Nikah 'urfi - Legal Issues

Legal Issues

There are three criteria for defining legal issues in Islamic jurisprudence (fiqh):

• Shari : something that is clearly defined in the shariah.
• 'Urfi : conventional or common tradition. An 'Urfi definition is acceptable to the common people without any scientific or shari precision.
• Ilmi : a definition presented by science.

If the shariah defines something, all Muslims must follow that definition. If the shariah is silent on an issue, Muslims should follow the 'Urfi definition.

The 'Urfi marriage has always existed, but for different reasons.

In the past, it was common among the widows of soldiers who had huge pensions and they did not want to lose it by officially re-marrying. Now, however, it is mostly among university students and young couples who cannot afford the high cost of marriage.

Undocumented 'Urfi marriages are increasingly popular among Egyptian youth. The high cost of marriage forces many young couples to wait several years before they marry. Conservative Egyptian society forbids sex before marriage, so many young people consider the 'Urfi marriage a solution. 'Urfi marriages are conducted by a Muslim cleric in the presence of two witnesses. However, they are not officially registered and are not legally financially binding on the man. Couples married in this way often meet in secret and avoid the expense of renting an apartment. The 'Urfi marriage can be disastrous for the wife in legal terms. If the husband leaves her without granting her a divorce, she had no legal right to seek a divorce since 'Urfi marriage is considered illegal. Her husband could remarry. The wife is in a more difficult position. If the wife remarries, she can be accused of polyandry, which is punishable by seven years in prison in Egypt, or she could remain single for the rest of her life.

The new Egyptian law (passed in 2000) recognizes the woman's right to seek divorce from an 'Urfi marriage. However, the law denies her alimony and child support.

There are also controversial, unofficial "'Urfi" marriages, where a couple signs documents declaring themselves married. The couple does not inform their families of the marriage. Many Egyptian clerics are against this type of 'Urfi marriage calling it a cover for pre-marital sex.

An extreme form of 'Urfi marriage is known as zawag al-'urfi: to give prostitution an Islamic cover, some women enter into secret marriage contracts with their summer visitors. Known in Egypt as zawag al-'urfi, this contract is made without witnesses and typically ends in divorce by summer's end. Most of Egypt's Islamic scholars condemn this use of zawag al-'urfi.