Marriage Law in Islam vs Australian and Canadian Law

Faiyaz M. Khan

With the growing populations of Muslims living in Australia and Canada, estimated to be 3.2 per cent[1] and 4.9 per cent[2] of the population at the last census respectively, the validity of Islamic marriages, their legality and recognition are important considerations for today’s Muslims. This paper will first outline the elements of a valid Sunni Islamic marriage according to Islam’s sacred sources: the Qur’an and hadith, as well as classical and modern scholarly opinions. These essential elements are offer, acceptance, consent, witnesses, guardianship, and dowry for the bride. Secondly, the prerequisites of a civil marriage under Australian and Canadian law will be defined, specifically discussing marriageable age, consent, and who can be a witness to a marriage. Additionally, Islamic marriage prerequisites will be compared to Australian and Canadian civil marriage laws to establish their compatibility. Finally, contemporary scholarly opinions on the permissibility of civil marriages will be discussed and whether Muslims living in the West need to choose between having a civil marriage ceremony or a nikah, or should they do both.

Islamic Marriage

The Qur’an, “the foundation of all Islamic laws,”[3] encourages Muslims to marry in Surah Nur where it declares, “Marry the unwed among you and the virtuous among your slaves, male and female.”[4] Moreover, the Prophet Muhammad also stressed that marriage was part of his sunnah and discouraged Muslims from abandoning marriage, he emphasised: “Marriage is part of my sunnah, and whoever does not follow my sunnah has nothing to do with me.”[5] Islam promotes marriage as it fulfils the need for sexual intimacy, starting new families and establishing new bonds of kinship.[6]

The Islamic marriage contract is not a sacrament, but some scholars consider it an ibadah (an act of worship)[7] or a “divine institution,”[8] as the Prophet said, “When a man marries he has fulfilled half of the religion.”[9] However, its contractual elements and functions categorises it under mu’amalat, civil transactions in classical fiqh writings;[10] thus, in spirit it is a religious duty and in form it is a civil contract.[11] As such the Islamic marriage contract, like any contract of sale has two main requirements: the offer (ijab) given by one party and the acceptance (qabul) by the other party.[12] As offer and acceptance are usually done verbally, Shafi’i insisted that specific words like nikah must be used, while Abu Hanifa and Malik permitted words like ‘gift’ which have the same legal meaning.[13]

The bride’s consent is a topic of much discussion among scholars, as it depends on whether she is a virgin and has reached puberty, which is the age of majority in Islam.[14] The scholarly consensus is that the bride who is sane, has reached puberty and is a non-virgin must give her consent to the marriage for it to be valid;[15] as the hadith makes it clear that she has “more right concerning herself than her guardian.”[16] This gives her the authority to accept or reject an offer of marriage on her own behalf. According to Abu Hanifa, Abu Yusuf, Muhammad Shaybani, Thawri, Awza’i, and Abu Thawr, if the bride is sane, a virgin and a major, her consent must be sought; [17] as the Prophet advised that “the virgin should be asked for permission, and her permission is her silence.”[18] Moreover, Bukhari asserts that the “father or guardian cannot give a virgin or matron in marriage without her consent,”[19] and that the marriage is invalid if she objects, citing the case of Khansa bint Khidam Al-Ansariya whose marriage was invalidated by the Prophet as she was “averse to it.”[20] Furthermore, As-Sa’dee argues that a woman cannot be forced to marry a religious man even if both parents agree to it.[21] Although Malik, Shafi’i and Ibn Abi Layla argued that a virgin who was a major could be forced by her father to marry.[22]

The wali or male guardian must be present at the wedding ceremony for it to be valid, as the Prophet declared that “[t]here is no marriage except with (the consent of) a guardian.”[23] Therefore, Shafi’i and Malik require a wali to be present, while Abu Hanafi, Zufar, Sha’bi and Zuhri allow a bride and groom of equal status to marry without a wali.[24] Most scholars agree that the wali is either the bride’s father or her paternal grandfather,[25] as according to Shafi’i and the Hanafis, other relatives lack the affection to uphold her best interests.[26] On the other hand, only Hanafis allowed women to be a wali, including the bride’s sister, her mother and her maternal aunt.[27]

Furthermore, Islam also permits the marriage of minors,[28] that is individuals who have not reached puberty or do not showing any signs of having reached puberty;[29] as Prophet Muhammad married Aisha when she was six years old and consummated the marriage when she was nine.[30] Moreover, chapter headings in canonical hadith texts for the above hadith by Bukhari,[31] Abu Dawud,[32] Nasa’i[33] and Ibn Majah[34] all indicate the permissibility in Islamic law of fathers arranging the marriage of their minor daughters. To further emphasise the point, commentaries on these hadiths assert that it is “perfectly valid in Islam,”[35] and that there is “absolutely no difference of opinion”[36] regarding this issue being legal, although one commentary states that the father needs a legitimate reason for exercising his “right to marry off his daughter in her young age.”[37]

However, this is disputed by modern research which not only re-examined classical sources like hadith literature, sira (Prophet’s biography), tafsir (Quranic exegesis), and ilm al-rijal (Critical study of hadith narrators), but utilised a multidisciplinary approach bringing together historical, linguistic, scientific and medical knowledge to postulate Aisha’s age to be much older when she got married.[38] Moreover, Amin constructs a case to weaken the hadith of Aisha’s age by using sira and ilm al-rijal sources,[39] while also presenting tafsir and linguistic evidence of the presence of medical conditions which would prevent many women in the 7th century from menstruating,[40] which she argues demonstrates that the Qur’an does not advocate marriage of prepubescent girls when it states about divorce, “so too for women who have not menstruated.”[41] Amin’s arguments are compelling in light of modern Islamic scholarship on maqasid or higher aims of Islamic law, together with the dangers posed by sexual intercourse and childbirth on a minor’s health and wellbeing.[42]

Most jurists also require there to be two just male Muslim witnesses to be present at the marriage ceremony.[43] The Hanafis stipulate that there must be two major male witnesses, or one man and two women witnesses for the marriage to be valid;[44] relying on the verses of the Qur’an which require witnesses for a contract, it states, “Summon two witnesses from among your men. If two men are not at hand, then a man and two women.”[45] Moreover, Malik reports that Umar ibn Khattab did not recognise a marriage where the two witnesses were a man and a woman.[46] Some scholars, including Malik and Ahmad ibn Hanbal, assert that publicising the marriage is sufficient, thus, dispensing with the need for witnesses.[47] While the consensus among Islamic scholars is that if witnesses are present and the marriage is publicly announced it is a valid marriage, conversely if both are missing it is invalid by scholarly consensus.[48] On the other hand, Shawkani approves of the need for witnesses, but he acknowledges that the hadiths that are used as proof are weak.[49]

The marriage contract can specify a dowry (mahr) to be given by the groom to the bride either on the wedding day or it can be deferred to be given later;[50] as the Qur’an instructs grooms to “[g]ive women their dowry,”[51] and also to “render them their dowries in kindness.”[52] While Islamic scholars agree that mahr is an obligation of the groom, it does not invalidate the marriage contract if it is not specified or mentioned during the marriage ceremony.[53] Although Sadlaan argues that it is recommended (sunnah) to mention it at the ceremony to avoid any future disputes concerning it.[54] According to Mirpuri, if an amount for the mahr is not agreed upon by the parties at the marriage ceremony, then her mahr is to be calculated based on the mahr of other women in her family.[55] Moreover, Ibn Rushd asserts that it is impermissible for parties to a marriage to agree to relinquish the payment of mahr.[56]

