The marriage contract in the SharT`ah and in the Ahwäl Shakhsiyyah laws of Egypt and Morocco : A comparative study. Dawoud Sudqi El Alami Department of Arabic and Islamic Studies University of Glasgow Thesis submitted for the degree of Ph.D. in the Faculty of Arts at the University of Glasgow. March 1990. Q Dawoud Sudqi EI Alami 1990 I I 16 &. A.%jJ Z"AjJ CLU "1 1, 0. to my mother My thanks are due first of all to Professor John Mattock, my supervisor, who has helped and guided me through all the stages of this work and who was always prepared to listen and to advise. I am grateful to Professor John Davis for his patient support, his good friendship and his good advice. Mrs Doreen Hinchcliffe has read parts of the text and has made some very helpful comments for which I thank her. I should also thank the Libraries of the University of Glasgow, the University of Kent and the School of Oriental and African Studies in London. I am grateful to His Highness Prince Ahmad b. Turki al-Sudairy for whom I formerly had the honour of working and who sponsored and encouraged me during the difficult early stages of this work. I would like to express my gratitude to my teachers in Cairo who were my early models : to Professor Yusuf Qasim, Head of the Department of Shari ah at Cairo University whose chance word of praise to a student under examination, one of many-long forgotton, gave that student the courage to devote himself to the study of Shari ah; to Professor Jamil al-Sharqawi, former Dean of the Faculty of Law at Cairo University; to Dr. Ibrahim Nasr al-Din, Doctor of Political Science at the Institute of African Studies in the Faculty of Economics and Political Science at Cairo University whose refusal to compromise gave me motivation; to Dr Nazih al-Sadiq Mahdi, Doctor in Civil Law at Cairo University, who helped and encouraged me in my early studies. I would like to thank Dr. Muhammad Asfour, the Lawyer, Doctor in Administrative Law for his guidance and support. I am grateful also to Mr. Muhammad Abu Fadl al-Gezawi who treated me as a son and helped me in my early career as a lawyer and who has always shown interest and encouraged me in my research. I wish to thank Mrs Amal Shukri, of the Cairo University Library. I am grateful also to Muhammad Qurayim, the head of the Library of the Faculty of Usul al-Fiqh at al- Azhar whose help in obtaining references has been invaluable. 3 I would like to thank Dr. Mustapha Al-Alami who teaches Comparative Commercial Law in the Law Faculty at the University of Rabat, a colleague and friend who has helped me to obtain reference works on Moroccan Law. I want to thank my wife. I want to thank also a very dear friend who prefers to remain nameless whose efforts in obtaining and sending material from Egypt in the earlier stages were vital to the work, and who is a constant support. I am grateful to all the members of my family and to my wife's family for their unfailing support. Finally I would like to acknowledge my father, Sudqi Naman El Alami, who passed away in October 1988. He was a lawyer and my first inspiration. He graduated from the University of Montpelier in the 1920's as one of the first Arab students to graduate from a European university. It was his wish that one of his sons should become a lawyer after him ;I regret only that he did not see the completion of this work. La aLUjg 1L .. L9 g.:ý g 4 4'. Contents Abstract 11 ............... ............................. Notes transliteration 12 on .............................. Glossary 13 .......................... .............. Note the Hanaf jurists 30 on names of some of ............ Introduction 31 ......................................... Part One. The Establishing of the Contract of Marriage 36 ........................................ Chapter One. The Prelude to the Contract of Marriage - hi h 37 ........................................... Conditions for the khitbah 38 propriety of .................. Position of the Egyptian and Moroccan Ahwäl Shakhsiyyah to khitbah 44 with regard ............................... Position the Egyptian Ahwäl Shakhsiyyah 45 of ... ... Position the Moroccan Mudawwanah 47 of ............. Notes to Chapter One 48 ................................. 