Save

Introduction

In: Hawwa
Authors:
Rajnaara C. Akhtar Associate Professor of Law, Faculty of Business and Law, Leicester De Montfort University School of Law Leicester UK
Georgetown University Doha Qatar

Search for other papers by Rajnaara C. Akhtar in
https://brill.com/search?f_0=author&q_0=Rajnaara+C.+Akhtar
Google Scholar
PubMed
Close
,
Mulki Al-Sharmani Associate Professor of Islamic and Middle Eastern Studies, Faculty of Humanities, University of Helsinki Helsinki Finland

Search for other papers by Mulki Al-Sharmani in
https://brill.com/search?f_0=author&q_0=Mulki+Al-Sharmani
Google Scholar
PubMed
Close
, and
Annelies Moors Professor of Anthropology, Faculty of Social and Behavioral Sciences, University of Amsterdam Amsterdam The Netherlands

Search for other papers by Annelies Moors in
https://brill.com/search?f_0=author&q_0=Annelies+Moors
Google Scholar
PubMed
Close
Free access

Abstract

Muslim marriages are far from homogeneous, and the inherent variability of norms and practices is often missing in the framing of such marriages in Western societies. Marriage and family laws in Muslim-majority contexts are sights of contention, debate, and development. These debates often centre around family as a site of state governance driven by overlapping national and international agendas; gender equality and calls for marriage law reform; and tensions between Islamic jurisprudence, state laws, and lived realities. This introductory article sets the scene for this special issue focussing on the plurality of norms and practices in Muslim marriages within Muslim-majority jurisdictions.

Abstract

Muslim marriages are far from homogeneous, and the inherent variability of norms and practices is often missing in the framing of such marriages in Western societies. Marriage and family laws in Muslim-majority contexts are sights of contention, debate, and development. These debates often centre around family as a site of state governance driven by overlapping national and international agendas; gender equality and calls for marriage law reform; and tensions between Islamic jurisprudence, state laws, and lived realities. This introductory article sets the scene for this special issue focussing on the plurality of norms and practices in Muslim marriages within Muslim-majority jurisdictions.

Muslim marriages have been the focus of public debate in both Muslim-minority and -majority contexts. In Muslim-minority contexts, particularly in Western societies, the topic is often framed in relation to contestations about the increasingly multi-ethnic and multi-religious composition of these societies, about the place of Islam and Muslims in their national and cultural fabrics, and about the growing politics of populism, Islamophobia, and anti-immigration (Berger 2013, Nielsen 2016, Rohe 2009, Shah, Foblets, and Rohe 2014). In such contexts, Muslim marriages are often presented as homogeneous, religiously constituted, and patriarchal. Furthermore, they are depicted in opposition to a civil, state-sanctioned, non-religious, and (often presumed) egalitarian marriage. Notably, the increasing body of anthropological and socio-legal studies on Muslim marriages and family practices in the West has challenged this binary-based understanding (Akhtar 2018, Akhtar, Probert, and Moors 2018, Bredal 2018, Moors 2013, Moors, Akhtar, and Probert 2018, Mustasaari and Al-Sharmani 2018, Sportel 2013).

In Muslim-majority countries, codified family laws, which are based in most countries on Islamic jurisprudence (Welchman, forthcoming), usually regulate Muslim marriages. In these contexts, Muslim marriages have also been the focus of public debate. A number of interrelated issues have been at the heart of these debates – namely, family as a site of state governance that is driven by overlapping national and international agendas; reform of marriage as a pathway to gender equality; and the interplay and tension between Islamic jurisprudence, state laws, and the changing lived realities of Muslim families (Al-Sharmani 2017, Mir-Hosseini et al. 2013, Yassari 2016). A central point of contention when debating marriage has been its recognition and legitimacy, wherein the binary of legal versus religiously licit is produced, and the issue of marriage validity is singularly focused on state registration.

This special issue investigates the plurality of Muslim marriage norms and practices, focusing on seven Muslim-majority countries in North Africa, the Middle East, Southeast Asia, and Central Asia.1 It argues against the homogeneity, essentialism, and ahistorical nature often assumed about Muslim marriages in Western public discourse but also in Muslim-majority contexts, albeit in different forms. The articles shed light on the multiple forms of marriages into which Muslims in the studied contexts enter, as well as their motivations and strategies when doing so, the changes taking place in marriage practices and discourses, and the micro and macro outcomes and implications of these changes. The issue also investigates new non-normative family formation practices that may challenge marriage and the dominant model of the patrilineal family. The issue, additionally, highlights the political, economic, legal, and societal processes and developments that form the influencing context(s) for the studied marriage and family practices. The overall aim is a multidimensional inquiry into Muslim marriages (both as practice and discourse), one that goes beyond the lens of the state to the changing and complex lived realities of intimate relationships and families.

