Stipulations in Marriage Contract


Hadith - Malik's Muwatta Book 28, Number 28.6.16

Yahya related to me from Malik that he had heard that Said ibn al-Musayyab
was asked about a woman who made a stipulation on her husband not to take
her away from her town. Said ibn al-Musayyab said, "He takes her away if he
wishes."

Malik said, "The custom among us is that when a man marries a woman, and he
makes a condition in the marriage contract that he will not marry after her
or take a concubine, it means nothing unless there is an oath of divorce or
setting-free attached to it. Then it is obliged and required of him."


Ibn Qudaamah (may Allaah have mercy on him) said in his book Al-Mughni:

“If he married her on the condition that he should not make her move from
her house or her city, then this condition is valid, because it was reported
that the Prophet said: ‘The most deserving of conditions to be fulfilled
are those by means of which sexual intercourse becomes permissible for you.’
If he married her on the condition that he will not marry another wife, then
she has the right to leave him if he does take another wife.” In conclusion,
then, the conditions of the marriage contract are divided into three types,
one of which must be adhered to, which is of benefit to the wife, such as
her being able to stipulate that he cannot make her move from her house or
city, or travel with him, or take another wife or a concubine. He has to
adhere to these conditions, and if he does not, then she has the right to
annul the marriage.” [Al-Mughni by Ibn Qudaamah, part 7, Kitaab al-Nikaah]


Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) was asked this
question and he replied in Al-Fataawa al-Kubra:

“Question: a man married a woman and she stipulated that he should not take
another wife or make her move from her house, and that she could stay with
her mother, so he married her on this basis. Does he have to adhere to this,
and if he goes against these conditions, does his wife have the right to
annul the marriage or not?

Answer: yes, these conditions and similar ones are valid according to the
madhhab of Imaam Ahmad and other scholars among the Sahaabah and Taabi’een,
such as ‘Umar ibn al-Khattaab, ‘Amr ibn al-‘Aas, Shurayh al-Qaadi,
al-Oozaa’i and Ishaaq. According to the madhhab of Maalik, the condition
states that if he marries another wife, (the first wife) has the choice of
what to do, and this is a valid condition. The woman has the right to leave
him in this case. This is similar to the idea in the Madhhab of Imaam Ahmad.
The basis for this is the hadeeth narrated by (al-Bukhaari and Muslim) in
al-Saheehayn from the Prophet (peace and blessings of Allaah be upon him):
‘The most deserving of conditions to be fulfilled are those by means of
which sexual intercourse becomes permissible for you.’ ‘Umar ibn al-Khattaab
said: ‘Rights are in accordance with conditions.’ The Prophet dictated that
the conditions which make sexual intercourse permissible are more deserving
of fulfilment than others. This is the ruling on conditions of this nature.”
[al-Fataawa al-Kubra, part 3, Kitaab al-Nikaah].

The noted scholar Ibn 'Uthaimeen has stated:

It is the right of the woman to make stipulations at the writing of the
marriage contract as she wishes and if these stipulations do not contradict
Islamic law then the husband must fulfill them. For example, that he not
marry a second wife and that if he does to dissolve the first marriage. This
is not a problem. However, a new prospective wife cannot stipulate that the
first wife be divorced before he marries her. I must say however that a
first wife should not make such a stipulation that her husband not marry a
second wife. I fear that if a woman makes this stipulation that the husband
will, if he desires to marry a second woman, simply divorce the first one
straight away [i.e. not even give her consideration] and it would no be to
her benefit. Therefore I advise the woman not to make such a stipulation
because this may be a manner by which the husband is able to follow a good
sunnah.

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