(This was an ISIME Position Paper, written for Shaul Gabbay, who was at that time the Director of the Institute for the Study of Israel in the Middle East (ISIME) at the University of Denver. Disclosure: I had a small role in proposing the Center for Israeli Studies in what was then the Graduate School of International Studies; ISIME was the outcome of this proposal. The text below was last edited Dec. 31 2007).
Islamic law and tradition defines a status of “temporary marriage.” In commenting on traditions ascribed to Muhammad, the 13th century scholar Al-Nawawi notes that mut’a marriage is as “marriage for a specified time, without inheritance, the end of which results from the end of the period, without divorce.” (Commentary on the Sahih of Muslim ibn al-Hajjaj, chapter on Mut’a marriage). Al-Nawawi notes, as is typical, that at the end of the period, this status can be renewed. Al-Nawawi further notes that no witness or guardian is necessary, as is the case in normal Muslim marriage, and that it was typically done for short periods in cases of great duress, and that there are traditions prohibiting and those allowing the practice.
Complexity of Personal Status issues
When dealing with personal status issues, we as a society often assume that the status is binary—one is either married or not, alive or not and so forth. Nevertheless, there are always “grey areas” which test the limits of personal status, and in such cases, definitions may vary between various jurisdictions and contexts. In some of these cases, legislation or regulations define more precise boundaries at least within specific applications, often yielding complex guidelines. In recent years to much ongoing public discourse, debate in churches and government, and professional considerations in hospitals have focused on beginning- and end-of life issues, where the complexity of medical, legal and ethical issues is obvious. There is no societal agreement about the precise moment when various rights, prohibitions and obligations inherent in the personal status of “living person” begin and end, and such cases can become contentious and complex.
U.S. Marital status continues until terminated by death, divorce or other decree dissolving the marriage
Debate about married status can be similarly complex. For example, Internal Revenue Service regulations use a Federal test to determine who is able to claim “married” status for Federal tax purposes, but State-level actions define a once-married individual as “single” for Federal tax purposes. (2006 1040 Forms and Instructions pp. 16-17). The IRS language is consistent with the Federal Defense of Marriage Act, Pub. L. 104-199, 100 Stat. 2419 (Sept. 21, 1996) (DOMA) which defines marriage for all Federal purposes as the “legal union between one man and one woman as husband and wife,” requiring Federal agencies to use a different definition than might be in practice in certain States or other jurisdictions. Its reference to “legal union” does not address what statutory requirements make the union legal, nor does it establish a single, Federal, regulation for marriage throughout the United States.
Nevertheless, multiple types of marriage are recognized in the United States. In this state, Colorado, certain unions are recognized as marriage which would not be valid in a majority of the other States. According to Colorado State Attorney General, John W. Suthers, “Common law marriage is a term used to describe a marriage which has not complied with the statutory requirements most states have enacted as necessary for a ceremonial marriage.” In Colorado, this type of union has the status of marriage, although it is not considered valid in the States. One ramification is that the “common law marriage,” like the ceremonial marriage, can be “terminated only by death and divorce.” http://www.ago.state.co.us/FAQ/CLM_FAQ.cfm
Note that termination only by death or divorce is thus a feature of the Colorado A.G.’s office understanding of marriage, as it is (with legal separation or court decree) of Federal IRS regulations.
The Defense of Marriage Act was not designed to address termination of marriage, although those who framed this legislation no doubt presumed that marriage is a status terminated only by death, divorce or equivalent decree, as in the IRS and Colorado regulations.
The point is not to review applicable Federal and State regulations regarding marriage, but to introduce the proper subject of this memorandum with a reminder that personal status can be a complex issue, with status differing for different jurisdictions and contexts. Nevertheless, U.S. discourse generally recognizes marriage as an institution that continues indefinitely, requiring death or a specific act for termination. If termination of marriage is by death, divorce or other decree, a relationship uniting a man and a woman for a specific period of time which specifies that no such act is necessary cannot be a marriage.
Temporary Marriage, the Judaeo-Christian tradition, and the Pre-Islamic tradition
As we have seen, American society considers marriage to be a union between two parties who cohabit and maintain a joint household, with marital status continuing indefinitely, terminated only by death, divorce, or another act of separation or annulment. “Temporary Marriage,” or “limited-duration marriage” as practiced in Shi’a Islam occurs when the union ends at such time as contracted by the parties at the beginning of the union. In other words, instead of specifying the marriage lasts “’till death do us part” the temporary marriage provides “until next Thursday” or some other specified term.
The idea that marriage is “one man, one woman, one lifetime” (“’till death do us part”) reflects New Testament considerations, in both the Gospels and the letters of St. Paul; the influence of Saint Augustine (d. 439 CE), especially his work The Good of Marriage, and the Justinian Code (534 CE), which allowed sexual activities only within monogamous, permanent, heterosexual marriage.
