Thursday, July 7, 2022 - 8 Dhu-al-Hijjah 1443

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Can a woman get married without her (wali) guardian’s approval?

I married a 37 year old Emirati woman who was previously married. The marriage contract was conducted at the lawyer's office in the presence of witnesses. It included the payment of a dowry and met the rest of the conditions. The bride's wali did not consent to the marriage because of my different nationality. After we concluded the marriage contract, I filed a signature verification lawsuit and the court issued its decision [in my favor]. I then notarized the court verdict at the Ministry of Justice, the Ministry of Foreign Affairs and the UAE embassy. Afterwards, I publicized the marriage to everyone even to my wife's family. However, her father resorted to the courts in the United Arab Emirates claiming the illegitimacy of the marriage because the contract did not fulfill the condition of the presence of the bride's wali. Is the marriage lawful? What is the stance of Islamic law on this?

Answer


Wilaya (guardianship) in marriage is a kind of protection instituted by Islamic law to secure the interest of a woman's rights at a time when she is starting an important phase in her life. Islamic law established the principles of guardianship on the basis of compassion, support, and assistance to women. Imam Abu Hanifa maintained that it is not obligatory for a sane, adult woman to have a guardian. Based on this, she is entitled to conduct her own marriage contract whether she was previously married or a virgin and restricted the wilaya exclusively to prepubescent females. On the other hand, he maintained that it is a deputation, not guardianship, for the sane, adult female.


Egyptian law follows the Hanafi opinion that entitles an adult female to conduct her marriage which is considered valid if it is based on kafa`a (marrying a suitable match) and if she receives mahr al-mithl (the amount typically received as marriage payments by similar brides).
Islamic law considers puberty a sign of the beginning of intellectual maturity. Moreover, it considers puberty contingent upon reaching a certain age in the absence of other indicators of puberty.

Scholarly opinions on determining the age of puberty

Shaif'i and Hanbali scholars

Shafi'i and Hanbali scholars and Abu Yusuf and Mohammed maintained that the age of puberty is 15 lunar years for both males and females.

Maliki scholars

Maliki scholars maintained that puberty is reached at the age of 18; there are other opinions in the Maliki school determining the age of puberty at the age of 15, 19 and 17.

Abu Hanifa

Abu Hanifa determined the age of puberty at 18 for males and 17 for females.

Egyptian Law

Egyptian law has organized litigation procedures in personal affairs cases through issuing the law no. 56/1923. The court is to reject cases where the wife's age is less than 16 and the husband's age is less than 18 at the time of conducting the marriage except with the wali's permission. It later enacted Decree law no. 78/1931 in correspondence to the preceding law. Article no. 5\99 of this law was amended in law no. 88/1951 which determined the age of puberty according to the Hijri calendar. Finally, law no. 1/2000 determined the age of puberty according to the Gregorian Calendar.

The ruling

The marriage [mentioned in the question] is valid if it is established on kafa`a and the wife has received mahr al-mithl.
The above answers the question and God the Almighty knows best.