Chapter: Contracting Marriage for a Minor

A man is permitted to marry off his young son when he judges it to be in the boy’s best interest; no other guardian enjoys this prerogative. In Mālik’s view, a testamentary trustee (waṣī) has the same authority as the father to arrange such a marriage, provided it is likewise for the child’s welfare. One report from Mālik allows both the legal guardian (walī) and the trustee to contract a minor’s marriage, stating that in concluding the contract and defending it in any dispute they stand on the same footing as the father. The more widely transmitted position, however, is that the guardian does not share the trustee’s status, whereas the trustee, as noted, is treated like the father.

If a man marries off his minor son who owns no property, the dower (mahr) is payable by the father, for he is volunteering it on the boy’s behalf. If the son is solvent, the dower rests upon him and nothing is charged to the father while the son is able to pay—unless the father willingly guarantees it. Should the father assume such a guarantee, it is a form of suretyship (ḥamāla) that obliges him only if the son later acquires assets. But if, at the moment of guaranteeing, he declares, “I guarantee it from my own wealth in every circumstance,” he becomes liable whether the son is prosperous or destitute, and, should he die, the sum is taken directly from the capital of his estate.

If the son, having been solvent when the contract was concluded, is unable to pay the dower at the time of consummation, the dower remains a debt upon him; his subsequent insolvency does not transfer the obligation to the father. Likewise, if part of the dower was deferred while the son had no wealth and he later became affluent, he is not liable for any portion of it that fell due when he possessed no property.