So, you are getting married. Congratulations, and get yourself a prenuptial.

While marriage has been talked about very positively in the Quran, divorce has not only been permitted, but its technical and legal aspects have been discussed in more details than marriage itself, and that makes sense: it is a conflict situation, and that deserved more elaboration. 

But divorce has been look down upon in most Muslim communities - though not by Islam as a religion - as an irresponsible act showing a weak character that prefers personal convenience over the hard work needed to establish a healthy family.

That negative attitude towards divorce unnecessarily deprived many Muslims of a legitimate, and frequently needed, social procedure. Divorce rates thus have been exceptionally low (as low as 2-3%) in the Muslim world for centuries, reflecting the social pressure against divorce rather than how happy marriages are.

But that low divorce rate is changing rapidly. American Muslim divorce rates are very close if not actually equal to divorce rates among non-Muslims. That increase by 10-15 fold in the span of one generation has its own problems.

Divorce was discussed and organized in the Quran 1500 years ago not as an evil thing, but rather as an occasional social necessity.  It was thus to be discussed and regulated. But the focus in the Quran was on:

a) preventing hasty and abusive actions the husband,
b) explicitly mandating mediation and counselling before divorce is finalized,
c) establishing the children's financial rights,
d) providing some security to women against instantaneous eviction from the family residence at a time when husbands were exclusively responsible for providing family residence,
e) the Quran also established the right of women to divorce themselves at will using a clear and simple procedure known as khol'a, a definite revolutionary social concept that most Muslims are not even aware of.

The Quran, however has not provided any rules for asset sharing, or guidelines for financial settlement between spouses.  The contemporary rules were that the wife, as much as the husband, was entitled to trade, to buy and sell, and to have full financial control over her own wealth, inheritance and business.  When divorced, each spouse kept their own property and assets. Also, issues like children custody, alimony, etc, were not discussed much and the prevalent common law was followed.  

Over 2-3 centuries after the Prophet's death more 'common law rules' (or 'عرف'  in Arabic), that did not contradict obvious Quranic principles, crept into Islamic law, which by that time became known as shari'a.  These new laws and rules reflected mostly the common law of those times as understood by different scholars, almost exclusively men.  Those also were the times women's rights took a significant step backward, from the earlier and enlightened phase of Islamic thought process at the time of the Prophet and early civic leaders after him.

At this point it is important to highlight that while common law has frequently been adopted by Islamic legal system, it should never be considered integral to the religion of Islam. Islamic religious rules (Quranic and 'mutawater' Prophetic teachings) are immutable, while common law accepted by different societies in different eras should be freely changed if the circumstance under which they were accepted change.

Over the last century, most of the Muslim countries amended their Family Law to include more rights for women that were not traditionally included in early jurisprudence, such as alimony and mother-favoring custody of children, in some cases granting near exclusive rights to the mothers.  In Egypt, for example, mothers have full custody over boys until age 16, and over the daughters until they reach the age of majority or get married.

These modern changes in family law illustrate that those laws are mostly of civic nature, not a religious one.  Despite these facts, many first generation American-Muslims think of those laws as 'Islamic laws'.  And that is where the problems is.

Having been involved at different levels in many divorce cases among friends over the last few years, I have made several observations.  The most alarming of which is that most of the individuals in those cases have no clue what is mentioned in the Quran about divorce.  That is a shameful thing truly as it all can be contained in 3-4 medium size pages. 

In many of those divorce cases, an argument was frequently made that ' … as Muslims, we are obliged to follow Islamic law when it comes to divorce'.  Advocates of that opinion usually refer - unknowingly - to the 'civic' law that ruled over them or over their parents when they lived in the old motherland.  Many of those laws were not mentioned in the Quran, and are not necessarily followed by any other Muslim country, since each country had it own set of unique family laws. Therefore, those old homeland rules are NOT Islamic.

Another common observation was that the apparently 'wise and pious' suggestion to follow Islamic law was usually made by the party that was most likely to lose financially if the 'American law' is applied.  In other words, advocating the so-called Islamic law for divorce was frequently a gimmick to keep as much money as possible in the hands of the wealthier spouse, be it the husband or the wife.

But considering the high cost of the legal system in the US, the demand (or suggestion) to follow Islamic law does seem to have merits, if it were not for ignorance and possibly the ill-intentions that were behind it.  

And to complicate matters more, there is usually some social pressure within the community to follow 'Islamic law' even though most people do not know what that precisely meant.  If one spouse preferred follow American divorce and family laws they were sometimes made to feel as if they were rejecting of Islam.

