The contraction of marriage: its pillars and its conditions

To be full and right, the contraction of marriage should fulfill the following conditions (pillars):

1- Request and approval: (wording).

a) Its definition: Request is the will expressed by the one who intends to marry or his representative. Approval is the consent of the other part.

It is worth mentioning that woman should be consulted about her marriage and she should not be compelled. She has the full right to accept or refuse. In this request the prophet may peace be upon him said:  «The widowed and the divorced should pronounce their consent and the virgin's consent is perceived through her silence». The Ulemas say:  «Silence in the moment of decision is prove of consent».

b) Its conditions:

v    Request and approval must be pronounced in one place and at the same time, the request first then the approval.

v    Approval should be pronounced just after the request.

v    The conformity of request with approval in two things: the object of marriage (the man and the woman) and the amount of the dowry.

v    The decision (request and approval) must be clear and immediate, because the impacts of marriage will be assumed by the two parts just after the fulfillment of the contraction of marriage.

2- The tutor

a) The definition of the tutor: He is the person who has authority over other persons or their money or over both of them.

b) His legitimacy: The presence of the woman's tutor is obligatory to accomplish the contraction of marriage. The prophet -may peace be upon him said: «No marriage without a tutor».

c) The requested conditions of the tutor:

-He should be mature and apt to assume the consequences and the responsibilities.

-He should be Muslim, because no tutelage for a non Muslim over a Muslim.

-He should be of the same kinship with the woman. In case there is none, a representative can replace him. It is not a condition for the latter to be from the same kinship.

3- The witnesses: The prophet -may peace be upon him said: «No marriage without the presence of the tutor and two trust worthy witnesses».

The presence of at least two witnesses is obligatory. They should be trustworthy and apt persons. Their task is to witness the fulfillment of the contraction of marriage.

4- The dowry:

a) Its definition: It is the money that the woman receives from the man because of marriage. It is obligatory to fulfill the contraction of marriage. The Almighty Allah says: «And give the women their dowries as a present…» [Sûrat An-Nissa /the women, 4].

b) Its conditions:

v    The dowry should have a value.

v    It should be legal.

v    It should not be extorted from others.

v    It should be known and fixed.

c) When does the woman deserve the dowry?

1. The woman deserves the entire dowry in two cases:

-If the contraction of marriage is accomplished and her husband died before the consummation of marriage.

-If the contraction of marriage is accomplished and the woman gets divorced after the consummation of marriage.

2. She receives half of the dowry if the contraction of marriage is accomplished and gets divorced irrevocablly before the consumation of marriage.

5- The object of marriage (man and woman): The man and the woman should be free from any obstacles (the above mentioned obstacles). They should also be satisfied with the contraction of marriage. Adding to this, the condition that is stipulated by the article 7 of the Algerian Family Code, which limits the age of marriage to 21 years for man and 18 years for woman.

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