While it might appear that this yields a situation in which there is only one type of marriage, note that the Hebrew Bible provides multiple models for marriage. For example, Abraham is depicted as having a full wife (Sarah), a slave woman functioning as a surrogate for purposes of procreation (Hagar) and later a concubine (Keturah). Nevertheless, it does not appear that any “time-delimited” unions were characterized as marriage in Hebrew Bible. Rabbinic discussion of marriage contracts devoted much attention to possible variations of the statement “behold you are consecrated to me,” including various stipulations. But there is no reference to a betrothal “for such and such a period of time,” and in any case, marriage cannot be conditioned on any stipulation limiting it in this way (see, e.g., Yevamot 94b) and regardless of any such stipulation the woman would be considered married until death, legal separation or divorce.
In American culture, a time-delimited arrangement a man and woman which includes a financial consideration for the woman is not considered marriage. Indeed, especially if it is short term and involves sexual activity, it is usually considered more like prostitution than marriage in many jurisdictions.
Nevertheless, in ancient Arabia and probably parts of adjacent Africa, this type of union was well known, and it continued on into Islamic times especially but not only in Shia areas. In Arabic, “temporary marriage” is almost always called mut’a marriage. Mut‘a is an Arabic word meaning “pleasure.” There are references to the practice in the pre-Islamic Middle East, including ancient Egypt and Erythaea; and a Roman source refers to this Arabian practice in the 4th century. (W. Robertson Smith, Kinship in Islam pp. 80ff). Islamic-period works make frequent reference to this as a practice remembered in pre-Islamic times, sometimes even at the woman’s initiation and even in cases where the woman was married to someone else but her husband was absent for long periods of time.
- Mut’a Marriage
Temporary marriage survived into early Islamic times, and may have been referred to in the Qur’an:
“Also (prohibited are) women already married, except those whom your right hands possess. Thus hath Allah ordained (prohibitions) against you; Except for those, all others are lawful, provided you (seek them in marriage) with gifts from your property desiring chastity not lust. Seeing as you derive Benefit from them (!) give them their dowers (at least) as prescribed.” Al-Nisā’ (4): 24. (translation follows Abdullah Yusuf Ali).
In this text, the word translated as “benefit” is istamta‘tum literally “you had pleasure of them” or “you had a mut‘a relationship with them.”
There is a robust literature on the precise meaning of this term. As we have seen, Abdullah Yusuf Ali translates the term “had benefit of them” in The Meaning of the Holy Qur’an, (originally Lahore 1934; edition used is Amana, Beltsville MD 2001). In this popular Sunni-oriented Qur’an edition, there is no reference to “temporary marriage;” the term is understood to mean “surrendered her person.” Based on Islamic law, which distinguishes between marriages which have been consumatged and those which have not, presumably this refers to consummation of the marriage.
The Mir Ahmad Ali translation (Tahrike Tarsile Qur’an, 2002) is a Shi’i translation, and renders this as:
“ye had ‘Muta’ with them.” The margin notes: “Ar. ‘Muta’ or a limited wedlock allowed in Islam—current during the whole lifetime of the Holy Prophet—during Abubakar’s Kalifate—and also for two or more years during Omar’s Kalifate—but Omar prohibited it of his own accord—against the sanction of the Qur’an. Ali renewed it & none thereafter prohibited it.”
Footnote 516 (p. 370) observes that even Umar, who cancelled it, recognized that it was practiced in the time of the Prophet Muhammad. The note explains that neither party inherits from the other after the term of the agreement, and offers a number of justifications. Among them are a lengthy citation from A.F. Badshah Husain’s commentary on the Qur’an, written in 1931. Husain notes that there a situations in which permanent marriage is undesirable, in part when the woman is one “incapable of permanent marriage, for whom a permanent wedlock is nothing but misery.” Husain says further that
“Nothing can be more cruel than to marry one day on promise of an all-life union and to cast away the next day on some fantastic reason. … it is infinitely better for him to marry for short periods and to extend time later if it suits the, so that the other party may know of its true position. It wants that persons who are not sure that they will abide by their contract for their whole life should not deceive the other by an unexpected divorce. It is really meant to put a stop to this nasty practice which is so much growing in this modern civilization.” (Citing The Holy Qur’an, Lucknow 1931; I have been unable to view this work).
Note that Husain is writing a half century before the Iranian Islamic Republic.
Alongside the Qur’an, Islamic practice is based on reports about what Muhammad said, did or accepted tacitly when done in his presence. Shi’a’s also privilege similar reports ascribed to Ali and his descendants. Reports about the acts, statements, or agreements of early Muslims, who knew Muhammad or Ali, often also quoted as having some value.