My advice for whoever asked for my opinion was always the same: "Get a good lawyer, never negotiated without your lawyer being informed of what you are doing, and avoid court if you can, but do not yield under the assumption that it is 'Haram' or 'Islamically unethical' to settle your divorce in court."

As more women and men of our Muslim-American community get divorced, we need better ways  to educate ourselves regarding the rules of divorce in Islam and the many aspects it does not handle.  We also need to know that marriage in Islam is a contract – a real contract, in which ANY condition can be stipulated.  The spectrum of those stipulations can surprise most of us: from granting women right to divorce on demand, to financial and custody stipulations and all the way to stipulating, that the family must have hired help, nannies, cooks, or in which city to live, etc.

I would like marriage within the Muslim community to take full advantage of the flexibility of Islamic marriage contract by discussing some issues that can save the families a lot of trouble in the future, when one out of every two or three marriages ends in divorce.  The most important item should be: which legal system the couple should follow if divorce process is initiated.  And if they choose 'Islamic law' they need to spell out what that means.  And if they have no clear idea what Islamic law of divorce means, then they should explicitly state the American legal system would be the reference, so it does not as a surprise to any spouse if that ends up being the case.

It is difficult for a couple busy planning their wedding party to consider prenuptial. And that is understandable.  But if our community is wise, it should try to minimize or avoid the acrimony that comes with hostile divorces, and avoid the drainage of resources wasted on lawyers that could otherwise go to secure better future for the divorcees and their children.

Our community is still young in this country.  Many individuals are in the middle of an identity transition, from a Syrian-Muslim, Pakistani-Muslim, Bosnian-Muslim or some other 'hyphenated Muslim' to American-Muslim.  Most of us have not put much thought into what these terms mean. 

That is where most of the friction comes from: unclear terms, and an identity-in-transition.

In my opinion, it could be a great service to our community if the marriage certificates issued by Islamic institutions in the US for American Muslim couples getting married is expanded from the simple contract it is now, to a more developed format that offers a collection of simple choices that may save many couples a lot of heartache and money in the future. That 'expanded' marriage contract could function as a 'default' prenuptial agreement that provides the couple with some idea how things could be handled when married life does hits some road bumps.

If you were to have a prenuptial agreement, as an American Muslim, what would you want to see in it?

Khaled

Part 2: Why can't Muslim women marry non-Muslim men

This is a reply to a comment by Pamela Taylor on my previous posting.  She referred to her posting on the Washington Post On Faith, and to an interview with the Sudanese scholar, Al-Turabi.  

 It grew too long to be a comment, so I ‘promoted it’ to a post status!

Hi Pamela:

Thanks for the link to your article on the Washington Post On Faith blog.  I enjoyed reading it and I do encourage readers of this posting to read it as well.

I agree with most of the thoughts and sentiments you expressed (especially about the lack of association between what I call 'religious concordance' between spouses, and the likelihood of success of marriage.  I disagree with you on a couple of points though.

On principle, I believe in religious freedom, which as you well know, is a principle very strongly endorsed by the Quran.  So, as individuals, we have the right to do what we feel is appropriate for 'us', since we know truly what is in our hearts, which God knows as well. 

Others should not intervene by imposing religious opinions on us, although for all practical purposes, civil and criminal laws in any society have their own constraints that limit freedoms to what is deemed appropriate by the state. For example, a woman may practice polyandry in the USA, but the state would recognize only one marriage and holds her accountable if she officially marries a second husband while still officially married to the first one.  Polygamy, under-age marriage, incest marriage are similar examples in this aspect of social life. 

And to that extent, civil law may impose constraints on what is officially accepted; constraints that may or may not be derived from religious beliefs of the majority. I can accept that only as long as it is clear that the rules are CIVIC RULES and not considered religious rules (i.e., enshrined by God).

The complementary side of that is this: while an individual should be free to decide for themselves what they want to do; they need to be careful about adding their own preferences to the core religious rules.  By that I mean, trying to establish their practice as a “religiously-endorsed practice” for co-coreligionists.

The reason is that I believe a religion, any religion, has to have some minimal sacred core that is immutable. If people do not agree with the core principle, they should be free to start their own religion, but not confuse their own version of the religion with the original.  And other people can choose which one to follow.

For me, that core text is the Quran, and the small collection of Mutawatir Hadith that does not contradict the obvious of the Quran (i.e., Mutawatir  متواتر with non-problematic Matn, i.e., content متن ).  Establishing Aqueeda (i.e., religious creed  عقيدة) based on other texts is tantamount to accepting the authors of those texts as equivalent to God’s..

