IS REGISTRATION OF MARRIAGE IMPORTANT?
by Noraini Md Hashim[View Writer's Profile]

Abstract
An-Nikah is a simple contractual form of marriage. It is valid upon the fulfillments of the rukun nikah(the pillars of marriage). The law does not insist upon any particular form of marriage to prove it subsistence. However, in the complex and highly mobile societies today, there is a need to have definitive formal proof of the existence of a legally valid marriage. In most of Muslims countries nowadays, registration has been introduced as to publicize the marriage contract and at the same time serve as important safeguard especially to the women and the children. Attempts to introduce registration have met with considerable opposition. Therefore, this article is to enlighten the reader on the importance of registration and the effect of the non-registration to the parties involved especially in the case of runaway marriage in Malaysia i.e.marriage without the religious office or shariah court’s permission.

Is Registration of Marriage Important?

Marriage in Islam is not only considered as an ibadah, but a responds to natural instinct to have a partner for life and to produce offspring in a legitimate manner. Imam Shafie defines it as a contract that legally allows a man and a woman to have sexual intercourse by the word nikah or marriage or any words referring to it. A more comprehensive meaning of marriage is defined by Qamhani which is a contract that legalised sexual intercourse between a man and a woman according to hukum shara’ and confers rights and duties that comes within the marriage¹.

Thus, from the above definition, it is evident that by the union of the two sexes in terms of a valid marriage will able them to achieve goodness and fulfilling the divine mandate as a Muslim and attaining tranquility and peace in life. They are clearly stated in the verses below:

And among his signs is this that He created for you mates among yourselves that ye may dwell in tranquility with them and He has put love and mercy between your hearts. Verily in that are signs for those who reflect. The Believers, men and women are protectors, to one another. They enjoin what is just and forbid what is evil.

In terms of formal requirements, the marriage is affected simply by two essential elements of offer (ijab) and acceptance (kabul)². The declarations which must be made conceptually ‘at the same meeting’³ are pronounced by the parties themselves, or by their representative (wakil) acting on their behalf, or by their guardians (wali) when they lack the capacity to contract themselves in the marriage. The first speech, from whichever side it emanates, is the offer and the second speech constitutes the acceptance. Jamal J. Nasir⁴ emphasizes that mutual hearing and understanding of the offer and acceptance are essential to establish a marriage contract. Muslim law has thererefore made provisions for contracting marriage in different languages, even sign language⁵, and a proxy marriage for example over the telephone , is possible in Muslim law. Another essential element of a valid Muslim marriage contract, except for the Shia’s⁶ is the presence of the witnesses. It has been said that this element of publicity makes the difference between lawful wedlock and fornication⁷. The particulars of this requirement depend on school tradition but the general rule is that there must be either two males or one male and two females⁸.