The bride and groom must also comply with certain conditions to ensure that they are not forbidden to marry each other due to either being in a close family, marital or milk relationship.[57] There are also temporary conditions which may prevent parties from getting married, these include the groom being already married to four women,[58] and the bride being in her iddah, which is the compulsory waiting period for recently divorced or widowed women.[59]

Regarding close blood relatives, a Muslim man cannot marry his mother, paternal and maternal grandmothers, daughters, granddaughters, sisters, half-sisters, paternal and maternal aunts, and his nieces and grandnieces from the daughters and granddaughters of his brothers, half-brothers, sisters, and half-sisters.[60] Furthermore, marital relationships also are a prohibited category in Islam which forbids a Muslim to marry his stepmothers, step-grandmothers, daughters-in-law, granddaughters-in-law, mothers-in-law, grandmothers-in-law, stepdaughters, step-granddaughters and sisters-in-law while their sister is still married to him.[61] The third category of prohibition is due to milk relationships, which is when a woman breastfeeds an infant for a certain duration after which that child is regarded as her son or daughter. As such, all the people prohibited for her biological children to marry due to blood relationships are also prohibited for that child;[62] as the Prophet said that “[w]hat becomes unlawful through breastfeeding is that which becomes unlawful through birth.”[63] Islamic scholars differed on whether milk relationships prohibited marital relationships too.[64] Therefore, Islam forbids Muslims to wed people in any of these three categories.[65]

Islamic law highly recommends Muslims to marry from within the Muslim community,[66] as the Qur’an encourages the believers to “[m]arry the unwed among you.”[67] As such Muslim men are to marry Muslim women and are also allowed to marry Christian and Jewish women;[68] however, Islamic scholarly consensus agrees that Muslim women can only marry Muslim men.[69] The Qur’an says, “Licit too are chaste women from among the believers and chaste women from among the People given the Book before you;”[70] thus, in principle Islam does not encourage interfaith marriages,[71] as it prefers Muslims to marry chaste believing women. Nevertheless, Muslim men can marry Christian and Jewish women, provided she is a morally upright person and does not engage in sexual promiscuity.[72]

Civil Marriage in Australia and Canada

Both Australia and Canada have national statutes that govern the validity of civil marriages: namely the Marriage Act 1961 and the Civil Marriage Act 2005 respectively. The Australian law defines marriage in section 5 as “the union of 2 people to the exclusion of all others, voluntarily entered into for life;”[73] whereas, the Canadian law states in section 2 that “marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.”[74] Both jurisdictions specify consent and marriageable age of the parties to be of paramount importance.[75] Additionally, Australia also requires an authorised celebrant,[76] and two witnesses “over the age of 18 years” to solemnise the marriage;[77] while the Canadian Civil Marriage Act has no such requirement, every Canadian province and territory has their own laws requiring who can solemnise a marriage[78] and the requirement for two witnesses. In Prince Edward Island,[79] Yukon,[80] Northwest Territories,[81] Nunavut,[82] and Alberta there must be “at least 2 credible witnesses who are adults;”[83] in Saskatchewan “at least 2 witnesses, each of whom is at least 18 years of age;”[84] in Manitoba “at least 2 credible witnesses;”[85] in British Columbia[86] and Ontario “at least two witnesses;”[87] in Quebec “in the presence of two witnesses;”[88] in New Brunswick in “the presence of two or more witnesses who have attained the age of majority;”[89] in Newfoundland and Labrador[90] and Nova Scotia there needs to be “at least two witnesses, each of whom shall be at least sixteen years of age.”[91]

Australia’s marriageable age is 18,[92] while Canada’s minimum age of marriage is 16,[93] therefore, it is illegal in Australia to marry anyone below the age of 18 without judicial approval,[94] and in Canada it is illegal to wed anyone below the age of 16.[95] In Australia, where a party to the marriage is 16 or 17 years of age, parental consent and the approval of a judge or magistrate is required to authorise the marriage.[96] While in Canada each province and territory has its own marriageable age and authorisation requirements. In British Columbia,[97] Nova Scotia,[98] Newfoundland and Labrador,[99] Yukon,[100] Northwest Territories,[101] and Nunavut[102] the age of marriage is 19, with anyone 16 to 18 years of age requiring parental consent to get married. All remaining Canadian jurisdictions namely Alberta,[103] Saskatchewan,[104] Manitoba,[105] Ontario,[106] Quebec,[107] New Brunswick,[108] and Prince Edward Island,[109] require both parties to be 18 years of age, and if one of them is 16 or 17, they must get their parents’ consent in writing. The laws also provide for waiving parental consent, although this can only occur with the court’s permission.

Notwithstanding the marriage laws of each country, both countries also recognise de facto or common-law relationships.[110] Australian law outlines the criteria to establish whether a de facto relationship exists,[111] and once that is confirmed the parties in a de facto relationship have the same rights as a married couple.[112] Some circumstances which the courts have to consider, include the length of the relationship, whether the couple are living together, the existence of a sexual relationship, the couple’s financial arrangements, caring for children, and owning property together.[113] On the other hand, Canada recognises a common-law relationship once the couple have lived together for a year and have a sexual relationship.[114] The laws in Canada do not give couples in a common-law relationship the same rights as married couples.[115]

Australian and Canadian laws also define people who cannot wed each other due to close kinship or adoption, as their marriage would be void.[116] Both Australian and Canadian legislation prohibit marriage between a person and their ancestor, or descendant, or whole and half-blood sibling, as well as those in an adoptive relationship whether as a parent or a child.[117] Moreover, Canadian law declares all such marriages to be void;[118] while marriages between individuals “related by consanguinity, affinity or adoption is not invalid by reason only of their relationship.”[119]

Similarities and Differences Between Islamic Marriage and Civil Marriage in Australia and Canada

The first major similarity is that both an Islamic marriage and a civil marriage require consent from the bride and groom.[120] The Australian Marriage Act states that a civil marriage is entered into “voluntarily”[121] and the Canadian legislation emphases “free and enlightened consent”[122] of the couple. However, some scholars permitted the wali to marry a woman who was a virgin without her consent,[123] which would not be permitted under Australian and Canadian law, as well as by most Muslim jurists.[124] Furthermore, Amin equates qabul of the bride or groom with consent, which is a strong argument for consent to be a principal requirement in an Islamically valid marriage.[125]

Furthermore, Islamic and civil marriages require parental approval where the parties are legally underage or inexperienced to make such an important life changing decision as getting married. In Australia, anyone who is 16 and below 18 years of age needs their parents’ consent and the approval of a judge or magistrate to get married;[126] whereas, all the provinces and territories in Canada require parental consent where one of the parties to a marriage is below 18 or 19 years of age.[127] As such, both Islam and civil marriage legislation wish to safeguard the interests of individuals who perhaps do not have the life experience and maturity to protect their own interests.[128] Alternatively, in Australia, a couple below the age of 18 but having reached the age of consent,[129] which is either 16 or 17,[130] can legally be in a de facto relationship.[131] This would mean that once the nikah was done, a couple who were both the age of consent, could start living together as de facto husband and wife, and after two years of cohabitation, the law would give them the same rights as a legally married couple.[132]

The concept of wali and the legal condition of parental approval for marriage of young people has similar objectives of protecting the rights of those underage, inexperienced and naïve, as they may not speak up to assert their own legal rights.[133] While civil marriage laws only grant parents this right, in Islam the people who can be a wali are the bride’s closest male relatives,[134] according to the Shafi’i school of thought the wali can only be the father, paternal grandfather, brother, brother’s son or paternal uncle;[135] for the Hanafi school of thought it is only the father, paternal grandfather, or brother who can act as wali based on affection and being closely related to the bride,[136] which also includes her mother, sister and maternal aunt.[137] The Maliki school of thought gives sons priority, followed by other close male relatives based on the Islamic laws of inheritance.[138] As such, a non-Muslim cannot be a wali,[139] as the Qur’an makes it clear that, “God shall grant the unbelievers no ascendancy over the believers;”[140] additionally, a woman also cannot be a wali,[141] as the Prophet said, “No woman should arrange the marriage of another woman.”[142] Thus, Islam provides a detailed criteria of who can be a wali, while civil laws only gives parents this right.

