Nikah Misyar: The Good, the Bad and the Ugly.

This is an issue that is close to my heart, since apparently I am a contributor of a growing problematic community in Malaysia; I'm educated, employed, unmarried and female. 

I first read about "nikah misyar' (pronounced 'mis-yaar') through my Yahoogroups, and being one of the more argumentative voices in our circle, I Googled to have a look before replying. Almost immediately I came across what is to be a consistent problem in all discussions relating to nikah misyar. There are no clear and consistent definitions, no dalils from the usual sources of Qur'an and Hadith from the misyar marriage proponents, which basically leaves me stumped.

The sensational reporting from the newspaper did little to shed light on this topic (so what else is new?) and the discussion on 9TV in the Halaqah program (Sunday, 21 May 2006, 9.00pm) avoided expanding on misyar marriage and its implementation, choosing the safer path of expounding the virtues of marriage in general, and focused more on idealistic situations, assuming the husband is an all-round perfect Muslim, and the wife is a rich Muslimah.

So many definitions 

So what is nikah misyar? From my rough survey, each source gives a highly different and sometimes contradictory definitions:

Husband provides for nafkah batin only, frequency of visits as agreed in contract : Berita Harian

The couple do not live in one household, but visit each other; husband is not financially responsible for supporting his wife; temporary arrangement with no set duration, but divorce is implied (husband's intention is kept hidden) : Wikipedia

Husband is responsible for everything in the marriage (as normal marriage) EXCEPT for the financial support to the wife : Halaqah, 9TV (words of Ustaz Roslan, UM)

All 3 definitions cannot be true! Perhaps that is why Qardhawi chose to define his opinion from a purely legal perspective:

"… Therefore, if anyone seeks my opinion on this marriage, I must reply him saying: What do you mean by Misyar marriage. However, if I get an explanation that shows that in Misyar marriage, all the Islamic legal requirements are met, then the marriage is valid.

Those requirements are: an offer and acceptance from both parties; a specified dowry, according to the Qur'anic verse: "And give unto the women, (whom ye marry) free gift of their marriage portions" (An-Nisa': 4), and that the contract wins the consent of the guardian. Thereby, no one has the right to brandish it as unlawful…"  [more here]

Qardhawi has chosen to stay on the fence, and rightly so, because the nature of misyar marriage depends on what has been agreed by the man, woman and her wali (if applicable) in the contract prior to their aqad. Theoretically this should absolutely safeguard all parties from being taken advantage of.

(Actually, reading between the lines, what Qardhawi is also saying is, there is no need for any other type of marriage, since a normal marriage contract allows for additional conditions and clauses to be added or taken out provided that all parties agree!)

There is also this misconception that this marriage is suited for people who travel frequently, because misyaar marriage is interpreted as 'traveller's marriage'. This is refuted below (possibly, because my Arabic is useless):

"What is the definition of the word misyaar? This you wil not find in the dictionary. The original word was actually maisar… which means wealth but it has been transformed (in grammar terminiology (sic) this is the concept of qullab) into misyaar and some people mistakenly translate this into “travellers” marriage… Misyaar in this context means wealth." [more here]

To me, in this context misyar marriage is more concerned with the financial responsibilities in a marriage rather than licensing free conjugal rites. The difference is that with the former emphasis, the husband is not absolved of other responsibilities. This means that he is still obliged to give the wife support and guidance, whether physical or emotional. This aspect was completely overlooked in our newspaper coverage, and no surprises there. Nothing sells newspapers more than invoking the wrath of intelligent, affluent women. (Ahem..). Yes, sex sells too. 

Is Misyar marriage so terrible?

Misyar marriage is seen in a bad light for 3 main reasons; there is no strong backing in the Qur'an, there is no precedent during Rasulullah's (saw) lifetime, and because of its poor implementation today. Misyar marriage is already much used as a ticket to cheap and halal sex in Saudi Arabia and used by men to gain temporary companionship on their holidays. In this manner, the misyar marriage dangerously resembles mut'ah marriage, and arguably worse since the duration is not specified, the wife practically belongs to the man indefinitely. 

My concern is that, without a proper legal framework, misyar marriage will never be used in the spirit that it was intended, which is to give two people a chance to be united while recognising the economic disparity and allowing room for negotiations. Also, much is missing in terms of family law, if children are born out of misyar ties; the same goes for inheritance.

There are opinions that once a child is born from a misyar marriage, then the misyar contract is null and void, but I have have yet to see strong argument for this. If this is true, what then? Does the misyar wife automatically become a normal wife? At point of birth, or at point of confirmation of pregnancy? If the husband is now automatically obligated to support the wife and child financially, does this not open the way for entrapment? A woman can initially agree to a simple misyar marriage, then get herself pregnant to upgrade her status.

It's all in the contract

Since the misyar marriage depends heavily on the terms of the contract, is there allowances for the contract to be reviewed? People's needs change over time, so why shouldn't there be flexibility in changing outdated terms and conditions? The husband might be up for action 5 times a week now, but will he be able to deliver 10 years on?

Personally, going into any kind of marriage will have me scouring through all the list of terms and obligations, misyar or no. My experience in drawing up contracts is, as careful and omniscient as you try to be, there will always be something not quite covered by the clauses. If any one party (the man, woman or wali) is ignorant during the contractual agreement, then there may be grave consequences, especially the other party(s) has ulterior motives.

My personal take on this? I'm backing Qardhawi. Each misyar situation is unique, then so should be the contract. As long as the compulsory parts of the 'aqd is present, then the marriage is legal and binding. But happily ever after? Only God can tell.

Other resources: 

Misyar Marriage — a Marvel or Misery?
A Happy Misyar Union

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