The jurisprudentiel and legal nature of competence in the marriage contract

Abstract

This study aims to shed light on the extent to which compatibility is considered a condition of the marriage contract in Islamic jurisprudence and law, and thereby to determine the jurisprudential and legal characterization of compatibility in the marriage contract. Through this study, it becomes clear that there is a jurisprudential and legal disagreement regarding whether compatibility is a condition of the marriage contract; this disagreement manifests itself in two jurisprudential opinions: one opinion rejects compatibility in the marriage contract, considering it contrary to the principle of equality among individuals and a form of arrogance and pride, and also inconsistent with the principle of piety as the basis for distinguishing between individuals, as Allah says: “The most honorable of you in the sight of Allah is the most pious among you” (Al-Hujurat, verse 13). A second jurisprudential opinion considers compatibility a condition of necessity, not a condition of validity, entailing the right for the woman and her guardian to seek annulment. It is considered in social matters aimed at achieving equality and suitability between spouses, and is therefore a condition for the stability of marriage and the achievement of harmony and balance in the marital relationship, based on evidence from the Prophetic Sunnah and sound reasoning. This is the opinion we endorse as a preventive solution to the problem of divorce in our society caused by a lack of compatibility between spouses. As for the legal differences regarding the issue of compatibility in the marriage contract, we find that most Arab legislations have considered compatibility a condition of validity rather than a condition of validity, the absence of which entitles the woman and her guardian to request the annulment of the marriage contract, whereas we find that Maghreb legislations (the Algerian Family Code, the Moroccan Family Code, and the Tunisian Personal Status Code) do not consider compatibility a condition of marriage, relying in this regard on the jurisprudential opinion that rejects it. In order to achieve stability in the marital bond, we believe it is necessary for the Algerian legislature to adopt the system of compatibility in the marriage contract as a condition of validity, subject to strict legal controls designed to address the phenomenon of widespread divorce among couples in our society.