In the event that parents are deceased, or unavailable, or refuse to give consent on unreasonable grounds, a person in authority can take that role and give consent. In Australia and Canada this authority is given by law to the courts,[143] whereas Islamic law gives it to the sultan, the judge, or even the local imam in cases where the bride is in a foreign country, or is a new Muslim, or has no close Muslim male relatives.[144] Thus, both Islamic and civil laws are similar in their aim to protect the interests of young people who are getting married.

Another similar element to a valid Islamic and civil marriage is the requirement for witnesses. Although the purpose of why witnesses are required differ, Islamic law needs witnesses to avoid secret marriages,[145] while Australian and Canadian laws need them to solemnise the marriage. Witnesses to a Muslim marriage must be two trustworthy male adults, according to the Shafi’i and Hanbali schools of thought.[146] Women can be witnesses only according to the Hanafi school of thought.[147] Whereas, Australia and Canada civil marriage laws only have age requirements with some Canadian jurisdictions also requiring “credible witnesses.”[148]

Both Islamic family law and marriage statutes in Australia and Canada have restrictions on people who cannot get married to each other. In Australia it is illegal for a person to marry their “parent, grandparent, child, grandchild, brother or sister;”[149] similarly, Canada prohibits marriage between people who are “related lineally, or brother or sister or half-brother or half-sister.”[150] The Canadian statute also makes it clear that people related to each other by “consanguinity, affinity or adoption are not prohibited from marrying each other by reason only of their relationship.”[151] Thus, Islamic family law has a much broader scope of people a Muslim cannot marry, as it includes blood, marital and milk relationships,[152] which also includes the prohibited relationships identified by Australian and Canadian legislation.

Regarding adoption, both Islamic family law and Canadian law do not regard adoption as a prohibited category for marriage. Adoption in Islam involves taking care of orphans; however, they cannot take the family name of their foster parents, nor are they to inherit from them;[153] for the Qur’an states, “call them by their fathers’ names: this is more fair with God.”[154] This verse was revealed regarding Zayd ibn Harithah, who was the Prophet’s foster son, when the Prophet married Zayd’s former wife, Zaynab bint Jahsh, people objected to it, so Allah revealed the verse to differentiate between foster and biological children.[155] Thus, adopted children are to be brought up with the knowledge that they are not the foster parents’ biological children,[156] as the Qur’an further proclaims, “nor has He made your adopted children to be like your true children.”[157] The Assembly of Muslim Jurists of America while approving of adoption in Western countries stressed that the relationship between the foster family and the adopted child is only one of care and upbringing and that it does not create kinship ties.[158] Moreover, they are eligible to marry their foster siblings; and that as they reach puberty the Islamic etiquette of modesty must be followed, with adopted females observing hijab and the adopted males not being in seclusion with female members of the foster family.[159] Therefore, only Australian law prohibits marriage between an adopted child and their adoptive parents,[160] under the law it does not matter whether the adoption took place in Australia or overseas.[161] This means that adopted children who are not biologically related to each other in a prohibited relationship can marry each other, and technically there is no prohibition of adopted children marrying their adoptive grandparents or their grandchildren.[162]

A significant difference between Islamic family law and marriage statutes of Australia and Canada is that same-sex marriage is not recognised by the former, but both the latter countries permit it. In 2005 Canada passed legislation to become the third country in the world to allow same-sex marriage,[163] while Australia amended its Marriage Act in 2017 permitting same-sex marriage.[164] On the other hand, Islam does not permit homosexuality and considers it a major sin,[165] as the Qur’an recounts how Prophet Lut admonished his people who had normalised homosexuality, saying to them, “Do you commit an indecency that no people anywhere have ever committed before you? You go lusting after men rather than women. You are indeed a people depraved.”[166] Furthermore, Islamic law views homosexual acts as a crime that has capital punishment according to a prophetic tradition.[167] As such, Muslim scholarly consensus agrees on the prohibition of anal sex.[168] Additionally, sexual contact between women is also proscribed in Islam.[169] Therefore, Islamic marriages are between men and women, which makes vaginal sexual intercourse lawful which in turn promotes procreation[170] – one of the primary goals of marriage.[171]

Moreover, another major difference is that Islam permits polygyny, while the legal definition of marriage is monogamous in both Australia and Canada.[172] Islam permits a Muslim to marry up to four wives, as the Qur’an states, “Marry whoever pleases you among women – two, three or four; but if you fear you will not be fair to them all, then one only.”[173] Some modern scholars disagree, claiming that polygyny is a rare exception due to the requirement of equal treatment between the wives by the husband which realistically cannot be met.[174] Furthermore, according to Reda, a more accurate interpretation of the Qur’an using linguistics, history, ethics, social justice and Ibn Taymiyyah’s hermeneutics of using the Qur’an to interpret itself, all indicate that ultimately the feminist position is correct – that Islam favours and encourages only monogamy.[175] Nevertheless, it is difficult to reconcile this position with the practice of the Prophet, his companions and 1400 years of Islamic scholarship which permits polygyny by consensus.[176]

On the other hand, Australian law declares that marriage is “the union of 2 people to the exclusion of all others,” and the Canadian law has similar words to the same effect.[177] Notwithstanding, another Australian statute in an attempt to include the broadest definition of de facto relationships has also included polygamous relationships,[178] which means that while technically they are recognised, women who are parties to polygamous marriages do not have equal status and rights as a wife whose marriage is registered as a civil marriage under the law.[179] This creates an unjust system where some women are only technically recognised but in reality not given an equal footing before the law in terms of inheritance, maintenance, divorce and property settlement.[180]

Moreover, the same act also recognises polygamous marriages that were entered into outside of Australia, provided that that country recognises polygamous marriages.[181] This provision is also to provide the family law courts with jurisdiction to deal with any family law matters that may arise from such unions. Unfortunately, again it does not provide women in polygamous marriages with equality, nor does it recognise polygamous marriages entered into in Australia as a civil marriage. Conversely, Canada has a more uncompromising position,[182] introducing federal legislation to outlaw polygamy, making it is a crime to be part of a polygamous marriage[183] – even if it was entered into only in a religious ceremony.[184] This means that Canadian Muslim women cannot be de facto wives in a polygamous marriage.[185] Therefore, this uncompromising position would mean that men and women in polygamous marriages would have no standing before the law and could potentially go to prison.[186]

While the Canadian law does not mention intention, the Australian law provides that marriage must be “voluntarily entered into for life,”[187] which means that both parties must have the intention of entering a marriage for life. This is also the case for Islamic marriages, as most scholars agree that marriage in Islam is for life.[188] Moreover, Abu-Saud opines that “an explicit intention”[189] for life by both parties to a marriage is one of the necessary conditions to a nikah.[190] The Hanbali school of thought however, allows a man to enter into a marriage with the intention of divorce at a later unspecified date, provided all the conditions of the nikah are met.[191] The scholars who hold this view differentiate it from mut’ah (temporary marriage), as the intention is only known to Allah and the groom, and provided he has not stipulated a timeframe for the duration of the marriage contract.[192] Nevertheless, the Fiqh Council of the Muslim World League and Ibn Uthaimin disagreed with this opinion, asserting that such a marriage is based on deception to the bride and her family, which is prohibited in Islam.[193] They further reiterated that such marriages were against the spirit of Islam and would result in men abusing it, leading to further transgressions of Allah’s laws.[194]

Finally, Australian and Canadian law requires a civil marriage to be solemnised by a religious representative or an authorised person,[195] this is not the case for Islamic marriages which does not need the presence of an imam for the marriage to be valid.[196] The presence of an imam is not a condition of an Islamic marriage according to any Islamic jurisprudential school of thought.[197] Although many imams in the West are also registered by law to conduct both civil and religious marriages.

