The effects of a sham marriage: -A comparative study-
Abstract
Praise be to God, and prayers and peace be upon the best of messengers, Muhammad (peace and blessings of God be upon him). And after:The issue of research on the topic (the effects of the sham marriage) is considered one of the important issues due to the novelty of the topic and in contrast to its wideness, as the sham marriage is no longer confined to Western countries, but its scope expanded until it reached the Arab countries. The sham marriage is a contract between two parties, therefore, it will arrange effects related to the spouses or may infringe on others, and these effects may either be financial effects, and this marriage may arrange non-financial effects as well.The financial effects are represented by the dowry, alimony, and inheritance between the spouses, while the non-financial effects are represented by the dissolution of the enjoyment of the other by both spouses, cohabitation, lineage, and waiting period. With regard to the dowry, it is a right for the wife and a duty that falls on the husband and he must fulfill it for the wife. The jurists differed in the event that there are two dowries in the case of a sham marriage, the real dowry (the secret dowry) and the public dowry (the dowry). The advertiser, i.e. the figurehead, is the one who counts when claiming the dowry.Alimony is also one of the financial effects of marriage, but the difference appeared in the reason for the wifes entitlement to alimony, so the majority of jurists held that the reason for entitlement to marital alimony is complete empowerment, not the contract, and the Jaafari went with it, as they mentioned that alimony is obligatory by empowerment, not by mere valid contract on the husband. While the Hanafis held that the reason for entitlement to marital alimony is the valid contract and retention, it is not caused by the valid contract only, as is the case in the dowry, but rather the valid contract must be based on the condition of retention for the benefit of the husband according to the legal rule Whoever is withheld for the interest and benefit of another, then his maintenance is obligatory on the one who was imprisoned For his own benefit and benefit. Therefore, if the wife is imprisoned for her husbands right and benefit, even if she does not move to his house, if he does not ask her to move to him, then she is entitled to alimony by mere contract. Al-Zahiriyyah held that the reason for entitlement to alimony is the marriage contract, so the wife must pay her alimony from the time of the marriage contract, whether he called for building or not, disobedient or not, rich or poor, with a father, orphan, virgin, freed slave, or slave Inheritance between the spouses is also one of the effects of a sham marriage and takes the same provisions as a valid marriage.As for the non-financial effects, represented by each spouse enjoying the other, as it is considered one of the important effects of a valid marriage because it is the desired goal or goal of marriage, but through our research in the sham marriage, we did not find this goal in it, as the aim of the sham marriage is to achieve worldly goals only.The second non-financial effect of the sham marriage, it is lineage, as lineage is considered the first fruit of marriage. Pregnancy and childbirth are among the natural and legitimate results of the marital relationship that binds both the man and the woman with the bond of intimacy, affection and mercy, and this bond increases in strength and durability with the child who is the fruit of marriage. Moreover, legal cohabitation is also one of the non-financial effects of a sham marriage.In order to achieve the purposes of Islamic law regarding marriage, and to ensure the stability and continuity of the family, legal cohabitation between the spouses is necessary, meaning that there must be a dwelling in which both spouses meet with the requirements of this legal meeting carrying out marital right.Thus, it is necessary to provide housing for the spouses, securing the marital home is one of the rights of the wife over the husband. As for the last effect of the non-financial effects of marriage, it is the waiting period, as it is considered one of the most important non-financial effects of marriage, and it is one of the wifes obligations and Gods rights, so it is not permissible to agree to deny it or waive it. Consummation did not take place except in the event of death, as the waiting period is obligatory for her, whether before or after consummation
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