Marriage, Divorce, and Family Law

The Risalah's chapters on family law cover the fundamental rules governing marriage, divorce, and related matters. Ibn Abi Zayd's treatment reflects the Maliki school's distinctive positions on these questions, which in some respects differ significantly from the other major schools and which have had substantial practical importance throughout the Maliki-practicing world.

Marriage: Conditions and Pillars

The Maliki school identifies five pillars of a valid marriage contract: (1) the guardian (wali) — the marriage guardian of the bride, without whose consent the marriage is generally invalid; (2) the groom; (3) the bride; (4) two witnesses to the contract; and (5) the marriage payment (mahr). The requirement of a guardian is one of the most distinctive Maliki positions — the school holds that a woman, even one who has been previously married, may not contract marriage herself without a guardian, except in the limited case where no guardian can be found and the qadi acts in his place.

On the mahr (dower), the Maliki school requires that a mahr of genuine value be specified or implied; a marriage contracted with no mahr at all is technically irregular, though it does not invalidate the marriage after consummation. The Maliki school also has a distinctive ruling on marriages with excessively low mahr, which the qadi may refuse to approve as contrary to the honor of Muslim women.

Marriage Prohibitions

Ibn Abi Zayd covers the permanent prohibitions on marriage — those arising from kinship (mothers, daughters, sisters, aunts), fosterage, and affinity — and the temporary prohibitions, including being married to two sisters simultaneously, being married to more than four wives, and being in a state of ihram (pilgrimage consecration). He also addresses the prohibition on marrying polytheist women, contrasting this with the permissibility of marrying Jewish and Christian women (People of the Book), which is a matter of scholarly consensus.

Divorce

The Maliki school's divorce law contains several distinctive rulings. The talaq (divorce by the husband's declaration) is covered along with the conditions for its validity and revocability. The Maliki school's position on talaq al-bid'ah (innovative divorce — three talaqs pronounced simultaneously) is that while it is forbidden as an innovation, it is legally effective as three irrevocable divorces, not merely one — a position shared by the Hanafi and Shafi'i schools but contested by the Hanbali school.

The Maliki school gives particular attention to khul' — the wife-initiated dissolution of marriage through which the wife returns the mahr or other compensation in exchange for the husband's release of the marriage. Ibn Abi Zayd explains that khul' ends the marriage immediately and is treated as an irrevocable divorce, after which the husband has no right of return during the waiting period (iddah). The Maliki school also developed the concept of talaq al-hakim — judicial divorce ordered by the qadi in cases of the husband's failure to maintain the wife or his prolonged absence — a socially important remedy that the Maliki school developed more extensively than other schools.