Which Type of Marriage is Sufficient for Muslims in the West?

According to some contemporary scholars, as long as the essential conditions of a nikah are met, a Muslim couple can have a civil marriage as recognised in their country of residence.[198] Some Hanafi scholars agree that for a civil marriage to be valid in Islam, there must be a proposal and an acceptance in the presence of two male witnesses;[199] although other scholars prefer Muslims in the West to marry at Islamic centres and avoid having a civil marriage altogether.[200] Nonetheless, the European Council for Fatwa and Research recommends that Muslims who get married in the West to have both ceremonies done: the nikah and a civil marriage, so that it is registered in their country of residence.[201] The council argued that just having the nikah performed, or the civil marriage registered on its own, would result in the parties losing some of their rights and protections either under Islamic family law or under the laws of their domicile jurisdiction.[202] Moreover, the Assembly of Muslim Jurists of America affirmed that civil marriages in America did not fulfil the requirements of an Islamic marriage, so while the marriage is recognised as valid, it is seen as “a marriage with suspected flaws.”[203] Thus, the assembly also recommends that after registering the civil marriage, couples should also perform the nikah.[204]

This is because there are matters that a civil marriage will not secure for a Muslim bride, these include the right to mahr, the protection of a guardian and ensuring that she does not fall in any of the prohibited three categories of those women the groom cannot marry. On the other hand, a civil marriage ensures that if the marriage breaks down in the future, then getting a legal divorce is easier, as well as dealing with child custody matters, maintenance and inheritance. As such, the fatwa issued by the European Council for Fatwa and Research is the most appropriate opinion for Muslims living in the West, which is for couples intending to marry to have both the nikah and the civil marriage ceremonies. This ensures that married couples living in Australia and Canada in particular, and in the West in general, to have their rights and protections secured in Islamic family law and in the laws of their country of residence.[205] Moreover, the secular laws only focus on a person’s physical and material needs, while Islamic laws also govern and cater for a Muslim’s spiritual and social welfare.[206] In addition, Muslims living in Australia and Canada are to abide by the laws of these countries, so long as the laws do not force them to sin or break Islamic laws.[207] Therefore, Australian and Canadian Muslims ought to perform both ceremonies if they are intending to get married, so as to safeguard their rights under both religious and secular laws,[208] especially since many imams are registered to solemnise civil marriages too.[209]

Conclusion

Marriage is one of the most important decisions a couple will make in their lives,[210] hence, they need to be afforded the best advice which protects both their interests and welfare and ensures that they are starting their life together with the best possible preparation. By advising couples who are about to get married to have both the nikah and the civil marriage contract, it will preserve their rights both under the laws of the country of residence, as well as Islamic family law. This is in line with the Prophet’s advice to “[m]ake things easy for the people and do not make it difficult for them,”[211] as if there are any marital problems in the future, they will have both secular and religious recourse to settle the matters between them. Ultimately, Australian and Canadian laws regarding marriage are compatible with Islamic family law in terms of their essential elements and validity, so Muslims will be able to comply with those laws without sinning or breaking Islamic laws.

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[1] Australian Bureau of Statistics, “2021 Census Shows Changes in Australia’s Religious Diversity,” Australian Bureau of Statistics, June 28, 2022, https://www.abs.gov.au/media-centre/media-releases/2021-census-shows-changes-australias-religious-diversity.

[2] Fabian Dawson, “Islam Now Second Most Popular Religion in Canada,” New Canadian Media, October 27, 2022, https://newcanadianmedia.ca/islam-now-second-most-popular-religion-in-canada/.

[3] Azizah Y. Al-Hibri, “Marriage and Divorce: Legal Foundations,” in The Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (New York: Oxford University Press, 2009), 3:493.

[4] Qur’an, 24:32. Tarif Khalidi’s translation of the Qur’an has been used for this paper.

[5] Muhammad ibn Yazeed ibn Majah, English Translation of Sunan Ibn Majah, trans. Nasiruddin Al-Khattab, ed. Huda Khattab (Riyadh: Maktaba Darussalam, 2007), 3:58, no. 1846.

[6] Abu Hamid Muhammad Al-Ghazali, Revival of Religion’s Sciences: Ihya Ulum Ad-Din, trans. Mohammad Mahdi Al-Sharif (Beirut: Dar Al-Kotob Al-Ilmiyah, 2011), 2:39.

[7] Kecia Ali, “Marriage in Classical Islamic Jurisprudence: A Survey of Doctrines,” in The Islamic Marriage Contract: Case Studies in Islamic Family Law, eds. Asifa Quraishi and Frank E. Vogel (Cambridge, Massachuetts: Islamic Legal Studies Program, Harvard Law School, 2008), 11; Hadia Mubarak, “Marriage and Divorce: Modern Practice,” in The Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (New York: Oxford University Press, 2009), 3:495.

[8] Hammudah Abd Al-Ati, The Family Structure in Islam, 4th ed. (Chicago: American Trust Publications, 1977), 59.

[9] James Robson, trans., Mishkat Al-Masabih (Lahore: Sh. Muhammad Ashraf, 1999), 1:660.

[10] Ali, “Marriage in Classical Islamic Jurisprudence,” 11.

[11] Ziba Mir-Hosseini, “Marriage,” in Encyclopedia of Islam and the Muslim World, ed. Richard C. Martin (New York: Macmillan Reference USA, 2004), 430.

[12] Muhammad Al-Jibaly, The Quest for Love and Mercy: Regulations for Marriage and Wedding in Islam (Arlington: Al-Kitaab & As-Sunnah Publishing, 2000), 1:58 & 87; Mir-Hosseini, “Marriage,” 430-431.

[13] Burhan Al-Din Al-Farghani Al-Marghinani, Al-Hidayah: A Translation of Al-Hidayah fi Sharh Bidayat Al-Mubtadi, 2nd ed., trans. Imran Ahsan Khan Nyazee (Islamabad: Center for Excellence in Research, 2016), 2:577-578; Ibn Rushd, The Distinguished Jurist’s Primer: Bidayat Al-Mujtahid wa Nihayat Al-Muqtasid, trans. Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 1996), 2:3; Abdullah Saeed, “Marriage, Divorce and Inheritance in Islamic Law as Presented in Ibn Rushd’s The Distinguished Jurist’s Primer: A Summary,” in Family Law and Australian Muslim Women, eds. Abdullah Saeed and Helen McCue (Melbourne: Melbourne University Press, 2013), 27.