And the Verse of interest here (5:5) strongly sounds like it is a retraction of an earlier position, or an earlier practice by Muslims.  And if it seems straight forward enough to understand it that way in Arabic (which is my mother tongue), I have difficulty if anyone 'legislates' for an apposing position and then  MAKING THAT POSITION a core religious principle. 

They are certainly free to practice the way they want. And I will defend their right to do that, and not even judge them or judge their intentions.  But I would not think considering their personal view and preference as if it is integral to Islam as a religion is an appropriate thing.

Second, an edict that is genuinely ‘patriarchal’, as you alluded to in your article, should not be accepted as religion under the same logic I presented in the previous paragraph.  I want God to legislate religious rules, not the patriarchs, no matter how scholarly or well-intentioned they were.  But to judge a practice as patriarchal requires that one proves there is no explicit evidence for it in the Quran or Mutawatir Hadith.

And in the situation we are concerned with here, that is not the case, in my humble opinion and in my understanding of the Arabic text of Verse 5:5.

I also read the article you linked to by H  Al-Turabi.  I would like to bring to your attention that the initial segment about the article which talked about the situation of a recently converted woman who was still married to her non-Muslim husband.  That situation has been discussed initially in the first few decades of Islam and at least nine different opinions exited.  The most interesting is by no less of an authority than Ali ibn Abi Taleb, who thought that a convert woman DID NOT have to leave her non--Muslim husband to become a Muslim, and that their marriage was still valid (details can be found in Jurisprudence for Muslim Minorities, By Qaradawi, page 105 – and unfortunately the book is only in Arabic). Interestingly he mentioned Al-Turabi in the book, and supports his opinion on that issue (i.e., the validity and legitimacy of previous marriage of a new 'Muslim convert' woman to a non-Muslim husband).

However, Al-Turabi's opinion on the second situation - that is of an "already Muslim" woman marrying a non-Muslim man - does not reflect the way the Quranic verse 5:5 is worded (although I would be interested in reviewing his research work on the topic if you can provide me with links to the relevant material).

And as such, I would be not comfortable adopting such opinion, with all due respect to his scholarly credentials.

I guess that is what it boils down to: comfort level so we can face God knowing that we followed our hearts after sincere search of the truth.

Khaled 

Why can't Muslim women marry non-Muslim men

In a previous posting I brought up the issue of the difficulty facing many Muslim women finding husbands.  Many Muslim women (and men) are raising the question about the discrepancy between the rules of marriage outside the faith that has - so far - been undisputed amongst Muslims.
I recently received this email from a non-Muslim reader:

"One of the most misunderstood areas in Islam is that of the position of women in the religion. The general perception in the West is that Muslim women are subjugated and almost seen as property. While not all Muslims deal with women as inferior, this is unfortunately true in some segments of the Muslim world and this treatment is supposedly justified by the religion. However, when we look at the basis of the religion, the Quran, we see a very different picture. In the Quran God makes it very clear that men and women are equal.

If this is true then why is it okay for men to Marry outside Muslim and not women ? This is not seen as equal but as lesser or lower than that of a man.

For the record I am an american male in love with a Muslim woman from [an Arab country] and am reading alot to try and understand the cultural differences.    ..DK".

The past blog post Wanna be a bride was meant to raise some discussion about the issue, and it did that only in  a very limited way.  So, I thought that by posting my 'indecisive response' to this gentleman's email I may get the discussion stirred again.  Here is my reply to that reader, with some editing:

