Marriage and Family Law: Cross-Madhab Analysis

Family law is one of the richest areas of comparative Islamic jurisprudence, touching on some of the most consequential decisions in a Muslim's life. Ibn Rushd's analysis in Bidayat al-Mujtahid addresses marriage, divorce, and related matters with the same systematic exposition of agreements, disagreements, and their roots that distinguishes the rest of the work.

All four schools agree that marriage requires an offer and acceptance, a mahr (dower), and two witnesses. The major disagreement concerns the wali (guardian). The Shafi'i and Hanbali schools hold the guardian a pillar of the marriage — without him, the marriage is void. The Maliki school holds the guardian required for virgins but concedes that a mature non-virgin may, in theory, conclude her own marriage (though the guardian is still strongly preferred). The Hanafi school holds that a sane adult woman may conclude her own marriage contract, though the guardian retains a right to object if the match is unsuitable (kafaah).

Ibn Rushd traces this disagreement to conflicting hadith evidence. The hadith 'There is no marriage without a guardian' (Abu Dawud) supports the Shafi'i and Hanbali position. The Hanafi school challenges the hadith's applicability to the full range of women, arguing that context and other narrations indicate it was specifically for women who married themselves off without their guardian's knowledge to unsuitable men. The Maliki school holds an intermediate interpretation. Ibn Rushd notes that this is a classic case of hadith evaluation determining the outcome.

On the mahr: all schools agree it is obligatory and that it becomes the wife's exclusive property. The disagreement is over whether specifying the mahr is a condition of the marriage's validity. The Shafi'i and Hanbali schools hold that the marriage is valid without specifying the mahr — a fair mahr (mahr al-mithl) becomes due automatically. The Maliki school generally agrees but has nuances regarding certain types of void mahr clauses. The Hanafi school similarly holds the marriage valid with an unspecified mahr.

On divorce: all schools agree that the husband has the unilateral right to pronounce talaq, that a revocable divorce (bain sughra) allows return within the iddah, and that after three talaqs the couple cannot remarry without an intervening marriage. The most contentious point is the triple talaq in one sitting. The Maliki, Shafi'i, and dominant Hanbali positions hold that three talaqs pronounced at once count as three, making the divorce immediately final. Imam Ahmad ibn Hanbal himself held — based on a narration from Ibn Abbas — that three talaqs in one sitting count as one revocable divorce. This minority position was also held by Ibn Taymiyyah and is defended by Ibn Rushd as the stronger hadith-based view.

On khul' (woman-initiated dissolution): all schools agree it is permissible. The Maliki, Shafi'i, and Hanbali schools hold that khul' requires the husband's agreement and constitutes an irrevocable separation that does not count as a talaq. The Hanafi school holds it requires a judge if the husband refuses. On iddah: all schools agree on three menstrual cycles for divorced women and four months and ten days for widows, based on explicit Quranic texts (2:228, 2:234).

Ibn Rushd's family law analysis in Bidayat al-Mujtahid is remarkable for its fairness — he presents the evidential basis for each position honestly, even when it leads him to acknowledge that the minority view may be better supported by the explicit prophetic narrations.