[14] Ibn Rushd, The Distinguished Jurist’s Primer, 2: 4; Saeed, “Marriage, Divorce and Inheritance,” 27.

[15] Al-Marghinani, Al-Hidayah, 2: 595; Ibn Rushd, The Distinguished Jurist’s Primer, 2:4.

[16] Muslim bin Al-Hajjaj, English Translation of Sahih Muslim, trans. Nasiruddin Al-Khattab, ed. Huda Khattab (Riyadh: Maktaba Darussalam, 2007), 4:44-45, nos. 3476-3478.

[17] Al-Marghinani, Al-Hidayah, 2: 595-596; Muhammad Ash-Shaybani, The Muwatta of Imam Muhammad, trans. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing, 2004), 230; Ibn Rushd, The Distinguished Jurist’s Primer, 4.

[18] Al-Bukhari, The Translation of Sahih Al-Bukhari, 7:59, no. 5137; Muslim, Sahih Muslim, 4:44-45, nos. 3476-3478.

[19] Al-Bukhari, The Translation of Sahih Al-Bukhari, 7:58, no. 5136.

[20] Ibid., 7:59, no. 5138.

[21] Abdur-Rahman As-Sa’dee, “Is it Permissible to Force One’s Daughter to Marry Someone She is Not Pleased With?” in Al-Majmoo’ah As-Sa’diyah, trans. Abu Hakeem Bilal Davis, 7:349, accessed on September 12, 2023, https://www.fatwaislam.com/fis/index.cfm?scn=fd&ID=487

[22] Ibn Rushd, The Distinguished Jurist’s Primer, 2:4.

[23] Abu Dawud Sulaiman bin Ash’ath, English Translation of Sunan Abu Dawud, trans. Yaser Qadhi (Riyadh: Maktaba Darussalam, 2007), 2:521, no. 2085.

[24] Al-Marghinani, Al-Hidayah, 2:595; Saeed, “Marriage, Divorce and Inheritance,” 28.

[25] Al-Jibaly, The Quest for Love and Mercy, 1:66; Al-Marghinani, Al-Hidayah, 2:599-600; Ahmad ibn Naqib Al-Misri, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law, rev. ed., trans. Nuh Ha Mim Keller (Beltsville: Amana Publications, 1994), 520; Ahmad ibn Muhammad ibn Ahmad ibn Ja’far ibn Hamdan Al-Quduri, The Mukhtasar: A Manual of Islamic Law According to the Hanafi School, trans. Tahir Mahmood Kiani (London: Ta-Ha Publishers, 2010), 382; Saalih ibn Ghaanim Al-Sadlaan, Fiqh Made Easy: A Basic Textbook of Fiqh, trans. Jamaal Al-Din M. Zarabozo (Boulder: Al-Basheer Company for Publications and Translations, 1999), 160; Saeed, “Marriage, Divorce and Inheritance,” 27.

[26] Al-Marghinani, Al-Hidayah, 2:600.

[27] Al-Marghinani, Al-Hidayah, 2:601; Al-Quduri, The Mukhtasar, 382.

[28] Al-Jibaly, The Quest for Love and Mercy, 1:59; Al-Marghinani, Al-Hidayah, 2: 601; Ibn Rushd, The Distinguished Jurist’s Primer, 2: 4-5; Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 27.

[29] Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 27.

[30] Muhammad ibn Ismail Al-Bukhari, The Translation of Sahih Al-Bukhari, trans. Muhammad Muhsin Khan (Riyadh: Maktaba Darussalam, 1997), 7:57 & 69, nos. 5133, 5134, 5158.

[31] Al-Bukhari, The Translation of Sahih Al-Bukhari, 7:57, no. 5133.

[32] Abu Dawud, English Translation of Sunan Abu Dawud, 2:540, no. 2121.

[33] Abu Abdur Rahman Ahmad bin Shu’aib bin Ali An-Nasa’i, English Translation of Sunan An-Nasa’i, trans. Nasiruddin Al-Khattab (Riyadh: Maktaba Darussalam, 2008), 4:118, no. 3257.

[34] Ibn Majah, English Translation of Sunan Ibn Majah, 3:76, no. 1876.

[35] Ibid., 3: 77.

[36] An-Nasa’i, English Translation of Sunan An-Nasa’i, 4:118, no. 3257.

[37] Abu Dawud, English Translation of Sunan Abu Dawud, 2:541.

[38] Yasmin Amin, “Revisiting the Issue of Minor Marriages: Multidisciplinary Ijtihad on Contemporary Ethical Problems,” in Islamic Interpretive Tradition and Gender Justice: Processes of Canonisation, Subversion, and Change, eds. Nevin Reda and Yasmin Amin (Montreal: McGill-Queen’s University Press, 2020), 316-317; New World Encyclopedia, “Aisha,” New World Encyclopedia, para. 37-41, accessed on September 2, 2023, https://www.newworldencyclopedia.org/p/index.php?title=Aisha&oldid=1114807

[39] Amin, “Revisiting the Issue of Minor Marriages,” 317-321.

[40] Ibid., 322-328.

[41] Qur’an, 65:4.

[42] Amin, “Revisiting the Issue of Minor Marriages,” 334-340.

[43] Al-Jibaly, The Quest for Love and Mercy, 1:70; Al-Sadlaan, Fiqh Made Easy, 160; Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 28.

[44] Al-Marghinani, Al-Hidayah, 2:578-579; Ash-Shaybani, The Muwatta of Imam Muhammad, 232.

[45] Qur’an, 2:282.

[46] Malik ibn Anas, Al-Muwatta of Imam Malik ibn Anas: The First Formulation of Islamic Law, trans. Aisha Abdurrahman Bewley (Spain: Madinah Press Grenada, 1997), 214, no. 26.

[47] Hatem Al-Haj, trans., Umdat Al-Fiqh Explained: A Commentary on Ibn Qudamah’s The Reliable Manual of Fiqh (Riyadh: International Islamic Publishing House, 2019), 2:112; Al-Marghinani, Al-Hidayah, 2: 579; Saalih ibn Ghaanim Al-Sadlaan, The Fiqh of Marriage in the Light of the Quran and Sunnah, trans. Jamaal Al-Din M. Zarabozo (Boulder: Al-Basheer Company for Publications and Translations, 1999), 69.

[48] Al-Haj, Umdat Al-Fiqh Explained, 2:112; Mahmood Ahmed Mirpuri, Islamic Verdicts: Fatawa Sirat-e-Mustaqeem, trans. Mohammed Abdul Hadi Al-Oomeri, ed. Ajaib Khan (Riyadh: Maktaba Darussalam, 1998), 224.

[49] Muhammad bin Aliy Ash-Shawkani, Comprehensive Islamic Jurisprudence: According to the Qur’an and Authentic Sunnah, trans. Abu Aisha Murthada and Salahud-Deen Al-Iwoowee (Selangor: Dakwah Corner Bookstore, 2019), 318-319.

[50] Al-Jibaly, The Quest for Love and Mercy, 1:70-71; Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 28.

[51] Qur’an, 4:4.

[52] Ibid., 4:25.

[53] Al-Marghinani, Al-Hidayah, 2:615; Al-Misri, Reliance of the Traveller, 533; Al-Sadlaan, The Fiqh of Marriage, 12-13.

[54] Al-Sadlaan, The Fiqh of Marriage, 12.

[55] Al-Quduri, The Mukhtasar, 392; Ash-Shawkani, Comprehensive Islamic Jurisprudence, 338; Mirpuri, Islamic Verdicts, 230.

