Gender and Sexuality
Written by: Mohammad Fadel
It is important to keep in mind, however, that because Islamic law understands the marital relationship to be contractual, the parties to a marriage contract can, and do, vary these rules to suit their own needs. For example, it is not unusual for women to include terms in their marriage contracts that would protect them from the risk that a husband would marry a second woman. A woman could also write into the marriage contract the right to divorce or a contractual stipulation regarding the location of the household. It is also important to understand that not all moral norms governing relationships between spouses are reflected as legal rules. Values such as love, generosity, and mutual support, are all normative elements of the Islamic conception of marriage. The Quran, for example, states that among God's signs is that "He made for you mates from yourselves that you may find tranquility with them, and caused love and compassion to arise between you" (Al-Rum, 30:21). Such values do not necessarily form part of the legal system's regulation of the parties' rights within marriage or upon its dissolution.
Islamic family law is best understood as establishing a minimum baseline regarding family life that parties, within certain boundaries, are free to modify. Because of the flexibility of Islamic family law, Muslim countries in the 20th century have engaged in a wide variety of family law reform projects with the intent of furthering greater equality within the traditional heterosexual family by, among other things, restricting polygyny and reducing the male's right to initiate unilateral divorces. Many groups of Muslims continue to advocate for further reforms of the Islamic family law codes that are applied in the Muslim world and one may reasonably expect that further reforms in the direction of greater gender equality will be made in the Muslim world in the foreseeable future.
English-speaking Muslims typically do not apply Islamic family law rigorously in the regulation of their marriages and divorces. Accordingly, most disputes involving Islamic family in the North American context, for example, raise the question of whether the husband's obligation to pay his wife a dowry (mahr or sadaq) as specified in their Islamic marriage contract is enforceable as an ordinary civil obligation. While it is customary for a Muslim couple to enter into an Islamically-recognized marriage contract, it would be unusual for the couple not to register their marriage civilly. Well-established North American Islamic centers typically refuse to prepare an Islamic marriage contract for a couple until they first produce a civil marriage license or evidence of a valid marriage under civil law.