A marriage contract is, in its simplest form, a legal agreement between two people.
The contract can serve many purposes. It is primarily used to stipulate the conditions of the marriage or to determine how property and assets will be divided in the event that the marriage ends.
If there are children prior to the marriage the contract can also stipulate how the children will be cared for in the event of divorce.
Religious marriage contracts provide additional unique conditions and requirements for both spouses, often detailing a couple's commitment to each other.
Waheeda Amien, An Associate Professor in the Department of Public Law at the University of Cape Town talks about Muslim marriage contracts.
A Muslim marriage contract is similar to a traditional one in the sense that it is also an agreement between two people, to regulate the terms and conditions of their marriage.
According to Amien, “In order for it to be valid, it must be witnessed by two people. The contract can be oral or written”.
What makes it unique, however, is that it is regulated according to the prescripts of Islamic law, says Amien.
She explains that a Muslim marriage under South African law is not yet recognised as legal. However, the South African judiciary has recognised that the contract underlying the Muslim marriage is legally enforceable, provided that the terms and customs arising from the contract can be proven. If there is no written contract, the default position under Islamic law regulating marriage will apply.
Marriage, once thought to be a sacred lifelong commitment has lost its meaning in a society that is constantly in and out of relationships.
The very idea of a pre-nuptial contract has been a controversial one in the marriage debate with some parties believing that marriage contracts are a sign of non-commitment, but is this true?
“Personally, I don't think so. But there are couples who believe that insistence on a written contract calls into question a party's trust in the relationship.”
Amien says Islamic law allows parties to regulate their marriage via agreement so a written contract simply gives effect to that right under Islamic law.
For more insights join the Muslim Marriage Contracts course hosted by UCT.