[56] Ibn Rushd, The Distinguished Jurist’s Primer, 2:20-21.

[57] Al-Jibaly, The Quest for Love and Mercy, 1:145-149; Sayyid Qutb, In the Shade of the Qur’an: Fi Zilal al-Qur’an, trans. & ed. Adil Salahi & Ashur Shamis (Leicester: The Islamic Foundation, 2001), 3:83; Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 29.

[58] Al-Jibaly, The Quest for Love and Mercy, 1:150.

[59] Al-Jibaly, The Quest for Love and Mercy, 1:151; Ash-Shawkani, Comprehensive Islamic Jurisprudence, 309; Saeed, “Marriage, Divorce and Inheritance in Islamic Law,” 29-30.

[60] Al-Jibaly, The Quest for Love and Mercy, 1:145; Qutb, In the Shade of the Qur’an, 3:83.

[61] Al-Jibaly, The Quest for Love and Mercy, 1:145-146; Qutb, In the Shade of the Qur’an, 3:83-85.

[62] Al-Jibaly, The Quest for Love and Mercy, 1:146-147; Qutb, In the Shade of the Qur’an, 3:85-86.

[63] Muslim, Sahih Muslim, 4:90, nos. 3568-3569.

[64] Ash-Shawkani, Comprehensive Islamic Jurisprudence, 328.

[65] Muhammad ibn Salih Ibn Uthaimin, “Those Whom it is Forbidden to Marry,” in Fatawa Islamiyah: Islamic Verdicts, comp. Muhammad bin Abdul-Aziz Al-Musnad (Riyadh: Maktaba Darussalam, 2002), 5:211-219.

[66] Qutb, In the Shade of the Qur’an, 12:317.

[67] Qur’an, 4:32.

[68] IslamOnline, “Why a Muslim Woman is not Allowed to Marry a Non-Muslim Man?” para. 1, accessed on September 13, 2023, https://fiqh.islamonline.net/en/why-a-muslim-woman-is-not-allowed-to-marry-a-non-muslim-man/

[69] Al-Misri, Reliance of the Traveller, 529; IslamOnline, “Why a Muslim Woman is not Allowed to Marry a Non-Muslim Man?” para. 3; The Center of Research Excellence in Contemporary Fiqh Issues, The Simplified Encyclopedia of Contemporary Issues in Islamic Jurisprudence (Fiqh): Jurisprudence of Muslim Minorities, trans. & ed. Osoul Global Center (Riyadh: Al-Imam Muhammad Ibn Saud Islamic University, 2018), art. 29, 119-126, https://islamicfiqh.net/en/books/the-simplified-encyclopaedia-of-contemporary-issues-in-islamic-jurisprudence-fiqh-2097

[70] Qur’an, 5:5.

[71] IslamOnline, “Why a Muslim Woman is not Allowed to Marry a Non-Muslim Man?” para. 1.

[72] Al-Quduri, The Mukhtasar, 378; Abdul-Aziz ibn Baz, “The Ruling on Marrying a Jewish or Christian Woman,” in Fatawa Islamiyah: Islamic Verdicts, comp. Muhammad bin Abdul-Aziz Al-Musnad (Riyadh: Maktaba Darussalam, 2002), 5:293; Abdullah Ibn Jibreen, “Two Conditions for Marrying a Jewish or Christian Woman.” in Fatawa Islamiyah: Islamic Verdicts, comp. Muhammad bin Abdul-Aziz Al-Musnad (Riyadh: Maktaba Darussalam, 2002), 5:295; Mirpuri, Islamic Verdicts, 234.

[73] Marriage Act 1961 (Australia), May 6, 1961, https://www.legislation.gov.au/Series/C1961A00012.

[74] Civil Marriage Act 2005 (Canada), July 20, 2005, https://laws-lois.justice.gc.ca/eng/acts/c-31.5/page-1.html.

[75] Civil Marriage Act 2005, sec. 2.2 & 2.3; Marriage Act 1961, sec. 11 & 23(1)(d).

[76] Marriage Act 1961 (Australia), sec. 41.

[77] Ibid., sec. 44.

[79] Marriage Act 1988 (Prince Edward Island), sec. 9(1)(c).

[80] Marriage Act 2002 (Yukon), sec. 10.

[81] Marriage Act 2017 (Northwest Territories), sec. 29(2)(c).

[82] Marriage Act 1988 (Nunavut), sec. 10.

[83] Marriage Act 2000 (Alberta), sec. 10(1).

[84] Marriage Act 2021 (Saskatchewan), sec. 5-4.

[85] The Marriage Act (Manitoba), sec. 9(3).

[86] Marriage Act 1996 (British Columbia), sec. 25(2)(b).

[87] Marriage Act 1990 (Ontario), sec. 25.

[88] Civil Code of Quebec 1991 (Quebec), sec. 365.

[89] Marriage Act 2011 (New Brunswick), sec. 25(2).

[90] Marriage Act 2009 (Newfoundland and Labrador), sec. 13(5).

[91] Marriage Act 1989 (Nova Scotia), sec. 22(3).

[92] Marriage Act 1961 (Australia), sec. 11.

[93] Civil Marriage Act 2005, sec. 2.2.

[94] Marriage Act 1961 (Australia), sec. 12.

[95] Civil Marriage Act 2005, sec. 2.2.

[96] Marriage Act 1961 (Australia), sec. 12 & 13.

[97] Marriage Act 1996 (British Columbia), sec. 28 & 29.

[98] Marriage Act 1989 (Nova Scotia), sec. 20.

[99] Marriage Act 2009 (Newfoundland and Labrador), sec. 19.

[100] Marriage Act 2002 (Yukon), sec. 40.

[101] Marriage Act 2017 (Northwest Territories), sec. 2.

[102] Marriage Act 1988 (Nunavut), sec. 43.

[103] Marriage Act 2000 (Alberta), sec. 18-20.

[104] Marriage Act 2021 (Saskatchewan), part 4.

[105] The Marriage Act (Manitoba), sec. 18.

[106] Marriage Act 1990 (Ontario), sec. 5 & 6.

[107] Civil Code of Quebec 1991 (Quebec), sec. 120.

[108] Marriage Act 2011 (New Brunswick), sec. 17(1)(c) & (d) and 20.

[109] Marriage Act 1988 (Prince Edward Island), sec. 17-20.

[110] Michelle Fernando and Olivia Rundle, “The Family Court’s Approach to the ‘circumstances’ of a De Facto Relationship,” Australian Journal of Family Law 34, no. 3 (2021): 182; Government of Canada, “Assessing a Common-law Relationship,” para. 1, last modified January 2, 2019, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-determining-spouse/assessing-common.html

[111] Family Law Act 1975 (Australia), March 1, 2023, sec. 4AA(2), https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s4aa.html

[112] Fernando and Rundle, “The Family Court’s Approach,” 182.

[113] Family Law Act 1975 (Australia), sec. 4AA(2).

[114] Government of Canada, “Assessing a Common-law Relationship,” para. 1.

[115] Ibid., para. 2.

[116] Marriage Act 1961 (Australia), Section 23(1)(b) & (5); Marriage (Prohibited Degrees) Act 1990 (Canada), sec. 2(2), December 17, 1990, https://laws-lois.justice.gc.ca/eng/acts/M-2.1/page-1.html.

[117] Marriage Act 1961 (Australia), Section 23(2) & (3); Marriage (Prohibited Degrees) Act 1990, sec. 2(2).

