7 – Valid conditions include, for example, stipulating a specific sum for the dower, requiring that he not move her away from her town, or that he not separate her from her parents or her children. Such clauses are sound and therefore binding.
8 – Among the defective conditions is a wife’s stipulation that her husband divorce a co-wife.
In the two Ṣaḥīḥs it is reported from Abū Hurayrah that “the Messenger of Allah ﷺ forbade a woman to ask for her sister’s divorce, seeking thereby to overturn what is in her vessel.”
Shaykh Muḥammad ibn Ibrāhīm Āl al-Shaykh said: According to Abū al-Khaṭṭāb—and this is the position of most Hanbalī jurists—if she stipulates the divorce of her co-wife the condition is valid.
The second view, chosen by Shaykh Taqī al-Dīn (Ibn Taymiyyah), holds that it is not valid, and this is the correct position: it is unlawful for her to demand it, and even if she does, the condition is void, in light of the ḥadith, “Every condition that is not found in the Book of Allah is null and void.”
9 – Al-Khaṭṭābī classified marital conditions into three categories:
- Those that must be fulfilled, namely what Allah has commanded, such as retaining one’s wife honorably or releasing her in kindness.
- Those that are not to be fulfilled, such as demanding the divorce of a co-wife, because the Prophet ﷺ prohibited it.
- Those over which there is disagreement, such as stipulating that he will not take another wife, that he will not move her from her current residence to his, or any condition the contracting parties set for themselves in addition to the dower. Imām al-Shāfiʿī, Aḥmad, and Isḥāq considered such clauses and their likes to be valid.
10 – Allah, exalted is He, has magnified the matter of the marriage contract and enjoined that this marital bond be respected and preserved. Lawful access to one another’s private parts is no trivial or easy matter. He says, “Live with them honorably” (Q 4:19), and, “And they (wives) have rights similar to those against them, according to what is fair” (Q 2:228). He even called the contract “a solemn covenant” when He said, “How can you take it back after you have been intimate with one another, and they received from you a solemn covenant?” (Q 4:21).