On Misyar And Marriage Contracts

After a friend quite facetiously suggested misyar as a solution to the "marriage problem" many of us are apparently facing today, he quite understandably got quite an animated response back. For those of you who can't be bothered to click on the wikipedia link this is basically a wedding contract with specific rights given up by the female regarding any or all of polygamy, co-habitation, maintenance and housing.

The criticism was on two fronts, curiously divided on gender lines. The girls mainly shot down the idea as a whole, saying that there was no way anyone except the most bastard of men would want to be a part of it. Needless to say this was easily refuted by giving various legitimate examples of when it would be a good thing and even more so when one of the ladies present actually said it was worth considering.

The guys on the other hand saw the usefulness of such a precedent in some situations, including that in which the man trivially didn't want to fulfill his rights (the bastard). However what we were united on was how it was little solution to our own afflictions of singledom - it's not like offering a misyar to prospective partners would suddenly open the doors to a marriage (especially when we consider the initial reaction of the fairer sex in our group).

I call misyar a precedent in the last paragraph since it's not really something that has directly come out of the Quran or Sunnah. It is in fact just a specific extension of seeing a nikkah as a legal contract that all parties concerned have deliberated and agreed on. This means that you can pretty much ask for anything you desire and stipulate any foregone conclusion for a potential future situation (with the notable exception of a fixed duration for the marriage), be it the number of kids you'll have together, whether a wife is allowed to leave the kitchen ever or whether a husband is allowed to marry further without the permission of his first wife[1].

The point is, of course, that both sides have to agree to that which is written down and so it's subject to the negotiation, redrawing and rejection that all contracts go through. This is in line with one of my own principles regarding the validity of unequal requirements (or in short: how it's perfectly acceptable for a non-virgin guy to insist on marrying a virgin girl just as it's perfectly acceptable for her to tell him to bugger off). It's fine to request whatever you want of a partner and your marriage to them, provided they know and agree to these requests before they commit.

Marriage contracts are becoming pretty popular nowadays, both as a way to ensure fairness and justice in a marriage as well as to promote the deep discussion of important topics before anything legal is signed. I'd always suggest that people consider them if only to get to know their opposite better during a time when romance may drown out sensible conversations about the future; the mere process of discussing such a contract may highlight the fact that you're not as suited to each other as you may have thought.

Ideally speaking, however, there should not be a need for such contracts in the first place. Level headed brides and grooms should be transparent, willing and able to have serious discussions about what they feel is important in a marriage and trust not to have to write it all down formally. And everyone involved should have a high regard for justice and fairness at all times, even if it's at the cost of their own well being.

There are other downsides to contracts too. A badly written one (one that predicts doom and gloom) can do more damage than good. Also a legal document is hardly the most romantic thing on which to base a marriage. And what about the times when you hit an issue not covered by an existing contract? You're going to have to wing it then anyway.

Of course in real life people aren't level headed or just. Situations and stakeholders also change over time, and so a fixed contract acts as insurance against this unknown world be it regarding a marriage or anything else, as well as providing answers to many situations yet to be encountered.

So yes, I think misyar or any agreed contract detailing unconventional choices good things - provided of course everyone involved in one thinks they are too. Who am I to tell a person what they will or won't want or need? We all should know what we want and need from a marriage and should have the gumption to ask of these things from a potential partner - in a time when marriages are falling apart because people weren't to know the opinion of their partners, finding out before it's too late can only be a good thing.

IANAS.

[1] Many people, particularly women, mistakenly believe that the first wife has the right to refuse her husband a further marriage by default. This isn't really the case (in fact one understanding is that he doesn't even have to tell her about it), since this right has been granted to the guy by God already, and no wife, no matter how pretty, can override that. What brides can (and probably should) do is ask for this specific right in their contracts (or at the very least give a clear and unambiguous indication before they marry that they would have a major, divorce inducing, problem with sharing their husband) at which point the groom will bind himself if he chooses to sign it.

Whether it's fair or not to assume no wife in this day and age would ever agree to the polygamy of their husband is beside the point in the legality of these things. That said, a just and honourable guy would always consider the feelings of those most close to himself when considering something so important (if at all), whether they have a contract hanging over their head or not. Best to just skip all the above and bag yourself one of those, innit?