One key theme that runs through the articles is the multiplicity of Muslim marriage practices, the inadequacy of binaries as an analytical framework to understand these practices, and the changing meanings attached to them. For example, in “Fātiḥa Marriage in Morocco: Between Legislation and Judicial Practice,” Miyase Yavuz Altıntaş examines how Moroccan legislators have wrestled with the need to bridge the gap between social reality and state laws, on the one hand, and, on the other, to push for a registered (monogamous) marital union as the sanctioned mainstream marriage model. Altıntaş examines how fātiḥa marriage is regulated in the Moroccan Mudawwana of 2004 and in judicial practice. This type of marriage, which is common in some parts of Morocco, fulfills Islamic juristic conditions for marriage conclusion but not the state requirement for registration. As a result, couples in such unions encounter two challenges: gaining legal recognition for their marriages and establishing paternal affiliation for their children. Analyzing the legislators’ deliberations of articles 16 and 156 of the Mudawwana, which tackle these two problems, Altıntaş shows how they created a legal, albeit circumspect, basis for the recognition of fātiḥa marriages. Judges, for their part, have grappled with the implementation of these new laws, particularly in cases when petitions for recognition of unregistered marriages have resulted in polygamy or child marriage.2 Meanwhile, the Moroccan state’s push for registered marriages was further pursued by establishing an interim period in which all unregistered marriages were to be registered. This period was initially set at five years after the promulgation of the 2004 family law, but it was then extended twice, up to February 2019.

In “Evidently Married: Changing Ambiguities in Creating Family Ties in Morocco,” Annerienke Fioole also problematizes the singular meanings attached to categories such as legal/registered vs. licit/unregistered marriages. Fioole examines through ethnographic research the multiple ways in which Moroccan couples enter intimate unions and the dynamic and fluid ways in which these relationships are recognized and legitimated by couples, their families, and communities. Through illuminating examples, Fioole shows how several societal factors – such as the length of the union, family approval, the birth of children, and the spousal roles and relations assumed by the couples – determine whether a union is considered a real marriage or not. Fioole’s analysis makes the case for a nuanced understanding of the meanings of recognition and legitimacy that are attached to Moroccan marriages, which would go beyond the issue of registration or lack of it and would consider different factors. She also underscores the importance of the historical dimension to Moroccan marriage practices and discourses. By examining the marriage practices of several generations of selected families, she sheds light on how the modern Moroccan state’s active push – through both legislation and public campaigns – for registration has influenced marriage practices and their signification. More couples and their families in contemporary times are opting for registration and are increasingly saying that registration is essential to the way people are supposed to get married. Fioole notes that this change is diminishing the fluid and ambiguous ways in which people can negotiate the legitimacy of their marital unions, and accordingly be protected from the stigma and the possible criminal liability of having extra-marital sexual relations.

In “Regulating, Recognizing, and Religionizing Nike in Kyrgyzstan,” Julie McBrien also questions binary-based assumptions about categories such as civil versus religious marriage and underscores the importance of paying attention to the lived realities of marriage practices and the meanings couples attach to them. McBrien investigates the disconnect between new legal discourse on marriage and the practices on the ground in Kyrgyzstan, a Muslim-majority country in Central Asia which used to be part of the Soviet Union. Drawing on longitudinal ethnographic research, she sheds light on nike (Ar., nikāḥ), the common way for Kyrgyz to get married. It involved concluding an Islamic marriage when couples first got married. Many couples also concluded a civil registered marriage either shortly afterwards or much later. Couples did not see the two in opposition, nor did they associate nike with religious meanings. In 2016, amendments were introduced to the family law aiming at prohibiting forced and child marriages. However, the 2016 laws introduced new language and understandings that reformulated nike as religious, illicit, secretive, associated with dangerous piety, and outside the purview of the state. These meanings, McBrien points out, are completely at odds with how people practice and experience nike on the ground.