5 Chapter Two. Conditions for the Establishment of the Contract Marriage 52 of ..................................... .... The form of the contract and the wording by it be 52 which may concluded ......................... Conditions the form the 55 with regard to of contract ...... The position of the Egyptian and Moroccan Ahwäl ShakhsTyyah the form the 66 with regard to of contract ... Conditions to the the 67 with regard subject of contract .... Muharrami `alä 67 t min al-nisä' sifat al-ta'bid ........... Muharramät `alä 8 0 min al-nisä' sifat al-ta'gTt ............. The position of the Egyptian and Moroccan Ahwäl ShakhsTyyah to 85 with regard muharramät min al-nisä' ................. Case 86 study concerning riddah .......................... Wiläyah 91 ........................................... Wiläyah ijbäriyyah f al-zawäj ...................... .93 Wiläyah ikhtiyäriyyah 99 ............................... The position of the Egyptian and Moroccan Ahwäl ShakhsTyyah to 101 with regard wiläyah .............................. The position of the Egyptian and Moroccan Ahwäl Shakhsiyyah to `adl 103 with regard .................................. The position of the Egyptian and Moroccan Ahwäl ShakhpTyyah to the insane 104 with regard minors and .................. Wikälah in 108 marriage.................................. 6 The position of the Egyptian and Moroccan Ahwal in 110 Shakhsiyyah with regard to wikälah marriage ...... Mahr 111 .............................................. The position of the Egyptian Ahwäl Shakhsiyyah to 118 with regard mahr ................................ The position of the Moroccan Mudawwanah to 119 with regard mahr ............................... Shahädah 122 ........ .................................. The position of the Egyptian Abwäl Shakhpiyyah to 126 with regard shahädah ............................ The position of the Moroccan Mudawwanah with toshahädah 129 regard ................................. Kafä'ah 132 .......... ................................. The factors which are taken into consideration in kafä'ah 133 ......................................... The position of the Egyptian and Moroccan Atiwäl Shakhsiyyah to kafä'ah 139 with regard .... ............. Notes to Chapter Two 141 ................................ 7 Part Two. The Consequences of the Contract of Marriage ................................ 170 Chapter One. The Consequences of the Valid Contract... 171 Mutual 172 rights ...................................... The the husband to the 181 rights of with regard wife ...... The the to the husband '. 185 rights of wife with regard .... The position of the Egyptian and Moroccan Ahwäl Shakhsiyyah with regard to the rights which result from the 201 contract .................................. The position of the Egyptian Ahwäl ShakhsTyyah to jinsryyah 201 with regard mu`äsharah ................. Case 203 study concerning non-consummation of marriage .. The position of the Moroccan Mudawwanah with to jinsTyyah 205 regard mu`äsharah .......... .......... The position of the Egyptian Ahwal Shakhýiyyah with to 206 regard nasab and wiräthah ............ ........... Case 207 study concerning nasab ......................... Case study concerning establishment of nasab and to 209 entitlement wiräthah ............................. The position of the Moroccan Mudawwanah with regard to 213 nasab and wirathah ............................... The position of the Egyptian Ahw5l Shakhsiyyah with regard to ayb ...................................... 214 8 Case divorce 217 study concerning on grounds of`ayb ...... The position of the Moroccan Mudawwanah with to'ayb 221 regard ...................................... The position of the Egyptian Ahwäl ShakhpTyyah to tä`ah 222 with regard ......: ........................ Case täcah 225 study concerning ......................... The position of the Moroccan Mudawwanah with regard totä`ah 229 ............................................ The position of the Egyptian Aliwäl ShakhsTyyah to 230 with regard nafaqah .............................. Case 234 study concerning nafaqah ....................... Case study concerning compensatory nafaqah for a divorced 237 woman .................................... The position of the Moroccan Mudawwanah with regard to 239 nafaqah ........................................ The position of the Egyptian Ahwäl Shakhsiyyah with regard to darar 240 ........................................... Case Barar 241 study concerning ......................... Case 247 study concerning ghaybah ....................... The position of the Moroccan Mudawwanah with regard to 250 ghaybah ....................................... The position of the Egyptian Ahwäl Shakhfiyyah with to darar due to 251 regard polygamy, qasm, and polygamy. .. 9 Case study concerning divorce on grounds of Barar due to polygamy .......................................... 255 Case study concerning divorce on grounds of Barar due to polygamy .......................................... 259 The position of the Moroccan Mudawwanah with regard to darar due to 261 polygamy, qasm, and polygamy ........... Notes to Chapter One ................................. 262 Chapter Two. The Consequences of the invalid contract. 276 Provisions in invalid 276 respect of contracts ............. The position of the Egyptian Ahwäl