Stipulations in Marriage Contract
Hadith – Abu Dawud and AI-Hakim on the authority of Abi hurairah, Sahih Al- Jami AI-Sayhir, (No. 6714)
Regarding contracts the Prophet (Peace be upon him) said: The rights are decided by the conditions.
Hadith – Malik’s Muwatta Book 28, Number 28.6.16
Yahya related to me from Malik that he had heard that Said ibn al-Musayyab was asked about a woman who made a stipulation on her husband not to take her away from her town. Said ibn al-Musayyab said, “He takes her away if he wishes.”
Malik said, “The custom among us is that when a man marries a woman, and he makes a condition in the marriage contract that he will not marry after her or take a concubine, it means nothing unless there is an oath of divorce or setting-free attached to it. Then it is obliged and required of him.”
Ibn Qudaamah (may Allaah have mercy on him) said in his book Al-Mughni:
“If he married her on the condition that he should not make her move from her house or her city, then this condition is valid, because it was reported that the Prophet May Allah’s peace and blessings be upon him said: ‘The most deserving of conditions to be fulfilled are those by means of which sexual intercourse becomes permissible for you.’ If he married her on the condition that he will not marry another wife, then she has the right to leave him if he does take another wife.” In conclusion, then, the conditions of the marriage contract are divided into three types, one of which must be adhered to, which is of benefit to the wife, such as her being able to stipulate that he cannot make her move from her house or city, or travel with him, or take another wife or a concubine. He has to adhere to these conditions, and if he does not, then she has the right to annul the marriage.” [Al-Mughni by Ibn Qudaamah, part 7, Kitaab al-Nikaah]
Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) was asked this question and he replied in Al-Fataawa al-Kubra:
“Question: a man married a woman and she stipulated that he should not take another wife or make her move from her house, and that she could stay with her mother, so he married her on this basis. Does he have to adhere to this, and if he goes against these conditions, does his wife have the right to annul the marriage or not?
Answer: yes, these conditions and similar ones are valid according to the madhhab of Imaam Ahmad and other scholars among the Sahaabah and Taabi’een, such as ‘Umar ibn al-Khattaab, ‘Amr ibn al-‘Aas, Shurayh al-Qaadi, al-Oozaa’i and Ishaaq. According to the madhhab of Maalik, the condition states that if he marries another wife, (the first wife) has the choice of what to do, and this is a valid condition. The woman has the right to leave him in this case. This is similar to the idea in the Madhhab of Imaam Ahmad. The basis for this is the hadeeth narrated by (al-Bukhaari and Muslim) in al-Saheehayn from the Prophet (peace and blessings of Allaah be upon him): ‘The most deserving of conditions to be fulfilled are those by means of which sexual intercourse becomes permissible for you.’ ‘Umar ibn al-Khattaab said: ‘Rights are in accordance with conditions.’ The Prophet May Allah’s peace and blessings be upon him dictated that the conditions which make sexual intercourse permissible are more deserving of fulfilment than others. This is the ruling on conditions of this nature.” [al-Fataawa al-Kubra, part 3, Kitaab al-Nikaah].
The noted scholar Ibn ‘Uthaimeen has stated:
It is the right of the woman to make stipulations at the writing of the marriage contract as she wishes and if these stipulations do not contradict Islamic law then the husband must fulfill them. For example, that he not marry a second wife and that if he does to dissolve the first marriage. This is not a problem. However, a new prospective wife cannot stipulate that the first wife be divorced before he marries her. I must say however that a first wife should not make such a stipulation that her husband not marry a second wife. I fear that if a woman makes this stipulation that the husband will, if he desires to marry a second woman, simply divorce the first one straight away [i.e. not even give her consideration] and it would no be to her benefit. Therefore I advise the woman not to make such a stipulation because this may be a manner by which the husband is able to follow a good sunnah
if divorce is given from husband is he liable to give marage expanses