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News from my home town reports of an Islamic child marriage:

A 34-year-old Melbourne man has cried in court while pleading guilty to illegally marrying a 14-year-old bride in an Islamic wedding last year.

The wedding was illegal and the marriage would not be recognized as valid in Australian law; see Getting married. However, this marriage likely meets the requirements of being a legitimate Islamic wedding (after all, it was performed by an imam, although he has since been "sacked"). Hence:

Question: Is a wedding which is illegal in the host country still Islamically valid?

If so, it would lead to a tangled web. However, a requirement for a Islamically valid marriage might be that it is legal under the host country's laws.

  • This is difficult in practice even if there might be a legal rule. – Medi1Saif Apr 18 '17 at 11:16
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    Relevant: "The age of consent for sexual interactions is 16 years." aifs.gov.au/cfca/publications/age-consent-laws – Mohammad Sakib Arifin Apr 18 '17 at 12:08
  • @MohammadSakibArifin How is that relevant? – G. Bach Apr 18 '17 at 13:06
  • i think that this is being discussed in usul al fiqh and would be categorized as sadd al-dharai (i.e making a halal cinsidered forbidden), – Kilise Apr 18 '17 at 15:42
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    Why do you put quotes around "child", as if it's somehow outlandish to call a 14 year old a child? – Alexander Apr 19 '17 at 2:49
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As per my understanding, the marriage is religiously valid, in the sense that the bride and groom can lawfully have intercourse without incurring the sin of Zina, and the rights of the husband and the wife such as nafqah (maintenance) are now due unless a divorce is given, and the bride can not blamelessly marry another man unless divorce is given. This is because the religious validity of an act depends on Allah's Word and not the rulings of people. This is similar to how, for example, a divorce effected by a non-Muslim court is not religiously valid (islamqa,2).

Islamically, an "underage" marriage is valid as long as the bride and groom have attained puberty before consummation, and both parties are given a choice to annul the marriage before consummation. Puberty defines adulthood in the Islam rather than a numeric age: religious duties are obligatory on a person on reaching puberty, legal rights and burdens are due on them and they have the right to freely manage their property and engage directly in contracts.

Although going against the Australian law would not invalidate the marriage in a religious sense, but it would be blamable to do so because it involves disobeying the ruler and breaking the contract that citizens have with the state (see verdict on obeying laws in the west). Marrying an underage person is not obligatory in Islam, but is a permissible option and the right of the ruler takes precedence over exercising the choice. If the government is disobeyed, it has the right to enforce its laws and contracts through any punishment.

Regarding how this mess may be sorted out:

  • The couple may be Islamically divorced.
  • The couple may emigrate back to their native lands if the marriage is acceptable there.
  • The couple might wait for the bride to reach legal age and then remarry (if that is legal?)
6

Assuming that all requirements (pillars and conditions) of an Islamic marriage were fulfilled, the marriage in question is Islamically valid. Neither a specific age of either bride or groom, nor consideration for public interest (regional legality in this case) are requirements of an Islamic marriage. Therefore Australian law may render the marriage legally void, but not Islamically void.

The corners or pillars (أركان) of marriage in Islam are:

  1. Qualification: Both parties should be qualified for marriage, with no prohibitions (e.g., no prohibition based on religion, relationship, etc.).
  2. Offer and proposal: The wali offers the bride in marriage to the groom.
  3. Acceptance: The groom accepts the marriage proposal.

All three pillars must be in place. The lack of any of these pillars renders the marriage invalid Islamically, and another marriage contract is required for the marriage to continue.

The four conditions of an Islamic marriage are:

  1. Both the bride and groom must be specified publicly.
  2. Both the bride and groom must be pleased with one another.
  3. A qualified wali conducts the marriage on behalf of the bride.
  4. The marriage contract must be public and witnessed by two qualified Muslim men.

If any condition is not fulfilled, this does not automatically invalidate the marriage contract. It is required at this stage to consult a scholar on how to rectify the situation, and to check if another marriage contract is required. For example, the lack of two witnesses may be offset by a publicly announced marriage (according to Malik, Al-Zuhri, and Ibn Taymiyyah).

Consideration of public interest or benefit, known as Maslahah Mursalah (المصلحة المرسلة), refers to worldly matters that are neither mandated (المصالح المعتبرة شرعا) nor forbidden (المصالح الملغاة شرعا) by the religion, and its practice brings benefit. It is permitted to follow considerations of public interest, but such considerations do not void what is Islamically valid. An example of Maslahah Mursalah is the registration of a marriage in court in some countries; since there is nothing in Islam that forbids doing so, it should be done for an Islamic marriage.

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