Is It Valid for a Woman to Stipulate in the Marriage Contract That Her Husband Must Not Marry a Second Wife? Can She Say, “You Must Not Marry Another Woman While You Are Married to Me”?

Dear Brother / Sister,

A woman may stipulate before marriage that her husband must not marry another woman while he is married to her.

Setting Special Conditions in a Marriage Contract

If, when a marriage contract is concluded, one of the spouses puts forward a condition that places an obligation on the other, and the other party accepts it, is such a condition binding?

1. A valid condition that is consistent with the nature of the contract and does not contradict the rulings of the Shariah is binding on the other party in a marriage contract.

For example, if a woman stipulates that she will live in her husband's home without his family or a co-wife, or that she will not be moved to a place beyond the distance of travel unless her family gives permission, these conditions are binding on the husband. This is because such conditions are compatible with the nature of the marriage contract.

2. If a defective condition that is incompatible with the nature of the contract or contradicts the rulings of the Shariah is stipulated, the marriage contract remains valid. However, only the condition itself is invalid. An example is stipulating an option of annulment for one of the spouses.

If there is a prohibition concerning a condition, fulfilling such a condition is considered makruh (disliked). An example is stipulating that the man one is going to marry must divorce his first wife. The Prophet (peace and blessings be upon him) said regarding this matter:

“It is not lawful for a woman to ask her husband to divorce his co-wife.” (Abu Dawud, Talaq, 2)

Conditions that violate the spouses' inalienable personal rights, such as the right to sexual relations with one another and the woman's right to maintenance, are also invalid. Examples include marrying on the condition that the woman will perform only the household chores or that the husband will not provide for her livelihood. (See Zayla‘i, Tabyin al-Haqa’iq, II/148; Ibn Abidin, II/405; al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, Damascus, 1405/1985, VII/45.)

The Presidency of Religious Affairs (Diyanet) explains the matter as follows:

According to the Hanafi school, if a woman stipulates that the man she is going to marry must not marry another woman while married to her, and the man accepts this condition and marries her, the marriage contract is valid, but the condition itself is defective (fasid). This is because the condition amounts to prohibiting something that is permissible under Islamic law. (Ibn al-Humam, Fath al-Qadir, III, 335–336; Ö. Nasuhi Bilmen, Hukuk-i Islamiyye ve Istılahat-ı Fıkhiyye Kamusu, II, p. 37.)

Accordingly, if the man openly marries another woman—with his family's knowledge, in the presence of witnesses, and without concealing the marriage—the second marriage is religiously valid. However, under the laws of our country, such an act constitutes a criminal offense.

According to the Hanbali school, a woman may stipulate that the man she is going to marry must not marry another woman for as long as he remains married to her, and the man is expected to abide by this condition.

In this case, if the man marries another woman, the woman who stipulated that he must not marry anyone else while remaining married to her has the right to go to court and seek the dissolution of the marriage, even though the second marriage itself is religiously valid, provided that it meets the required conditions. This is because such a condition made at the time of marriage must be fulfilled, and it is also consistent with the legal maxim: “A customary condition is equivalent to an expressly stated condition.” (For further information, see Ibn Qayyim al-Jawziyya, Zad al-Ma‘ad, Iklim Publications, vol. 5, pp. 213–224; Bilmen, Istılahat-ı Fıkhiyye Kamusu, II, p. 40.)

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