Types of conditions in the marriage contract

 

I am a young man who is engaged and is going to get married. I've heard that at the time of the marriage contract, the wife can stipulate conditions in the contract. My question is: what are the limits of these conditions? What happens if the conditions are broken? Is it possible to give the wife herself the right to divorce (talaaq) if I break these conditions? Is it possible for the condition to be, for example, that I will not take another wife and in the event that I do take another wife she will be divorced from me? 


I hope you can advise and explain this matter in detail. May Allah reward you with good.

Praise be to Allaah.

The basic principle with regard to the
conditions stipulated by both partners in the marriage contract is that it
is a valid condition that must be fulfilled, and it is not permissible to
break it, because the Prophet (blessings and peace of Allah be upon him)
said: “The condition which most deserves to be fulfilled is that by means
of which intimacy becomes permissible for you.” Narrated by al-Bukhaari
(2721) and Muslim (1418). 

Shaykh Ibn ‘Uthaymeen (may Allah have mercy
on him) said: 

The basic principle with regard to
conditions in the marriage contract is that they are valid, unless there is
proof to show that they are not valid. The evidence for that is the general
meaning of the evidence which speaks of fulfilling covenants: 

“O you who believe! Fulfil (your)
obligations”

[al-Maa’idah 5:1]

“And fulfil (every) covenant. Verily, the
covenant will be questioned about”

[al-Isra’ 17:34] 

and in the hadeeth narrated from the
Messenger (blessings and peace of Allah be upon him) it says: “The Muslims
are bound by their conditions, except a condition that forbids what is
permissible or permits what is forbidden.” Narrated by al-Tirmidhi (1352).
And he (blessings and peace of Allah be upon him) said: “Whoever stipulates
a condition that is not in the Book of Allaah it is not valid, even if he
stipulates a hundred times.” Narrated by al-Bukhaari (2155) and Muslim
(1504). 

To sum up, the basic principle with regard
to conditions is that they are permissible and valid, whether they are to do
with marriage, buying and selling, renting, pledges or mortgages, or awqaaf.
The ruling on the conditions that are stipulated in contracts, if they are
valid, is that they must be fulfilled, because of the general meaning of the
verse (interpretation of the meaning):

“O you who believe! Fulfil (your)
obligations”

[al-Maa’idah 5:1].

End quote. 

Al-Sharh al-Mumti’,
5/241 (Egyptian edition). 

For examples of that ,see the answers to
questions number 20757 and
10343 

With regard to the woman stipulating that
the husband should not take a second wife, the opinion of some scholars is
that this condition is permissible, and if the husband breaks it, the wife
has the right to annul the marriage and take her dues in full. 

Ibn Qudaamah (may Allah have mercy on him)
said:

If he stipulates that he will not take her
out of her house or her city, or that he will not travel with her or will
not take another wife, then he is obliged to fulfil that, and if he does not
do so, then she has the right to annul the marriage. This was narrated from
‘Umar, Sa’d ibn Abi Waqqaas and ‘Amr ibn al-‘Aas (may Allah be pleased with
them). End quote. 

Al-Mughni,
9/483 

Shaykh Ibn ‘Uthaymeen (may Allah have mercy
on him) said: 

If she stipulates that he should not take
another wife, this is permissible. Some of the scholars said that it is not
permissible, because it is restricting the husband in something that Allah
has permitted to him, and it is contrary to the Qur'aan in which it says
(interpretation of the meaning): “then marry (other) women of your
choice, two or three, or four” [al-Nisa’ 4:3]. It may be said in
response to that that she has a reason to ask him not to marry another wife
and she is not transgressing against anyone. The husband himself is the one
who is giving up his right; if he has the right to marry more than one, he
is giving it up. So what is to prevent this condition being valid? 

Hence the correct view with regard to this
matter is the view of Imam Ahmad (may Allah have mercy on him), which is
that this condition is valid. End quote. 

Al-Sharh al-Mumti’,
5/243 

It should be noted that if the husband
breaks this condition, his wife does not become divorced as a result of
that, rather she has the right to annul the marriage, and she may either
annul it or give up the condition and accept what her husband has done, and
remain as his wife. 

Shaykh Saalih al-Fawzaan (may Allah preserve
him) said: 

Among other conditions that are valid in
marriage is if she stipulates that he should not take another wife. If he
fulfils the condition (all well and good), otherwise she has the right to
annul the marriage because of the hadeeth, “The condition which most
deserves to be fulfilled is that by means of which intimacy becomes
permissible for you.” Similarly, if she stipulates that he should not
separate her from her children or parents, this condition is valid and if he
breaks it, she has the right to annul the marriage. If she stipulates that
her mahr should be increased or that it should be in a specific currency,
the condition is valid and binding, and he has to fulfil it, and she has the
right of annulment if it is broken. In that case she has the choice and may
decide any time she wants and may annul it whenever she wants, so long as
there is nothing on her part to indicate that she accepts it if she knows
that he has gone against what was stipulated; in that case she would no
longer have the option. 

‘Umar ibn al-Khattaab (may Allah be pleased
with him) said to the one who he ruled was obliged to fulfil what his wife
had stipulated, when the man said, “Divorce us in that case,” ‘Umar said: It
is a must to fulfil the conditions, because of the hadeeth, “The believers
are bound by their conditions.” Al-‘Allaamah Ibn al-Qayyim said: It is
obligatory to fulfil these conditions which are the most deserving of being
fulfilled. This is what is implied by sharee’ah, reason and sound analogy,
if the woman did not agree to become a man's wife except on these
conditions, and if it were not obligatory to fulfil them, then the marriage
contract would not be based on mutual agreement, and it would be making
something obligatory upon her that Allah and His Messenger have not made
obligatory. End quote. 

Al-Mulakhkhas al-Fiqhi
(2/345, 346) 

And Allah knows best.