Discussion on the difference between the conditions of the marriage contract and the conditions within it.
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The Shaykh : In the name of Allah, the Most Gracious, the Most Merciful. We have previously stated that the marriage contract has conditions, and it has conditions within it, and that the difference between them is from two or three angles. The first difference, O Abdullah, is compensation?
The questioner : The first difference is that the conditions of the marriage contract are in the substance of the contract. The conditions of the marriage contract... and the conditions within the marriage contract, we say, do not determine the validity of the contract, whereas the conditions within the marriage contract do not determine it...
The Shaykh : That is, the conditions of the marriage contract determine the validity of the contracts.
The questioner : Yes.
The Shaykh : And the conditions within the marriage contract result in the binding nature of the contract. Is this difference clear? It means that if a condition of the marriage contract is missing, the marriage is invalid. If a condition within the marriage contract is missing, the marriage remains valid, but its binding nature depends on it. This means that the person for whom this condition was stipulated may keep the marriage if he wishes, or annul the marriage if he wishes. An example of this: a woman stipulated to her husband that he should house her in a villa instead of an apartment. Is this a condition of the marriage or a condition within the marriage? It is a condition within the marriage. The man married her and had intercourse with her, but he did not house her in a villa. Do we say the marriage is invalid? No, but we say its binding nature depends on it. The woman has the choice; if she wishes, she stays with him, and if she wishes, she annuls the contract. This is one point. What is the second difference?
The questioner : Conditions... established by the Lawgiver... established by the contracting parties, or...
The Shaykh : Yes, the conditions of the marriage contract are established by the Lawgiver, meaning that Allah established these conditions either in the Book or the Sunnah. The conditions within the marriage contract are established by the contracting parties or one of them, meaning that if they had not stipulated them, they would not have become conditions.
The questioner : The conditions of the marriage contract cannot be waived, whereas the conditions within the marriage contract can be waived.
The Shaykh : The conditions of the marriage contract cannot be overlooked or waived. For example, if a woman says, "I want to marry myself; I am satisfied with the husband and there is no need for my father to contract the marriage," we say this is not possible, because the guardian is a condition stipulated by the Lawgiver, and his presence is necessary. What about the conditions within the marriage contract? They can be waived by the person for whom they are stipulated. So, in the example we mentioned earlier, the wife can waive the condition she stipulated for the husband to house her in a villa instead of an apartment. Is that clear? Yes.
The questioner : The conditions of the marriage contract are fundamental...
The Shaykh : That is, the conditions within the marriage contract are not established except by stipulation, whereas the conditions of the marriage contract are established even without stipulation. For example, if a man proposes to a woman, we do not say that her guardian will not marry her to him if she stipulated it; rather, we say that her guardian will not marry her to him except if she stipulated it or not.
The questioner : ... .
The Shaykh : Yes, all the conditions of the marriage contract are valid and considered, because they are established by whom?
The questioner : The Lawgiver.
The Shaykh : Established by the Lawgiver. As for the conditions within the marriage contract, some are valid and some are defective. There are conditions that if the contracting party stipulates them, they are not valid. These differences are clear.
The questioner : The first difference is that the conditions of the marriage contract are in the substance of the contract. The conditions of the marriage contract... and the conditions within the marriage contract, we say, do not determine the validity of the contract, whereas the conditions within the marriage contract do not determine it...
The Shaykh : That is, the conditions of the marriage contract determine the validity of the contracts.
The questioner : Yes.
The Shaykh : And the conditions within the marriage contract result in the binding nature of the contract. Is this difference clear? It means that if a condition of the marriage contract is missing, the marriage is invalid. If a condition within the marriage contract is missing, the marriage remains valid, but its binding nature depends on it. This means that the person for whom this condition was stipulated may keep the marriage if he wishes, or annul the marriage if he wishes. An example of this: a woman stipulated to her husband that he should house her in a villa instead of an apartment. Is this a condition of the marriage or a condition within the marriage? It is a condition within the marriage. The man married her and had intercourse with her, but he did not house her in a villa. Do we say the marriage is invalid? No, but we say its binding nature depends on it. The woman has the choice; if she wishes, she stays with him, and if she wishes, she annuls the contract. This is one point. What is the second difference?
The questioner : Conditions... established by the Lawgiver... established by the contracting parties, or...
The Shaykh : Yes, the conditions of the marriage contract are established by the Lawgiver, meaning that Allah established these conditions either in the Book or the Sunnah. The conditions within the marriage contract are established by the contracting parties or one of them, meaning that if they had not stipulated them, they would not have become conditions.
The questioner : The conditions of the marriage contract cannot be waived, whereas the conditions within the marriage contract can be waived.
The Shaykh : The conditions of the marriage contract cannot be overlooked or waived. For example, if a woman says, "I want to marry myself; I am satisfied with the husband and there is no need for my father to contract the marriage," we say this is not possible, because the guardian is a condition stipulated by the Lawgiver, and his presence is necessary. What about the conditions within the marriage contract? They can be waived by the person for whom they are stipulated. So, in the example we mentioned earlier, the wife can waive the condition she stipulated for the husband to house her in a villa instead of an apartment. Is that clear? Yes.
The questioner : The conditions of the marriage contract are fundamental...
The Shaykh : That is, the conditions within the marriage contract are not established except by stipulation, whereas the conditions of the marriage contract are established even without stipulation. For example, if a man proposes to a woman, we do not say that her guardian will not marry her to him if she stipulated it; rather, we say that her guardian will not marry her to him except if she stipulated it or not.
The questioner : ... .
The Shaykh : Yes, all the conditions of the marriage contract are valid and considered, because they are established by whom?
The questioner : The Lawgiver.
The Shaykh : Established by the Lawgiver. As for the conditions within the marriage contract, some are valid and some are defective. There are conditions that if the contracting party stipulates them, they are not valid. These differences are clear.