In “Battling Marriage Laws: Early Marriage and Youth ‘Piety’ in Indonesia,” Eva F. Nisa sheds light on the multiplicity and complexity of child and early marriage practices in Indonesia. Nisa also highlights the diversity of the actors and the discourses concerned with the issue. The Indonesian family law stipulates a minimum marriageable age of 19 for men and women, amended in 2019 from age 16 for women and 19 for men. The previous age limits opened the door for child marriage, particularly for girls. Furthermore, the law continues to allow a system of “dispensation,” in which case parents are able to apply for the court’s permission for those under the marriageable age to marry. Hence, child marriage had been a central issue debated by state legislators, women’s rights groups, conservative religious and societal groups, and the Islamic feminist movement, including reformist women religious scholars. The latter have been active, establishing the first congress of female religious scholars (ʿulamaʾ) in April 2017, which issued a fatwa against child marriage. A new and equally active conservative group, however, is challenging these Islamic feminist scholar/activists. They are, as Nisa points out, educated middle-class urban youth, who have been advocating for early marriage on social media, as well as practising early marriage themselves, as part of their pursuit of a pious, virtuous life free from sexual transgression. In their advocacy work, these technology-savvy youth have been using language and discourse grounded in Islamic textual tradition, and they often compete successfully with Islamic feminist scholars in attracting online followers. Interestingly, in some cases these youth make the decision to marry young against the wishes of their own families. Nisa concludes that the marriage practices of these youth constitute a new kind of child or early marriage – not the child marriage that has been historically associated with rural areas and poor families, but rather an urban phenomenon, which involves educated, well-resourced young people exercising agency, albeit in promoting and practising a contested form of marriage.

Another central theme investigated in this issue is the interplay of Islamic jurisprudence, state laws, and lived realities. This interplay, as some of the authors in this issue show, can result in shifting understandings of juristic concepts relating to marriage and, more broadly, to family relations. Yet it also reveals some of the tensions and contradictions in contemporary juristic reasoning. This is well illustrated in Ladan Rahbari’s “Temporary Marriages, Mahramiyat, and the Rights of the Child in Shiʿi Adoption: The Legal and Juristic Dilemmas,” in which Rahbari examines how contemporary Jaʿfari jurisprudence interacts with codified family laws in Iran to tackle the changing realities of Iranian families, where children who are not related to the parents are being adopted. She analyzes the juristic arguments of several contemporary Iranian jurists on the question of establishing a mahramiyat kinship tie between the parents and their adopted children of the opposite sex. This form of kinship would prohibit marriageability between the parent and the adopted child. It would also eliminate the juristic requirement for physical segregation between both in order to observe modesty requirements. Rahbari analyzes selected juristic opinions that propose a (sexless) temporary marriage between the father and mother of the parent and the adoptee as a mechanism through which mahramiyat can be established. This is put forward as a solution particularly for cases when establishing “milk kinship,” through breastfeeding the adopted child, is not possible. Rahbari, however, highlights the tensions and limits of this juristic reasoning. She argues that, by focusing solely on the goal of establishing mahramiyat, these jurists could open the door to child abuse. Furthermore, while temporary marriage is allowed in Iranian family law, Rahbari notes that there has been growing societal rejection of it. Rahbari concludes that, while these contemporary juristic engagements are an effort to make Jaʿfari jurisprudence relevant to the lived realities of Iranians, they still fall short of functioning as “social fiqh” – that is, jurisprudence that allows for contextualizing in time and space.

The articles in this issue also speak to a third important theme: how changes in marriage and family practices, as well as in the discourses around them, mirror larger (and, in some cases, contested) political, economic, societal, and legal developments and processes that are underway in the selected national contexts. For instance, in “Contemporary Issues in Marriage Law and Practice in Qatar,” Rajnaara Akhtar investigates the practices of non-legally binding marriages in particular. The modernization of Qatar has meant ethnic diversification of the population and increasing access of Qatari women to higher-level education at home and abroad. One notable impact on marriage practices has been the numbers of Qatari women and men who are marrying non-Qatari partners. While “marrying out” in this way is not a new practice, it was mostly confined in the past to marrying partners from Gulf countries. The current practice of marrying out, Akhtar notes, involves marrying partners from different countries (for the most part, Arab countries). In the context of these macro changes, and in a country where the native population is a minority, marriage laws become part of national and gendered policies to protect perceived threats to Qatari culture and society. As a result, the state has put in place laws regulating (and, in the process, restricting) marriage between Qatari citizens and non-Qatari partners, particularly unions between Qatari women and non-Qatari men. Akhtar shows how the lengthy and often insurmountable administrative process put in place to secure state permission for such marriages leads couples to conclude religious-only unregistered marriages, which are not legally recognized. Akhtar poignantly shows the close linkage between these macro political and economic processes and the micro practices of individuals navigating marriage choices. Akhtar also highlights how individuals are not always passive actors caught up in these larger processes. For some individuals, concluding religious-only marriage becomes a strategy to have some sort of a married life without having to deal with a registered marriage and its legal implications. For divorced mothers, this practice creates the option of entering into a new marriage without risking the loss of their child custody rights, which would certainly be threatened in the case of registered state-sanctioned marriage.

