Islamic Nikah

We are often asked about Talak – Khulla or Fasqh but sadly we are never asked about Nikah, this is mainly because not a lot of thought has gone into understanding Nikah before the agreement is made, people generally rush into Nikah without doing any due diligence, the marriage then breaks down and people wonder why.

So here is list below to do before agreeing to a nikah:

1. Start by making regular & sincere dua to the Almighty that Allah SWT shows the path which is good for you
2. Perform Istekhaara regularly
3. Seek advice from, parents, elders and all your loved ones, they will never want bad for you.
4. When seeking advice please listen to their advice attentively and do not speak over them.
5. Nabi SAW said when looking for a spouse, look for 4 things. these are Wealth,  Family Status, Beauty & Deen, but the one who is successful is the one who marries for the Deen, pay particular attention to this advice by the Prophet SAW, this means clearly that you marry someone who is firm on the Deen and will be aiding you to get closer to Allah, any other expectation and condition would be considered as unacceptable. yes we agree that couples should be attracted to one another too but ultimately the Deen needs to be firm.
6. Remember that the Nikah is one of the most favoured blessings from our creator to the human being and it is a contract of justness signed in front of the Almighty , where both parties sign to agree to be just to one another, this literally means you MUST treat your spouse as you want to be treated yourself and overlook one another’s shortcomings, in fact you must become a cloak for one another hiding each others mistakes from the public arena.
7. One another’s families must be compatible, this is often overlooked as people seem to make the mistake of thinking that you are just marrying the person and not the family, whilst this may be literally true, however in practice it is the family that is the true support mechanism and strength needed to keep the marriage together,  remember that your elders are an umbrella and blessing for you, your spouses elders are yours and your elders are your spouses too,  if the elders and family unit is strong then your marriage will withstand all your obstacles.
8. Do not insist on having your own house immediately after marriage, this is sometimes not possible, we know people in the 50’s and still do not own their own home, this is not a hindrance and should never be a condition.
9. Do not seek a huge Mahar or a prenuptial,  the mahar should be affordable and payable immediately, we have had cases where thousands of pounds was written in MAHAR, they write in the contract if the husband decides to divorce his wife then she will receive £10,000 from the husband, this is pre-empting a breakup even before you start and is not Islamic.
10. The bride & groom to be must have an understanding between themselves and therefore must be allowed to meet under the Islamic guidelines to see if there is compatibility, this is important to make sure they are in fact seeking similar things in life insh Allah.
11. Rememebr that this is a contract between the couple and therefore to agree to any contract the Bride & groom must be in capacity at the time of the nikah.

 

After this you can perform the nikah, we have outlined the simple steps for this below:

An Islamic Marriage (Nikah) is only valid once the pre-requisites have been met, which are as follows:

1. A Gift (Mahr) (NOT DOWRY) is agreed and paid to the bride by the groom
2. Two witnesses are required
3. Any person who can conduct the Nikah Ceremony, does not have to be an Imam or a Scholar
4. The Walima (Reception) is a loved Sunnah of the Prophet Muhammad PBUH and it is to make the nikah public and remove ambiguity but if the couple cannot afford to do so then it is recommended they keep the walima simple and feed a handful of people with light refreshments, there is no requirement in Islam to spend thousands of pounds on hiring fancy cars and lavish venues to entertain guests, in fact this is against Islamic values and is Haram

5. Please also remember that Nikah can only be performed between a Man & a Women in Islam

Keep making duas these are very powerful to seek the secret ingredient to make every relationship successful, barakah, without barakah relationships simply do not work.

 

Further information on capacity is found below:

 

Islamic law (Shari’ah) absolutely requires that contracting parties possess the legal capacity (ahliyyah) to enter into a contract for it to be valid. A contract (known as aqd) must be based on free, mutual consent between parties who are competent to understand and fulfill the obligations.

Here are the key requirements regarding capacity in Islamic contract law:

1. Requirements for Legal Capacity (Ahliyyah)

To have the capacity to contract, an individual must generally meet two main criteria:

• Sanity (Aql):The person must be of sound mind and capable of understanding the nature of the agreement.
• Maturity (Rushd/Bulugh):The person must have attained puberty and be capable of managing their own affairs and wealth wisely.

