Zawag al-'urfi
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Nikah 'urfi (Arabic: نكاح العرفي) is a "customary marriage contract" that typically requires a walī (guardian) and witnesses but does not need to be officially registered with state authorities. Couples often repeat the phrase, "We got married" and pledge their commitment, although there are many other informal ways in which people enter into 'urfi marriages. Usually, a document stating that the couple is married is written, and at least two witnesses sign it; however, some may record their commitment on a cassette tape or use other forms of documentation. Most Arab countries do not recognize 'urfi marriages and do not permit partners to obtain a legal divorce since the government does not acknowledge the legality of the marriage in the first place. However, under the new personal status law in Egypt passed on January 29, 2000, divorces from 'urfi marriages are now recognized. While this new Egyptian law affirms a woman's right to seek divorce from an 'urfi marriage, it does not allow for claims regarding alimony or child support. Unlike traditional marriages, most 'urfi contracts are not publicized, are typically short-term, and do not require men to provide maintenance for the women. Sometimes, these relationships serve as a way for people to engage in sexual relations within what is perceived as a religiously acceptable framework. In many instances, 'urfi marriages are contracted without the permission of the woman's male guardian (walī), and the relationship is often kept secret from family members.
Etymology
'Urfi (Arabic: عرفي) derives from the Arabic word 'urf, which translates to custom, convention, or a customary act. Many Sunnis who follow the Ahle-Sunnath Wal Jamath and Sufi perspectives have frequently criticized this practice, linking it to prostitution. The term Nikah Misyar has not been recognized as a legal term in historical Sunni jurisprudence, and many Sunnis argue that it is a recent development that does not align with the Sunni tradition.
In its modern context, 'urfi refers to something that differs from official state ceremonies or procedures. Therefore, a nikah 'urfi in an Islamic state can be likened to a common-law marriage in the West. In some countries, such as Egypt, a nikah 'urfi is a marriage that occurs without the public approval of the bride's guardians, even though the contract is officiated by a religious cleric and sometimes by a state representative.
Legal issues
There are three criteria for defining legal issues in Islamic jurisprudence (fiqh):
- Shar'i: something that is clearly defined in the shariah.
- 'Urfi: A conventional or common tradition refers to an 'urfi definition acceptable to the general public without any scientific or shari precision.
- 'Ilmi: a definition presented by science.
If the shariah defines something, all Muslims must adhere to that definition. If the shariah is silent on an issue, Muslims should follow the 'urfi definition. The 'urfi marriage has historically existed, but for various reasons. In the past, it was common among the widows of soldiers who had substantial pensions and did not want to lose them by officially remarrying. However, it is primarily prevalent among university students and young couples who cannot afford the high costs associated with marriage.
Undocumented 'urfi marriages are becoming increasingly popular among Egyptian youth. The high cost of weddings forces many young couples to delay marriage for several years. Conservative Egyptian society prohibits sex before marriage, leading many young people to view 'urfi marriage as a solution. A Muslim cleric conducts these marriages in the presence of two witnesses. However, they are not officially registered and do not have legal financial binding on the man. Couples entering into this arrangement often meet in secret and avoid the costs of renting an apartment. Legally, an 'urfi marriage can be disastrous for the wife. If the husband leaves without granting her a divorce, she has no legal right to seek one since 'urfi marriages are considered illegal. Her husband could remarry, placing her in a more challenging position. If the wife remarries, she risks being accused of polyandry, which carries a penalty of seven years in prison in Egypt, or she may have to remain single for the rest of her life.
The new Egyptian law (passed in 2000) recognizes the woman's right to seek divorce from an 'urfi marriage. However, the law denies her alimony and child support.
There are also controversial, unofficial "'urfi" marriages, where a couple signs documents declaring themselves married. The couple does not inform their families of the marriage. Many Egyptian clerics are against this type of 'urfi marriage, calling it a cover for pre-marital sex.
An extreme form of 'Urfi marriage is known as zawag al-'urfi: to give prostitution an Islamic cover, some women enter into secret marriage contracts with their summer visitors. Known in Egypt as zawag al-'urfi, this contract is made without witnesses and typically ends in divorce by summer's end. Most of Egypt's Islamic scholars condemn this use of zawag al-'urfi.
Traditional Islamic view
The essential part of a marriage contract, according to all Islamic schools—both Sunni and Shia—is the mutual agreement of the man and woman to marry, regardless of whether this agreement is verbal or written; hence the necessity of witnesses. Another requirement is the bride's dower, or mahr, which must be paid by the man to the woman. This marriage gift can take the form of cash (money, gold, etc.), physical goods (clothes, etc.), or a promissory payment scheduled for a future date, especially in the case of the husband divorcing the wife through talaq. Thus, it incorporates what Western lawyers define as the three essential elements of a contract: offer, acceptance, and consideration (money).
Concerning "'urfi marriage" – there are two types of this:
1. Where the woman is married in secret, without the agreement of her wali (guardian). 2. Some of the fuqaha' say that publicizing the marriage is one of the conditions of it being valid; again comparable to Western requirements of traditional Judeo-Christian marriages.
The former form of 'urfi marriages is commonly practiced by Salafi Muslims. The Salafist practice of 'urfi follows the simplest procedures for marriages in the Islamic world. It does not require parental consent, a fee, or an official contract, and although such marriages hold no legal value, the marital contract religiously recognizes the couple's union. Supporters of the practice argue that 'urfi marriages are essential in contemporary times, allowing individuals to pursue cohabitation with partners of their choice, free from the burden of conventionally expensive weddings, while remaining devout in conservative societies. As a result, the custom is popular among university students throughout the Arab world, and some advocate for its legalization. However, critics such as Dalenda Larguèche contend that this social phenomenon has been revived by "reactionary influences" within poorer youth segments and claim that it has no place in modern, open societies.
See also
External links
- More information is available at [ Wikipedia:Zawag_al-'urfi ]
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