[118] Marriage (Prohibited Degrees) Act 1990, sec. 3(2).

[119] Ibid., sec. 3(1).

[120] Abd Al-Ati, The Family Structure in Islam, 61-62; Civil Marriage Act 2005, sec. 2.1; Marriage Act 1961, sec. 5.

[121] Marriage Act 1961 (Australia), sec. 5.

[122] Civil Marriage Act 2005 (Canada), sec. 2.1.

[123] Al-Misri, Reliance of the Traveller, 522; Saeed, “Marriage, Divorce and Inheritance,” 27.

[124] Al-Marghinani, Al-Hidayah, 2:595-596; Muhammad Ash-Shaybani, The Muwatta of Imam Muhammad, trans. Mohammed Abdurrahman and Abdassamad Clarke (London: Turath Publishing, 2004), 230; Ibn Rushd, The Distinguished Jurist’s Primer, 4.

[125] Amin, “Revisiting the Issue of Minor Marriages,” 342.

[126] Marriage Act 1961 (Australia), sec. 12-15.

[127] Civil Code of Quebec 1991 (Quebec), sec. 434; Marriage Act 2000 (Alberta), sec. 19 & 20; Marriage Act 1996 (British Columbia), sec. 28; Marriage Act 2011 (New Brunswick), sec. 20; Marriage Act 2009 (Newfoundland and Labrador), sec. 19; Marriage Act 2017 (Northwest Territories), sec. 16-19; Marriage Act 1989 (Nova Scotia), sec. 17(2) & 20; Marriage Act 1988 (Nunavut), sec. 43-45; Marriage Act 1990 (Ontario), sec. 5 & 6; Marriage Act 1988 (Prince Edward Island), sec. 19 & 20; Marriage Act 2021 (Saskatchewan), part 4; Marriage Act 2002 (Yukon), sec. 40-42; The Marriage Act (Manitoba), sec. 18 & 19.

[128] Al-Haj, Umdat Al-Fiqh Explained, 2:113-114.

[129] Australian Institute of Family Studies, Age of Consent Laws in Australia, Child Family Community Australia, May 2021, 3, https://aifs.gov.au/sites/default/files/publication-documents/2104_age_of_consent_resource_sheet_0.pdf; The Department of Social Services, Australian Government, “Types of Member of a Couple Relationships,” Social Security Guide, para. 6, last modified May 8, 2023, https://guides.dss.gov.au/social-security-guide/2/2/5/10#:~:text=A%20de%20facto%20relationship%20is,not%20in%20a%20prohibited%20relationship

[130] Australian Institute of Family Studies, Age of Consent, 3.

[131] Family Law Act 1975 (Australia), sec. 4AA(2)(g).

[132] Fernando and Rundle, “The Family Court’s Approach,” 181-182.

[133] Al-Jibaly, The Quest for Love and Mercy, 1:70.

[134] Al-Haj, Umdat Al-Fiqh Explained, 2:113; Al-Marghinani, Al-Hidayah, 2:604.

[135] Al-Misri, Reliance of the Traveller, 520.

[136] Al-Marghinani, Al-Hidayah, 2:604.

[137] Al-Marghinani, Al-Hidayah, 2:601; Al-Quduri, The Mukhtasar, 382.

[138] Ibn Rushd, The Distinguished Jurist’s Primer, 2:14-15.

[139] Al-Jibaly, The Quest for Love and Mercy, 1:66.

[140] Qur’an, 4:141.

[141] Al-Jibaly, The Quest for Love and Mercy, 1:66.

[142] Ibn Majah, English Translation of Sunan Ibn Majah, 3:79, no. 1882.

[143] Civil Code of Quebec 1991 (Quebec), sec. 434; Marriage Act 2000 (Alberta), sec. 19 & 20; Marriage Act 1961 (Australia), sec. 15-17; Marriage Act 1996 (British Columbia), sec. 28; Marriage Act 2011 (New Brunswick), sec. 20; Marriage Act 2009 (Newfoundland and Labrador), sec. 19; Marriage Act 2017 (Northwest Territories), sec. 16-19; Marriage Act 1989 (Nova Scotia), sec. 17(2) & 20; Marriage Act 1988 (Nunavut), sec. 43-45; Marriage Act 1990 (Ontario), sec. 5 & 6; Marriage Act 1988 (Prince Edward Island), sec. 19 & 20; Marriage Act 2021 (Saskatchewan), part 4; Marriage Act 2002 (Yukon), sec. 40-42; The Marriage Act (Manitoba), sec. 18 & 19.

[144] Al-Jibaly, The Quest for Love and Mercy, 1:67.

[145] Al-Haj, Umdat Al-Fiqh Explained, 2:112.

[146] Ibid., 2:115.

[147] Al-Marghinani, Al-Hidayah, 2:578-579; Ash-Shaybani, The Muwatta of Imam Muhammad, 232.

[148] Marriage Act 2000 (Alberta), sec. 10(1); Marriage Act 2017 (Northwest Territories), sec. 29(2)(c); Marriage Act 1988 (Nunavut), sec. 10; Marriage Act 1988 (Prince Edward Island) sec. 9(1)(c); Marriage Act 2002 (Yukon), sec. 10; The Marriage Act (Manitoba), sec. 9(3).

[149] Attorney-General’s Department, “Get Married,” Australian Government, para. 4, accessed on September 9, 2023, https://www.ag.gov.au/families-and-marriage/marriage/get-married

[150] Marriage (Prohibited Degrees) Act 1990, sec. 2(2).

[151] Ibid., sec. 2(1).

[152] Al-Misri, Reliance of the Traveller, 527-529.

[153] Islam Question & Answer, “Adoption in Islam and Its Types,” para. 2, last modified March 21, 2009, https://islamqa.info/en/answers/10010/adoption-in-islam-and-its-types; IslamOnline, “Islamic Ruling on Adoption,” para. 5 & 6, accessed on September 11, 2023, https://fiqh.islamonline.net/en/islamic-ruling-on-adoption/

[154] Qur’an, 33:5.

[155] Seyyed Hossein Nasr, ed., The Study Quran: A New Translation and Commentary (New York: HarperOne, 2015), 1020.

[156] IslamOnline, “Islamic Ruling on Adoption,” para. 5.

[157] Qur’an, 33:4.

[158] The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 50, 223.

[159] IslamOnline, “Islamic Ruling on Adoption,” para. 6.

[160] Marriage Act 1961 (Australia), sec. 23B(3).

[161] Ibid., sec. 23B(6).

[162] Ibid., sec. 23B(3).

[163] Associated Press, “Canada Approves Gay Marriage,” The Guardian, June 30, 2005, https://www.theguardian.com/world/2005/jun/29/gayrights; Civil Marriage Act 2005, sec. 4.

[164] Attorney-General’s Department, “Marriage Equality in Australia,” Australian Government, accessed on August 30, 2023, https://www.ag.gov.au/families-and-marriage/marriage/marriage-equality-australia

[165] Muhammad bin Uthman Adh-Dhahabi, The Major Sins: Al-Kaba’ir, trans. Mohammed Moinuddin Siddiqui, ed. M. Al-Selek (New Delhi: Millat Book Centre, 2009), 113.

[166] Quran, 7:81.

[167] Ibn Hajar Al-Asqalani, Bulugh Al-Maram:Attainment of the Objective According to Evidence of the Ordinances, 2nd ed. (Riyadh: Maktaba Darussalam, 2002), 395, no. 1044.