2. Situations Limiting Contractual Capacity

If a person lacks the above qualities, their capacity is either restricted or completely removed, often rendering their contracts invalid or voidable:

• Minority (Al-Sabiyy):Minors generally lack full legal capacity because they are considered unable to fully grasp contractual obligations.
• Insanity/Mental Disability:Mentally impaired individuals, or those in a temporary state of insanity, are considered unable to form valid agreements.
• Intoxication:A person who is intoxicated cannot distinguish between good and bad, making their contracts invalid.
• Coercion/Duress:If a person is forced to enter a contract against their will, the contract lacks “genuine intention,” making it invalid.
• Prodigality (Safih):A person who is reckless in wasting their wealth (prodigal) may be restricted by a court from entering into financial contracts independently.
• Sleep/Unconsciousness:Acts performed while asleep or unconscious are invalid.

3. Key Principles Regarding Capacity

• Protection of Rights:The requirement for capacity is designed to protect vulnerable individuals from being taken advantage of.
• Guardian Involvement:For individuals with limited capacity (like minors or those with intellectual disabilities), contracts may only be valid if authorized by a legal guardian or custodian.
• “Lifted” Obligations:A Hadith states that the pen is lifted (legal responsibility is suspended) from three people: one who is sleeping until they wake up, a child until they reach puberty, and an insane person until they regain sanity.

Question:
What are the requirements for a valid contract to be Shari’ah compliant and valid?

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

In essence, there are 6 fundamental requirements for any contract to be Shari’ah compliant and valid:

1)     Consensus

Consensus refers to the parties being in agreement, also expressed as the meeting of the minds.
It means the parties must agree as to the fact that they are contracting, as to the type of contract, as well as the fundamental details of the contract.
The offer and acceptance is the outer dimension or manifestation of such an agreement of the minds. However, it is not the only form an agreement can be deduced. As in the case of a contract by conduct or an implied contract, there is no formal offer and acceptance, yet an agreement can be deduced.
If each party had a different understanding then we have dissensus, which is the opposite of consensus. In that case a contract does not come about. For example, Zaid had the impression that he was purchasing the car, but Bakr had the intention of only leasing out the car, we have dissensus. Similarly, if Zaid has the impression that he is purchasing a VW Golf, while Bakr has the impression that he is selling a BMW, we have dissensus.

2)     Capacity

The person transacting must qualify to be able to enter in a contract.  A very young child and an insane individual do not have the capacity to transact.  There transactions will be invalid.

3)     Performance from both sides must be possible

The Fuqaha use the term مقدور التسليم (deliverable).  If one cannot perform the duty he has to the contact, a contract cannot exist. For example, one cannot sell fish from a river as he is not in the position to deliver it upon sale.  In contrast, it is permissible to sell a fish in a tank as he has the article of trade (fish) within his grasp and hence it is deliverable.

4)     The performance and the objective of the contract must be lawful

A contract with the performance of dealing in interest will be unlawful.  In a similar fashion, a contract to hire an assassin to murder someone will be unlawful as the objective of contract is impermissible.

5)     The presence of the constitutional elements

A valid offer and acceptance must be established either verbally, in script or by way of indication.  The practice today in the supermarkets is of effecting an offer and acceptance by way of indication.  The customer simply places his item on the checkout counter and the sales assistant scans the item without engaging in any discussion with the customer.
In addition, all the elements of the contract in question must be present.  In a sale, the laws relating to the article of trade and purchase price must be present.  In a pre-paid (salam) transaction, the laws pertaining to this form of transaction must be established.  In a lease agreement, the necessary requirements must be present.

6)     The performance must be ascertained or reasonably ascertainable

Everything in the contract has to be reasonably ascertainable.  In secular law, a contract is deemed valid if the subject of the contract is ascertainable sometime in the future.  In Islamic Law, a contract will formulate as long as there is a mechanism to ascertain the performance.  For example, an identical sample of the article of trade can be used to sell the actual commodity.  In this example, although the exact commodity is not being sold, but a sample is identical to the actual item, therefore specifications of the time are ascertainable.
If the above requirements are present in a contract, the contract will be valid.  However, due to the sensitivity and delicate nature of a contract, it is always advisable to sit with a Mufti and check the Shari’ah compliancy of the contract.  One term in the contract which is non-Shari’ah compliant can jeopardise the entire contract.

And Allah Ta’āla Knows Best

Mufti Faraz Adam,
Darul Fiqh