the pension of her deceased husband but wants to marry again.

"It would be unfair to ban Urfi marriage," Shahine said. "What is happening today, on the other hand, is a kind of deviation that should be addressed by social scientists. Legal awareness should be raised through university seminars and media campaigns."

Both El-Gamal and Sahaba, however, agreed legislation is needed to penalise only illegitimate forms of unofficial marriage.

"The law should differentiate between legitimate and illegitimate Urfi marriages," said El-Gamal. "Only illegitimate marriage should be punishable by law."

The proposed law, El-Gamal explained, does not contradict the Constitution. "It is the right of the legislator to protect society against any harm caused by deviation. What happens on campus is that young girls are misled by their male colleagues to accept what they describe wrongly as Urfi marriage. And it is the right of the State to protect these girls," El-Gamal concluded.





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