Dear DK:
I am a Muslim man who tries to understand the word of God in the Quran believing that the Quran should be the overriding gold standard for Muslim behavior. The accumulated practice legacy of many Islamic cultures and societies that frequently are loaded with non-Quran based cultural and social traditions should not be part of the religion, even when they are not considered wrong. That is the only way we keep religion pure from ethnic and social perspective that may be accepted in one place and at one time, but not in another.
The issue you raised has been a focus of interest for the last couple of months because of social stresses in many Muslim communities in the West and even in some Arab countries, where an increasing number of Muslim women are not getting married, apparently as a result of many Muslim men marrying outside Islam. Some Muslim women now are discussing whether they should be allowed to marry outside the Islamic faith.
The Quran, in my opinion has been fair and equitable to men and women 'on the whole', but there are definite difference and not every issue is 'split 50-50'. Looking at women's advantage in issues related to post-divorce financial support, and support for child care and women's overall financial entitlements, it seems balanced when considering men's advantage in inheritance (especially in son's and daughter's inheritance from a parent).
My point is that fairness does not come from exact equality, but rather from overall equality.
Having said that, it is not very easy to understand the restriction on Muslim women marrying outside the faith. Some people justify it by explaining that it is a result of Islam recognizing other Abrahamic faiths as divinely inspired and legitimate, while Jews and Christians do not have a similar opinion about Islam. And assuming the husband may have stronger influence on family spiritual life, it would be 'safer' for a Christian woman to marry a Muslim man and still keep her faith, than for a Muslim woman to marry a Christian or Jewish man and still keep her faith and her/there children as Muslims.
This argument made more sense in past times, but may not be undisputed in modern time when the balance of power and control in the family is less likely to be male-dominated in many societies. A small minority of Muslim clerics in Lebanon (and I believe in few European countries) have ventured and performed marriage contracts between Muslim women and non-Muslim men based on that logic.
I believe marriage is a personal issue. And individuals have some leeway deciding what they want to do depending on their comfort level. But when I consider the Quranic verse dealing with inter-religious marriages, it is almost impossible to understand it in any way other than it giving an exemption for Muslim men to be able to cross that line (with significant constraints, I may say), but not explicitly including women in that exemption.
I am aware that the situation does not make for an exact 50-50 kind of deal, but the clarity of that Quranic verse makes it difficult for me - personally - to ignore it and go the other way. As a believer, I accept the fact that religion, being a structure decided by God, may have constraints that do not make obvious sense to everyone, everywhere and in every era, but they are still part of the faith. Examples are not restricted only rituals, but also extend to social behavior such as absolute prohibition of gambling (even for fun and in trivial amounts of money), alcohol (even in moderation), and eating pork (except to sustain life).
I am not a clergy and I do not believe in the authority of clergy imposing their opinions on society. I am just a Muslim studying my Book. I would not judge anyone that behaves differently in their personal life, but this issue unfortunately is relevant to social acceptance. If a new couple or family cares about being accepted in a community, sometimes they have to consider how that community thinks and behaves. If the couple do not care for acceptance, then they should be free to do whatever they want.
These links (pro and con) were forwarded to me recently, are are of interest

• “Muslim Women Should NOT Be Able to Marry Non-Muslim Men”: The Goatmilk Debates
• “Muslim Women Should Be Able to Marry Non-Muslim Men”: The Goatmilk Debates #2
• “Muslim women should be able to marry non-Muslim men”: The Goatmilk Debates

And this was my comment on that debate:

".... I am sure that you also noticed that neither side of those debates is talking with a great deal of certainty. That is because the key verse on the topic is an indirect one and talks mainly about Muslim 'men' marrying women of the Book. So, it may boil down to one's comfort level with extrapolation and deduction from that verse.
And while historic legacy favors a particular argument and opinion, support for that argument and opinion should not be based on 'how long has the tradition been going on' but rather on the deduction from the Quranic verse in the context of the established norms of that time. Again, it is the level of 'religious' comfort one has in their own logic for the choice they make that matter.
Whichever way someone chooses, should be something between them and God, not a subject for a new Fatwa. Just my opinion. "

---- end of my email.


I would be interested in knowing what you can add to this discussion.  Are you aware of any scholarly attempts to re-analyse the marriage outside the faith rule in Islamic practices?  Do you have strong opinions one way or the other? what do you think is the better way to even the playing field for me and women?


Hope some of you will share their thoughts.

Khaled

Wanna b a Bride? - On the problem of marriage amongst American Muslim women

What do Muslim Egyptian women and Muslim American women have in common?

Until recently, I would have answered: very little other than their religion.  But over the last couple of years I have become more aware of another thing in common: a rapidly growing problem of finding a suitable husband.  The problem is no laughing matter, and it threatens to be a very ominous threat to social structure, both in Egypt (and likely many other Arab countries) as well as in the American Muslim communities.

The title of the post is borrowed from a hilarious series of blog-posts turned into a book by a talented 30-year-old Egyptian bachelorette pharmacist who decided to go public with her 'adventures' while looking for a husband (or waiting for a husband to find her).  If you can read Arabic and understand Egyptian dialect, that blog and book will give you hours of thoughtful fun that will make you laugh out loud.  Sorry, but it is an Arabic only site, although the blog and book are being translated into - of all languages - Italian!!  Do not even ask me why.

But this blog post is not about the problem in Egypt.  And I have been contemplating writing about some marriage and divorce problems in the American Muslim community for some time. Today I want to talk only about marriage - or lack there of - amongst highly eligible American Muslim women.

