The Legal Status of Marriage to a Religiously Non-Equivalent Spouse in Islamic Jurisprudence and Iraqi Positive Law

Abstract

The predominant view among Imami Shiʿi and Sunni jurists is that a marriage is invalid where religious kafāʾa (compatibility or equivalence) between the spouses is absent in the sense that one of them is a non-Muslim. In other words, religious kafāʾa, understood as equality in adherence to Islam, constitutes a condition for the validity of marriage. However, where religious kafāʾa is understood as referring to religiosity and moral uprightness, most jurists maintain that the marriage of a girl to a non-equivalent spouse (ghayr al-kufʾ) gives her the right to rescind the marriage upon attaining puberty, while the marriage of a woman to a non-equivalent spouse also entitles her guardians to seek judicial rescission. In other words, religious kafāʾa, when understood as equivalence in chastity and religiosity, constitutes a condition for the binding effect of the marriage. In the Iraqi Personal Status Law, the legislature, while relying primarily on the general provisions governing religious and legal impediments to marriage, has expressly stipulated only in Article 17 that a Muslim man may marry a woman from the People of the Book, whereas the marriage of a Muslim woman to a non-Muslim man is invalid. Unlike Islamic jurisprudence, however, Iraqi legislation has not elaborated on the various details and subsidiary issues concerning the religious and sectarian compatibility of spouses, including the contractual status of such marriages and the mechanisms for resolving disputes arising from a breach of this condition. Nevertheless, with the enactment of the Jaʿfari Code, part of this legislative gap and ambiguity has been addressed with respect to Shiʿi spouses. Under the Code, the marriage of a Muslim man to a non-Kitābī woman and the marriage of a Muslim woman to a non-Muslim man are void, with no distinction in this respect between original unbelief and apostasy. However, if a non-Muslim husband and wife embrace Islam simultaneously, their marriage remains valid. Likewise, if the husband of a Kitābī non-Muslim woman converts to Islam, the marriage remains valid, regardless of whether the conversion occurs before or after consummation. If a Kitābī woman converts to Islam before consummation, the marriage is dissolved, and she is not entitled to a dower. If, however, she converts to Islam after consummation and her husband embraces Islam before the expiration of her waiting period (ʿidda), the original marriage remains valid; otherwise, she becomes separated from her husband from the time of her conversion to Islam. If either spouse in a marriage between non-Kitābī non-Muslims converts to Islam before consummation, the marriage is immediately dissolved. If the conversion occurs after consummation, the marriage is dissolved upon the expiration of the ʿidda; however, if the other spouse also embraces Islam during the ʿidda, their marital relationship remains in force.