Normally, the next stage in discussing any matter of Islamic law would be to examine sayings attributed to the Prophet Muhammad and to other early Muslims.
The situation is clear enough for our purposes: there are ample attestations that “temporary marriage” was practiced in the times of Muhammad, and at least on some occasions, had his blessing; that Umar—the second caliph–cancelled it. Shi’a revile Umar as an imposter, and consider mut’a to continue to be valid. Shi’a consider that it is supported by the Qur’an test cited above, and by the references to Muhammad and Ali allowing it.
Ayatollah Ruhollah Khumayni—the leader of the Iranian Islamic Revolution—published a book called Risalet Tawzih al-Masael “A Clarification of Questions.” As explained by the translator, J. Borujerdi, this is a stereotypical work—the answers offered by Khomeini are pretty much the same as are offered throughout the relevant Shi’a literature.
Questions 2421ff. concern the “concubine” (mut’eh) or “formula [woman]” (seegheh) wife; terms defined before Question 2363 (p. 311). Among the stipulations are:
2423: If a woman who becomes a formula [woman] conditions that the husband has no intercourse with her, the contract and the condition are correct and the husband can only get other pleasures from her…
- A formula woman, though she becomes pregnant, has no right to sustenance.
- A formula woman has no right to sleep with the man and will not inherit from the husband, nor the husband inherits from her.
- If the formula wife did not know that she has no right to sustenance and to sleep with her husband, her contract is correct, and she shall find no right upon her husband for her ignorance.
- A father and a paternal grandfather can marry a woman to his minor son for a period of one or two hours for the purpose of becoming intimate….
- If the man spares the woman the term of the concubinage he must give her all those things they had agreed upon if he has had intercourse with her, and if not he must give her half of that.
2432 A man can (permanently) contract for himself the woman who was his concubine and whose waiting period [the period she must wait after the end of a marriage if it was consummated] is not yet over.
The next Question begins a section entitled “Precepts of Looking”
- A man’s look at the body of a woman who is a stranger, whether or not with the intention of pleasure, is unlawful. Further it is an obligatory caution that he does not look even without the intention of pleasure [In other words, it is unlawful to look, and it is obligatory to avoid looking]. (These Questions are pp. 319-320).
This is typical of modern Iranian practice: temporary marriage may be sexual, but also may be asexual, and may be followed by “permanent” marriage. It can be with a minor and for a short period of time, only for the purpose of becoming intimate. It involves payment to the woman, reduced if no sexual activity has occurred, and does not involve inheritance or the requirement of a mutual household. These questions do not talk about renewal of terms of concubinage, but state that a permanent marriage can contracted after the end of a temporary marriage. Finally, there are “Precepts of Looking” which are responsible for temporary marriages even when no sexual activity is involved. In Iranian society, even looking at fully clothed persons of the other sex may be considered to fall within the type of activity described in this passage.
Classic Shi’a jurisrudence sometimes praises the mut’ah or “pleasure” marriage as a type of relationship found in the Qur’an and allowed by Muhammad and Ali. Although some classic cases of “99 year” mut’ah marriages are reported, the discussions make it clear that the term applies equally well to relationships lasting a few days or even for an hour or two, whose only purpose is intimacy. By definition, the parties do not establish inheritance or financial support beyond the terms of the contract for the temporary relationship: a pregnant mut’a wife is not even entitled to sustenance. Moreover, she is not entitled to assume that she has any such rights, and the man can “spare” her part of the period they agreed upon—without any divorce or decree—as long as he pays what he agreed to if they have had sexual intercourse.
Given the strictures about “looking” at persons of the opposite sex, as well as the positive attitude towards it in Shi’a Islam, it is easy enough to see why this practice is fairly common in modern Iran. Yet, any “pleasure” or “formula” relationship undertaken for a relatively short period of time is far short of the definition of marriage in Sunni Muslim most other non-Shia environments. The differences involve such things as the nature of inheritance, the lack of divorce, and in reality, often the lack of a common household. The typical arrangement is for a few hours, days or weeks, but even when there is a long-term mut’a arrangement such as a 99-year marriage, in practice, a lifetime commitment, the mut’a arrangements remain distinct from those of a permanent marriage.
Marriage is considered in our society and in Federal legislation to be an institution in which one man and one woman are married until death, legal separation or divorce. They are assumed to establish a joint household, to have various rights of inheritance and succession, rights to sustenance and so forth. None of these conditions apply to the “pleasure wife” in Shi’a countries, indicating that such relationships should clearly not be considered to be “marriage” in the U.S. definition of the term.
University of Wyoming.
 In the margin on vol. 6 p. 122 in the edition of al-Qastallani’s commentary of al-Bukhari.
 Boulder: Westview, 1984.