[168] Jonathan A. C. Brown, “Muslim Scholar on How Islam Really Views Homosexuality,” Variety, June 30, 2015, accessed on August 25, 2023, para. 7, https://variety.com/2015/voices/opinion/islam-gay-marriage-beliefs-muslim-religion-1201531047/

[169] Ibid., para. 8.

[170] Ibid., para. 4.

[171] Abd Al-Ati, The Family Structure in Islam, 2.

[172] Richards, Jenny., and Hossein Esmaeili. “The Position of Australian Muslim Women in Polygamous Relationships Under the Family Law Act 1975 (Cth): Still ‘Taking Multiculturalism Seriously’?” Australian Journal of Family Law 26, no. 2 (2012): 143.

[173] Qur’an, 4:3.

[174] Nevin Reda, “Tafsir, Tradition, and Methodological Contestations: The Case of Polygamy,” in Islamic Interpretive Tradition and Gender Justice: Processes of Canonisation, Subversion, and Change, eds. Nevin Reda and Yasmin Amin (Montreal: McGill-Queen’s University Press, 2020), 89.

[175] Ibid., 91-92.

[176] Islam Question & Answer, “Polygyny in Islam,” para. 9, last modified April 29, 2002, https://islamqa.info/en/answers/14022/polygyny-in-islam; The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 36, 151-155.

[177] Civil Marriage Act 2005, sec. 2.

[178] Family Law Act 1975 (Australia), sec. 4AA(5).

[179] Richards and Esmaeili, “The Position of Australian Muslim Women,” 143-144.

[180] Ibid.

[181] Family Law Act 1975, sec. 6.

[182] Reda, “Tafsir, Tradition, and Methodological Contestations,” 67.

[183] Zero Tolerance for Barbaric Cultural Practices Act 2015 (Canada), June 18, 2015, sec. 2, https://laws-lois.justice.gc.ca/eng/annualstatutes/2015_29/page-1.html#docCont

[184] Department of Justice Canada, “Child Abuse is Wrong: What Can I Do?” Government of Canada, December 6, 2021, para. 6, https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/caw-mei/p10.html

[185] Government of Canada, “Assessing a Common-law Relationship,” para. 17.

[186] Department of Justice Canada, “Child Abuse is Wrong,” para. 6.

[187] Marriage Act 1961 (Australia), sec. 5.

[188] The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 31, 133 & 136.

[189] Mahmoud Abu-Saud, Concept of Islam (Indianapolis: American Trust Publications, 1983), 121.

[190] Ibid.

[191] The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 31, 132.

[192] Ibid.

[193] Ibid., 134-135.

[194] Ibid.

[195] Civil Code of Quebec 1991 (Quebec), sec. 376; Marriage Act 2000 (Alberta), sec. 3; Marriage Act 1996 (British Columbia), sec. 7 & 20; Marriage Act 2011 (New Brunswick), sec. 2 & 5.2; Marriage Act 2009 (Newfoundland and Labrador), sec. 4; Marriage Act 2017 (Northwest Territories), sec. 27; Marriage Act 1989 (Nova Scotia), sec. 22(3); Marriage Act 1988 (Nunavut), sec. 7(1); Marriage Act 1990 (Ontario), sec. 4; Marriage Act 1988 (Prince Edward Island), August 1, 2023, sec. 3; Marriage Act 2021 (Saskatchewan), sec. 5-1; Marriage Act 2002 (Yukon), sec. 7; The Marriage Act (Manitoba), sec. 2 & 3(1).

[196] Ebrahim Desai, “Is it Possible to have Nikah without an Imam? Is it Compulsory for Nikah Khutbah and Can it be Done by Someone Else Such as a Hafez not Alim? IslamQA, https://islamqa.org/hanafi/askimam/17192/is-it-possible-to-have-nikkah-without-an-imam-is-it-compulsory-for-nikkah-khutbah-and-can-it-be-done-by-someone-else-such-as-just-a-hafez-not-aalim/

[197] Al-Haj, Umdat Al-Fiqh Explained, 2:107-108; Al-Jibaly, The Quest for Love and Mercy, 1:58.

[198] Muhammad ibn Adam, “Marriage at the Registry Office,” IslamQA, para. 14, accessed on September 15, 2023, https://islamqa.org/hanafi/daruliftaa/8393/marriage-at-the-registry-office/; Imran Mughal, “Is a Civil Registry Wedding Accepted in Islam?” IslamQA, para. 1, accessed on September 11, 2023, https://islamqa.org/hanafi/daruliftaa-birmingham/136260/is-a-civil-registry-wedding-accepted-in-islam/; Sayeedur Rahman, “Civil Marriage.” IslamQA, para. 2, accessed Septmber 11, 2023, https://islamqa.org/hanafi/daruliftaa-birmingham/19527/civil-marriage/; Mohammed Wahaajuddin, “Are a Civil and Islamic (Shar’i) Divorce the Same Thing?” Darul Iftaa Canada, para. 11, last modified January 9, 2023, https://fatwa.ca/are-a-civil-and-islamic-divorce-the-same-thing/

[199] Ebrahim Desai, “Does There Have to Be an Islamic Divorce If There Was a Civil Marriage Only?” IslamQA, para. 2, https://islamqa.org/hanafi/askimam/12708/does-there-have-to-be-an-islamic-divorce-if-there-was-a-civil-marriage-only/; Ibn Adam, “Marriage at the Registry Office,” para. 1-3; Mughal, “Is a Civil Registry Wedding Accepted in Islam?” para. 1-3; Rahman, “Civil Marriage.” para. 1.

[200] Islam Question & Answer, “Is Civil Marriage Accepted in Islam?” para. 8, last modified February 26, 2008, https://islamqa.info/en/answers/113867/is-civil-marriage-accepted-in-islam

[201] European Council for Fatwa and Research, “The Twentieth Ordinary Session of the European Council for Fatwa and Research” (final statement of the ordinary session for the European Council for Fatwa and Research, Istanbul, Turkey, June 24-27, 2010), resolution 3/20, https://www.e-cfr.org/en/2020/06/23/the-twentieth-ordinary-session-of-the-european-council-for-fatwa-and-research/; The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 35, 149-150.

[202] European Council for Fatwa and Research, “The Twentieth Ordinary Session,” resolution 3/20, The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 35, 149-150.

[203] The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 35, 150.

[204] Ibid.

[205] European Council for Fatwa and Research, “The Twentieth Ordinary Session,” resolution 3/20, The Center of Research Excellence, The Simplified Encyclopedia of Contemporary Issues, art. 35, 149-150.

[206] Wahaajuddin, “Are a Civil and Islamic (Shar’i) Divorce the Same Thing?” para. 9 & 11.

[207] Muhammad Ibn Adam, “Obeying the Law of the Land in the West,” Darul Iftaa, Institute of Islamic Jurisprudence, para. 3, March 5, 2004, https://daruliftaa.com/miscellaneous/obeying-the-law-of-the-land-in-the-west/

[208] European Council for Fatwa and Research, “The Twentieth Ordinary Session,” 149-150.

[209] Attorney-General’s Department. “List of Religious Marriage Celebrants Authorised to Solemnise Marriages,” Australian Government, accessed on October 3, 2023, https://marriage.ag.gov.au/commonwealthcelebrants/religious

[210] Al-Jibaly, The Quest for Love and Mercy, 1:57.

[211] Al-Bukhari, The Translation of Sahih Al-Bukhari, 8:87, no. 6125.

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