The pillars and conditions of nikah

The contract wording: ijab and qabul

The nikah is expressed through an offer and an acceptance. The past tense is safest: the guardian says "I marry my daughter to you", and the husband answers "I accept". The majority of jurists (Hanafis and Malikis) also accept the present tense and the imperative; the marriage is never concluded by a mere gesture, as the four schools agree to forbid it, out of respect for the standing of women. For the Shafi'is, acceptance must follow the offer without a long break; the Hanafis require one sitting when both parties are present.

The wali, the marriage guardian

The majority of jurists, Malikis, Shafi'is and Hanbalis, require a guardian: a woman does not conclude her own marriage, whether virgin or previously married. The Quran blames Maq'il ibn Yasar's brother for refusing to return his sister to her husband (al-Baqara 232). Abu Hanifa, on the other hand, allows a free adult woman to conduct her own contract. The guardian must be free and Muslim; a non-Muslim cannot be the guardian of a Muslim woman, by consensus. Discernment and good conduct are not required by the majority, and a man in ihram does not conclude marriage contracts.

The two witnesses

There is no marriage without a guardian and two trustworthy witnesses; every marriage concluded otherwise is void. If they dispute, the authority is the guardian of the one who has no guardian.Ibn Hibban 4075 ; ad-Daraqutni 3533 ; al-Bayhaqi 13496

The majority of jurists (Hanafis, Shafi'is, Hanbalis) take these sound reports as proof: two witnesses are required, so that the marriage is public and protected from denial. Imran ibn Husayn also reported: "There is no marriage without a guardian and two trustworthy witnesses" (Abd ar-Razzaq 10473 ; at-Tabarani).

Conditions on the spouses

• no impediment of kinship, breastfeeding or affinity, nor the bar on joining two sisters;
• the husband's Islam when the wife is Muslim: by consensus, a Muslim woman does not marry a non-Muslim;
• the wife must not be within the waiting period of a revocable divorce: by consensus, a man who has repudiated a revocable wife may not take a fifth wife, nor her sister, before her period ends;
• the husband may not already have four wives;
• consent: the majority of schools (Malikis, Shafi'is, Hanbalis) void a forced marriage; the Hanafis hold it valid but rescindable, relying on the case of Khansa' bint Khidam whose contract the Prophet annulled after her father had arranged it.

Cases of illness

The Malikis add a rule of their own: a man or woman suffering a serious illness does not conclude a marriage, since an heir could be born or die after the agreement, harming the rights of the other heirs.

Practical note

In short: a guardian, two witnesses, a clear wording, and spouses free of impediments. These conditions come from the manuals of the four schools; for a precise situation, turn to a qualified scholar.