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Nikah 'urfi is a "customary" Sunni Muslim marriage contract that is not registered with state authorities. This form of marriage usually requires witnesses. Couples repeat the words, "We got married" and pledge commitment before God, although there are many other informal ways in which people marry `urfi. Usually a paper, stating that the two are married, is written and at least two witnesses sign it, although others may record their commitment on a cassette tape and use other forms of documentation. Most Arab countries do not recognize 'Urfi marriages and do not allow partners to get a 'legal' divorce since the government does not recognize the legality of the marriage in the first place. Sometimes these relationships are a way for people to have sex with each other within what is perceived to be a licit framework. Nevertheless, the relationship is often kept secret from family members and women often become pregnant but are unable to prove they are married or get a divorce.
'Urfi (Arabic: عرفي) comes from the Arabic word 'Urf, which means custom, convention, or a customary act. Many Sunnis who adhere to the Ahle-Sunnath Wal Jamath and Sufi point of views have often criticized this practice, and have related it to prostitution. The term 'Nikah Misyar' has not been used as a legal term in historical Sunni jurisprudence, and is argued by many Sunnis to be something new that does not fit in within the Sunni tradition.
In its modern context, 'Urfi is used to connote something that is different from official state ceremony or procedure. Thus a Nikah 'urfi' in an Islamic state may denote something similar to a common-law marriage in the west, while in some countries, such as Egypt, a Nikah 'Urfi is a marriage that takes place 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.
There are three criteria for defining legal issues in Islamic jurisprudence (fiqh):
- Shari : something that is clearly defined in the shariah.
- 'Urfi : conventional or common tradition. An 'Urfi definition is acceptable to the common people without any scientific or shari precision.
- Ilmi : a definition presented by science.
If the shariah defines something, all Muslims must follow that definition. If the shariah is silent on an issue, Muslims should follow the 'Urfi definition.
The 'Urfi marriage has always existed, but for different reasons.
In the past, it was common among the widows of soldiers who had huge pensions and they did not want to lose it by officially re-marrying. Now, however, it is mostly among university students and young couples who cannot afford the high cost of marriage.
Undocumented 'Urfi marriages are increasingly popular among Egyptian youth. The high cost of marriage forces many young couples to wait several years before they marry. Conservative Egyptian society forbids sex before marriage, so many young people consider the 'Urfi marriage a solution. 'Urfi marriages are conducted by a Muslim cleric in the presence of two witnesses. However, they are not officially registered and are not legally financially binding on the man. Couples married in this way often meet in secret and avoid the expense of renting an apartment. The 'Urfi marriage can be disastrous for the wife in legal terms. If the husband leaves her without granting her a divorce, she had no legal right to seek a divorce since 'Urfi marriage is considered illegal. Her husband could remarry. The wife is in a more difficult position. If the wife remarries, she can be accused of polyandry, which is punishable by seven years in prison in Egypt, or she could remain single for the rest of her life.
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.
In the Islamic law (Sharia) all marriages are done with two witnesses, a guardian of the female (under normal circumstances it would be the father) and there is no need for any written or verbal contract of the type mentioned in this article for the marriage at all, except if the woman wishes then she can set conditions for her husband (none of which must be against Islam in any way). The part of a contract of marriage that is absolutely necessary is that it is agreed to by the man and the woman to be married and whether it is verbal or written makes no difference, hence the witnesses. The additional requirement is mahr to be paid by the man to the woman; this marriage gift may be in fiscal form (money, gold etc.) or chattel (goods, clothes etc.) or may be promissory payment at future date or in the event of husband divorcing the wife by talaq. Hence it can be seen that it also fulfils what any Western lawyer knows are the three requirements of a contract, i.e. offer, acceptance and consideration (money).
With regard to “ ‘urfi marriage” – there are two types of this:
1 – Where the woman is married in secret, without the agreement of her wali (guardian). If that is the case then it is a haraam marriage contract which is not valid, because the agreement of the wali is one of the conditions of the marriage contract being valid. وعن أبي موسى قال : قال النبي صلى الله عليه وسلم : " لا نكاح إلا بولي " .
It was narrated that Abu Moosa said: Muhammad said: “There is no marriage without a guardian.” (Narrated by al-Tirmidhi, 1101; Abu Dawood, 2085; Ibn Maajah, 1881. )
It was narrated that ‘Aa’ishah said: Muhammad said: Any woman who gets married without the permission of her guardian, بغير إذن وليها فنكاحها باطل فنكاحها باطل ، فنكاحها باطل her marriage is invalid, her marriage is invalid, her marriage is invalid. But if the marriage is consummated then the mehr is hers because she has allowed him to be intimate with her. If they dispute, then the ruler is the guardian of the one who has no guardian.” (Narrated by al-Tirmidhi, 1102; Abu Dawood, 2083; Ibn Maajah, 1879. )
2 – It should also be noted that some of the fuqaha’ say that publicizing the marriage is one of the conditions of it being valid, which is not far from the truth; again comparable to Western requirements of traditional Judeo-Christian marriages.
Publicizing the marriage demonstrates the difference between marriage and immoral relationships. This is supported by the words of Prophet Muhammad: “The difference between what is halaal and what is haraam is beating the daff and raising the voice at weddings.” Narrated by al-Tirmidhi, 1088; al-Nasaa’i, 3369; Ibn Maajah, 1896; (i.e. pulicity of marriage is essential - it can not be clandestine). Ibn al-Qayyim said: The Lawgiver has stipulated four conditions for marriage in addition to the marriage contract, in order for there to be no suspicion of immoral conduct: it should be publicized, there should be a wali (woman’s guardian), the woman should not do the marriage contract herself and it is mustahabb to beat the daff and raise voices (in song) and give a walima (wedding feast), because that does away with the means that may lead to immoral actions under the guise of being married.
- Hasso, Frances S. Consuming Desires: Family Crisis and the State in the Middle East (Stanford University Press 2011)
- Marriage and Morals in Islam by Sayyid Muhammad Rizvi.