Conditions of Marriage according to the Four Fiqh Schools
2-10-2003 | IslamWeb
Question:
A Muslim man came to me with 2 Muslim women and asked me and my Muslim friend to witness his marriage on one of the women without recording the marriage by Sheikh, I refused to witness the marriage because the woman has no father or brother or any one as a custodian but she wanted to marry herself to the man. What I did is right or wrong according to Islamic instructions? Could you explain the marriage conditions according to the four Madhab; Hanbali, Maliki, Shafi'e and Hanafi?
Answer:
All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad 
is His slave and Messenger.
First of all, know that what you did is the right thing to do as the Muslim should keep away from all doubtful things.
Secondly, it will be a long and diverse discussion to speak about the conditions of marriage according to the four schools of Jurisprudence. Yet, we may tackle it roughly: Marriage has three kinds of conditions: those related to validity, those related to implementation, and those related to commitment.
As for the validity conditions, they are as follows:
1. A woman should be marriageable; i.e., must not be unlawful to marry for any of the reasons that make marriage temporarily prohibited; like being a wife's sister, or permanently prohibited; like being foster-sister, for instance.
2. A woman or man must not be in a state of Ihram (state of consecration during Hajj or ‘Umrah), according to the opinion held by the majority of the jurists. Yet, according to the Hanafi Jurists, a man or woman in the state of Ihram may get their marriage contract established.
3. Marriage must not be temporary (i.e. when a period is stipulated for its duration). If it is so, then it will be considered Mut'ah marriage (short-time marriage) that is unanimously invalid.
4. A man has to be apt for the woman he wants to get married to, though, according to the majority of scholars, it is not a condition. [Al-Mughni: 6/480] In Haashiyat Ad-Dassouqi ‘ala Ash-Sharh Al-Kabeer, both the Wali (guardian) and the wife may disregard this condition and fulfill her marriage with a dissolute person who is an alcohol addict, provided that she will be safe from him.
5. Bringing witnesses to attest to the marriage contract. This is the opinion of the majority of jurists who are of the view that a marriage contract is invalid without the presence of witnesses. The Maaliki jurists are of the view that it is obligatory to have witnesses when consummating the marriage and recommendable while conducting the marriage contract. If witnesses were present upon conducting the marriage contract, then the two cases are fulfilled (i.e. the case of obligation and recommendation).
However, if witnesses were absent during the contract but present upon the consummation of the marriage, then the obligation is fulfilled while the recommendation is missed. If no witnesses were present at the time of both the consummation of marriage and when conducting the marriage contract, but at one of them only, then it is also valid. It will be sinful on the part of the two parties of the contract if they do not bring witnesses. If they find no witnesses, the contract is considered invalid. [Haashiyat As-Saawi ‘ala Ash-Sharh As-Sagheer] As for the implementation conditions, they are as follows:
1. The two parties of the marriage contract (the wife and the husband) should be mature, free, and sound-minded. If one of them has a perplexed state of mind or is an indiscriminating minor, then the contract that he/she conducted is valid if her Wali agrees on that; otherwise, it is invalid.
2. The availability of a health-fit Wali to be apt for undertaking the marriage contract.
As for the conditions related to the contract to be binding, which make the two parties bound to execute the contract without any of them having the right to abrogate it, according to the Hanbali Jurists, they are as follows:
1. The verification of suitability on the part of the prospective husband. Thus, if he misinforms his fiancée or her Wali of his lineage, which turns later to be in violation of the required characteristics of suitability, then she or her Wali have the right to nullify the contract.
2. Being free from defects because of which the contract may be nullified. They are of three categories:
A) Defects that may inflict both sides (man and woman), such as madness, leprosy, and the like.
B) Defects that inflict the woman, such as narrowness or blockage of her vagina, existence of a bone in her vaginal cavity that hinders penile insertion, and the existence of a bag of certain kind in the vaginal cavity.
C) Defects which are limited to the man alone, such as penile mutilation and sexual impotence.
Any party that finds such defects in the other may invalidate the contract. Separation because of defects is a point of agreement among the four Imams (of Jurisprudence), but they differed on its details and the pinpointing of the defects, which nullify the marriage contract.
For more details, one may refer to the detailed books of Fiqh (Jurisprudence).
Allah knows best.