Sunday, December 14, 2008

Mutaa and Other Nontraditional Islamic Marriages

The Mutaa, Misyar, and Urfi marriages are becoming more common arrangements in the Muslim world. These arrangements pose legal and social challenges that different societies are developing different strategies to cope with. I am not aware of studies that examine these forms practice in the United States. There is anecdotal evidence that they are being practiced. In Sex and Reason, Judge Richard Posner mentioned in passing Islamic practices such as the Mutaa and polygamous marriages and I am not aware of extensive legal studies of Muslim practices in America.

While I am not aware of legal cases making arguments for the validity of these arrangements as marriages in a court of law, it does not seem that any of them would qualify as marriages in the common American law understanding of a legal marriage.
Family law is a matter of state law. This is a reason cousins can marry each other in some states but not in others. The age of consent for sexual activity and marriage is different to from state to state as well.

Valid Marriage
The general rule is that a marriage which is valid where it was held is valid everywhere. If an immigrant from Yemen or Poland comes to live in the US, they don't have to marry their spouse again. The exception to this rule is if the marriage is against public policy then it would not be recognized. An example is someone's marriage to an 11 year old child. Such a marriage would probably be held invalid in all the states.
In the Muslim world, three forms of marriage, the Mutaa/pleasure or temporary marriage [an excellent book on the subject is Shahla Haeri's Law of Desire], Misyar/traveler's marriage, and Urfi/unregistered marriage.

A Tripod of Unconventional Marriages
Mutaa marriage is a marriage that is recognized by the Shia Muslims only- it requires no witnesses and has a set expiration date. The nontraditional marriages recognized by Sunni scholars include the Misyar and the Urfi which unlike the Mutaa marriage require witnesses and have no set expiration date. In a Misyar/travelers marriage as the name hints, the couple travels to meet each other and do not live with each other as husbands and wives usually do. Additionally, a Misyar husband is not required to support his fellow traveler wife.

URFI Marriage
An Urfi marriage, on the other hand, is a marriage that is witnessed by two witnesses and has no expiry but is unregistered with the state and thus not declared to the world. An Urfi marriage is officiated by a clergy and a copy of the marriage contract is given to both parties but not registered with the state. The relationship is usually kept secret due to family resistance or the presence of another wife whom the husband wishes to keep in the dark.

Least Common Denominator: Women's Fewer Rights, Fewer Protections
From an Islamic law viewpoint, what the three forms of marriage have in common is one important thing - the three of them provide fewer rights and protections to the wives and any children born into the arrangement than an ordinary Muslim marriage do. From an American law standpoint, these three marriage forms lack critical requirements of a valid marriage. The Mutaa has an expiration date and no witnesses. It is usually done in secret. For these reasons it has no chance whatsoever for qualifying as an American legal marriage- not even a common law one. The second form, the Misyar, is trickier. The couple has no intention of living together as husband and wife or supporting each other financially/ provides maintenance. Urfi is undocumented and usually secret. In an Urfi marriage there is the living together element, support, and permanence element but it is kept secret and unregistered. It would not be deemed as common law marriage in states that recognize common law marriage since Urfi is intentionally unregistered marriage to keep knowledge of it from the world. Common law marriage requires that the couple act as husband and wife in public and present themselves as husband and wife. In Urfi marriage the intent behind not registering it is hiding it from the world

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