Getting married has rarely ever been an easy process for both men and women in Muslim minority communities.  But more recently the number of American Muslim women getting married has dropped significantly below the number of Muslim men getting married. Anyone that is involved in 'matrimonial activities' can tell you that matrimonial events tend to have 6-8 times as many women as men.

Two obvious factors have perpetuated the problem. One is of a religious nature, and the other is of a social/cultural nature.

Islamically, and if the Quran is understood at face value, Muslim men are allowed to marry a 'believer' woman outside the Islamic faith.  This usually means marrying a Jewish or Christian woman.  There are subtle constraints but, in general, such marriages are not looked down upon within the Muslim community.

On the other hand, Muslim women are not supposed to marry outside the Islamic faith.  The Quran (5:5) gives an explicit permission for Muslim men, without mentioning Muslim women.  That 'prohibition by omission' has been the undisputed norm in Muslim societies since the early days of Islam. 

I am fully aware of the reasoning behind the distinction between the case for men and women, and I do not see that the Quranic verse that discusses that issue tolerant to any other interpretation.  But I also understand that the permission given to Muslim men to marry outside the faith is not an unrestrained permission.  It is even more constrained when the exercise of such permission leads to serious harm to other Muslims, above all Muslim women in the same society.

But marrying outside the faith is not the only reason for the problem.  Another reason, that I personally believe to be a more sinister one, is the tendency of many Muslim American men to marry a Muslim woman from 'the old mother land'.

I do not really understand why that is happening, and I have few guesses:
- Larger extended family in the old country for those that want to marry within the extended family only (a tradition in some conservative societies).
- 'Mother-in-law-to-be' favors marrying a girl from the old country believing that she would make a better daughter-in-law.
- Some conservative men believe that a 'good girl' from the old country is more 'pious, pure, and – more importantly - obedient' than an American born and raise Muslim girl.
- And finally, and as a woman friend once put it, Muslim young men in American societies tend to be less mature intellectually and socially than American Muslim young women of similar age, social status and education.  Thus they feel threatened by their female counter parts, and want to seek a woman that does not make them feel threatened.

Regardless of the reason, the abundance of very well qualified American Muslim young women who cannot find a suitable husband is a serious problem.  The worst part is that the religious and social implications of that problem are not even discussed frequently enough.

This definitely is not a problem that harms only women in the longterm, but because only women appear to be adversely affected now community leadership, mostly older immigrant men, does not seem to be interested in tackling it or even shedding light on it.

A recent article in the Washington Post covered that topic, but the conclusions were slanted in a direction that I do not agree with.  Still, I am happy that some Muslims activists are bringing  the issue up, and are doing something about it. 

Their conclusions are unfortunately difficult of me to swallow.  They actually argue that since the Quran did not explicitly prohibit Muslim women from marrying out side the faith, and since permitting men to do that leads to the current problem for Muslim women, the answers to the problem should be to allow Muslim women to marry outside the faith, i.e., Muslim woman can marry a Christian or Jewish man.

I tend to support a different approach to solving the problem.  It is a well know rule in Islamic jurisprudence that restricting or prohibiting the exercise of what is permitted and lawful is allowed if it leads to harm.  Many Muslim countries, for example, have strong restrictions on polygamy – and for very good reasons.

Some Islamic scholars have actually suggested that marrying outside the community (Islamic American community in this case) should be forbidden as it leads to an obvious harm to half the society: Muslim American women.  Of course in a free society, no one can 'force' Muslim men to restrict their 'lawful rights', but like in many other cases (e.g., polygamy), strongly-held social pressures have effectively restricted the exercise of polygamy in societies that have not yet had legal restriction on it.

Traditional religious and societal leadership in American Muslim communities tend to be sluggish and scared of change.   They are more comfortable sweeping problems under the carpet, and would rather talk about generalities than offer a specific solution to a specific problem.  That attitude applies to a wide range of religious, political and social contemporary issues relevant to the community.  I do not have much expectation from them anymore.

It is difficult to say if the threat of revolt by Muslim American younger women to adopt alternative jurisprudence opinions is conceivable.  And, I do not personally agree with the alternative jurisprudence opinion expressed in the WP article mentioned above.  But I also realize that nothing short of revolt by American Muslim women can wake up our intellectually stagnant leadership.

Khaled

As usual, short comments and opinion are welcomed and can be made anonymously.  But if you feel strongly about that issue, and regardless of which side you are on, please put your thoughts in a short posting format and email to khaledhamid.ol@gmail.com.  If it is respectful and intelligently-argued, I will post it as a full posting.  Your anonymity is guaranteed if you want.  May be we can have a serious conversation about this topic.