In “Foreign to Palestinian Society? ʿUrfī Marriage, Moral Dangers, and the Colonial Present,” Penny Johnson and Annelies Moors examine unregistered marriage in the occupied Palestinian West Bank and Gaza as a lens through which to reflect on larger political and societal anxieties at a pertinent historical moment in Palestinian society. The strongly worded public warnings by religious authorities in 2005 against ʿurfī marriages, Johnson and Moors argue, need to be seen in the context of a heightened Israeli occupation, forced spatial segregation, economic hardship, and political fragmentation. Johnson and Moors investigate the public discourse on this new form of ʿurfī marriage, drawing on interviews with prominent religious scholars and shariʿa judges, as well as with social workers, and on focus group discussions with male and female university students. In contrast to the earlier conventional Palestinian practice of concluding unregistered marriages, which were publicized and sanctioned by families and communities, these new ʿurfī marriages are depicted as secret, illicit relationships formed by deceitful men and naïve women without the knowledge of their families. This strongly condemned marriage practice registers moral and gendered failures at times of great anxieties and fear of societal disintegration. Johnson and Moors note that all the actors formulating the discourse on these morally dangerous marriages hardly ever report actual practices of new ʿurfī marriage. This affirms, according to the authors, that this is “ʿurfī talk” (similar to rumours), indicative of the challenges of a colonial present rather than of an actual and prevalent marriage practice. Moreover, while religious authorities publicly rejected the validity of ʿurfī marriages, in the very limited number of concrete cases, shariʿa judges continued to use the flexibility of Islamic jurisprudence to legally recognize ʿurfī marriages in order to work towards the most equitable solution in problematic situations faced by young women and men.

Lastly, in “Undoing Patrilineality: New Maternal Families and the Politics of Naming in Turkey,” R. A. Ünal shows how new practices of family formation in Turkey shed light on the changes and tensions in larger social, political, and legal structures and processes taking place in the country. She studies single Turkish mothers who form “maternal families” by either adopting children or parenting their own biological children whom they have outside of marriage. Ünal focuses on the administrative process that these women go through to register their children. She shows how the challenges the women encounter in this process are indicative of larger developments in the country. After the 1980s, the country entered a new era of “neoliberal policies, globalization, and process of European integration,” facilitating new, non-normative family norms and practices such as single mothers having or adopting children on their own, enabled by new laws granting women this right. However, the analysis of the interview data from the selected women shows that the administrative process put in place for providing a legal name to the children still favours the model of a patrilineal family. Producing “new maternal families,” some of these women give the names of their own fathers to their biological children. The article underscores the importance of unpacking the larger national story of historical and political changes and contestations, which in turn are shaping (and restricting) new family practices.

To conclude, this special issue sheds light on the plurality, historicity, and context-specific nature of Muslim marriage norms and practices. It problematizes a state-centred approach to understanding Muslim marriages. Covering geographically diverse contexts, the presented studies demonstrate the analytical limits of binary categories such as registered vs. unregistered, legal vs. licit, civil vs. religious, and official vs. unofficial. The studies show that, for the most part, such categories are inadequate to generate nuanced and insightful understandings of how people marry and form families and what meanings they and other relevant actors in their contexts attach to their unions. The issue also underscores the importance of tracing and explaining change, not only in marriage practices but also in the language and discourses constructed around old and new practices of forming intimate relationships and families. Additionally, the articles show that marriage practices and discourses are never just about that; rather, they are also part of larger communal and national stories of political, economic, legal, and cultural processes, changes, and challenges. Finally, the context of Muslim-majority countries, which was the focus of this issue, is highly significant for it aptly illustrates the heterogeneity and complexity of Muslim marriage norms and practices, even when the codified family laws in most of these countries are drawn from Islamic juristic tradition. It is also in such contexts where it is illuminating to investigate the interplay between Islamic jurisprudence, state laws, and lived realities – a process that takes shape differently in the diverse countries and often with interesting outcomes, including new debates, understandings, and interpretations.

Bibliography

  • Akhtar, Rajnaara. “Modern traditions in Muslim marriage practices: Exploring English narratives.” Oxford Journal of Law and Religion 7 (3) (2018), 427454.

    • Search Google Scholar
    • Export Citation
  • Akhtar, Rajnaara, Rebecca Probert, and Annelies Moors (eds). “Informal Muslim marriages: Regulations and contestations.” Special issue, Oxford Journal of Law and Religion 7 (3) (2018).

    • Search Google Scholar
    • Export Citation
  • Al-Sharmani, Mulki. Gender justice and legal reform in Egypt: Negotiating Muslim family law (Cairo: American University in Cairo Press, 2017).

    • Search Google Scholar
    • Export Citation
  • Berger, Maurice (ed.). Applying shariʻa in the West: Facts, fears and the future of Islamic rules on family relations in the West (Leiden: Leiden University Press, 2013).

    • Search Google Scholar
    • Export Citation
  • Bredal, Anjal. “Contesting the boundaries between civil and religious marriage.” Sociology of Islam 6 (2018), 297315.

  • Mir-Hosseini, Ziba, Kari Vogt, Lena Larsen, and Christian Moe (eds.). Gender and equality in the Muslim family law: Justice and ethics in Islamic legal tradition (London: I. B. Tauris, 2013).

    • Search Google Scholar
    • Export Citation
  • Moors, Annelies. “Unregistered Islamic marriages: Anxieties about sexuality and Islam in the Netherlands.” In Applying shariʻa in the West: Facts, fears and the future of Islamic rules on family relations in the West, ed. Maurice Berger (Leiden: Leiden University Press, 2013), 141164.

    • Search Google Scholar
    • Export Citation
  • Moors, Annelies, Rajnaara Akhtar, and Rebecca Probert (eds.). “Non-state registered marriages.” Special issue, Sociology of Islam 6 (3) (2018).

    • Search Google Scholar
    • Export Citation
  • Mustasaari, Sanna, and Al-Sharmani, Mulki. “Between ‘official’ and ‘unofficial’: Discourses and practices of Muslim marriage conclusion in Finland.” Oxford Journal of Law and Religion 7 (3) (2018), 455478.

    • Search Google Scholar
    • Export Citation
  • Nielsen, Jorgen S. Muslims in Western Europe. 4th edn. (Edinburgh: Edinburgh University Press, 2016).

  • Rohe, Mathias. “Sharia in European context.” In Legal practice and cultural diversity, ed. Ralph Grillo et al. (London: Routledge, 2009), 93114.

    • Search Google Scholar
    • Export Citation
  • Shah, Parkash, Marie-Claire Foblets, and Mathias Rohe (eds.). Family, religion, and law: Cultural encounters in Europe (London: Routledge, 2014).

    • Search Google Scholar
    • Export Citation
  • Sportel, Iris. “‘Because it’s an Islamic marriage’: Conditions upon marriage and after divorce in transnational Dutch-Moroccan and Dutch-Egyptian marriages.” Oñati Socio-Legal Series 3 (6) (2013), 10911110.

    • Search Google Scholar
    • Export Citation
  • Welchman, Lynn. “A historiography of Islamic family law.” In The Oxford handbook of Islamic law, ed. Anver Emon and Ahmed Rumee (Oxford: Oxford University Press, forthcoming), available online: https://eprints.soas.ac.uk/22402/1/Welchman_22402.pdf.

    • Search Google Scholar
    • Export Citation
  • Yassari, Nadjma (ed.). Changing God’s laws: The dynamics of Middle Eastern family law (New York: Routledge, 2016).

1

The contributions to this special issue were first presented at the second international conference of INSRUM (International Network of Scholars Researching Unregistered Marriages) on “Muslim Marriages: Plurality of Norms and Practices,” held on 11–12 April 2019 at the University of Amsterdam. It was organized by Rajnaara Akhtar, Mulki Al-Sharmani, and Annelies Moors, in conjunction with the latter’s ERC advanced grant on “Problematizing ‘Muslim Marriages’: Ambiguities and Contestations.”

2

References to “child marriage” here do not necessarily connote illegal unions but include valid legal marriages under domestic laws of those aged below 18, which is the internationally recognized age of adulthood under the UN Convention on the Rights of the Child 1989. For example, in the UK, a child aged 16 or 17 is able to validly marry if certain marriage formalities are adhered to under the Marriage Act 1949, including consent of parents or guardian under section 3 of the Act.

Content Metrics

All Time Past Year Past 30 Days
Abstract Views 0 0 0
Full Text Views 70 70 1
PDF Views & Downloads 63 63 3