Before the marriage contract: what the law requires, and what the conditions actually do

The date is set and the invitations go out, and then comes the only question anyone asks: which papers do we need? The questions that actually determine the effect of the contract come earlier. Who is the guardian? Who are the two witnesses? What was written into the conditions? How was the dower fixed, and when does it fall due?

None of this belongs in the signing session itself, because changing it afterwards means a fresh procedure. What follows sets out what the Personal Status Law, issued by Royal Decree No. (M/73) dated 6/8/1443H, requires, and what the Notarization Law says about who may notarise the contract.

The elements of the contract and the conditions of its validity

Article 12 of the Personal Status Law gives the contract two elements: the two spouses, and offer and acceptance. Article 13 then sets five conditions for validity: identification of the two spouses; the consent of both; the offer made by the guardian; the testimony of two witnesses; and that the woman is not permanently or temporarily prohibited to the man.

Article 16 fixes three characteristics for the offer and acceptance: they must expressly correspond; they must be joined in one session, actually or constructively in accordance with the applicable rules; and they must be immediate, neither suspended on a condition nor deferred to the future. An offer tied to something that will happen later is a promise, not a contract.

The guardian — who he is, and what if he cannot attend

The order of guardians is set out in article 17: the father, then his executor, then the paternal grandfather however high, then the son, then his son however low, then the full brother then the half-brother through the father, then their sons however low, then the full paternal uncle then the half paternal uncle through the father, then their sons however low, then the nearest agnate in the order of inheritance, then the judge. Where several guardians stand in the same degree, the one the woman designates is the one who acts.

The same article contains a categorical rule: no guardian, even the father, may marry off the woman under his guardianship without her consent, and the marriage contract must include what establishes that consent. Recording consent in the contract document is required, not advisable.

Article 18 requires the guardian to be male, of sound mind, of full age, and of the same religion as the woman; if a condition is missing, the next guardian in order acts. If the guardian cannot attend or cannot be notified, article 19 has the court transfer the authority to marry to the next guardian on the woman’s application. And where a guardian, even the father, prevents the woman under his guardianship from marrying a suitable man she has accepted, article 20 has the court carry out the marriage on her application or that of an interested party.

The recurring practical mistake here is to assume that the absence of the nearest guardian automatically passes the role to the next one. It does not. The transfer is made by the court, not by agreement among the family.

The two witnesses

Article 21 requires each witness to be a man, of full age, of sound mind, hearing the offer and acceptance and understanding what is meant by them, and to be Muslim where the husband is Muslim. “Hearing and understanding” means attendance is not enough if the witness did not hear the formula pronounced. A name on the document does not substitute for having heard it.

Notarisation, age and capacity

Article 8 makes notarisation of the marriage contract obligatory and places that duty on both spouses or either of them, and allows any interested party to apply to establish an unnotarised marriage contract.

Article 9 provides that notarisation of a marriage contract is prohibited for anyone under eighteen years of age, and that the court may permit the marriage of someone younger, male or female, if of age of puberty, after verifying that the marriage is in their interest. The route in that situation is a prior judicial permission, not a visit to the officiant.

Where insanity or mental incapacity is involved, article 11 has the court permit the marriage on the application of the guardian with authority to marry, subject to three conditions: an approved medical report on the condition, the other party’s acceptance after being informed of it, and the existence of an interest for the person concerned in the marriage.

Who may notarise the contract?

The Notarization Law divides the competence. Article 18 entrusts the licensed marriage officiant with notarising marriage contracts where both parties are Saudi nationals, or both are non-Saudis. Where one party is Saudi and the other is not, notarisation falls to the notary public (كاتب العدل) under article 11 of the same law.

Article 33 imposes a duty on the officiant that comes before the contract rather than after it: before conducting the marriage contract he must verify that the elements and conditions are present, that the impediments are absent in both parties, and that the guardian prescribed by Sharia is present. The file is reviewed before the session, and an incomplete file delays the appointment itself.

Conditions in the contract — and what they actually do

This is the point people ask about most, and the point most often misunderstood. The rule in article 27 is that the spouses are bound by their conditions — followed by the qualification many overlook: a condition does not give rise to an option to rescind the marriage contract unless it is set out in writing in the marriage contract document, or both spouses acknowledge it.

So a condition agreed orally during the engagement does not create a right of rescission unless both spouses acknowledge it. Anyone who wants their condition to have effect must have it in the contract document itself.

If one spouse fails to perform what the other stipulated, article 28 gives the stipulating party the right to seek rescission of the contract whenever they wish, unless they expressly waived that right. The article then details the financial effect: if the failure is the husband’s, rescission is without compensation; if it is the wife’s, it is against compensation not exceeding the dower.

Conditions have a limit. Article 29 draws two situations apart. If a condition inconsistent with the continuation of the marriage is stipulated, or the marriage contract is made in exchange for another marriage contract, the contract is void. Otherwise, the marriage contract remains valid and the condition alone is void where it contradicts the requirements of the contract.

A hypothetical: the parties agree on a condition about housing and place of residence, and it is mentioned in front of those present and left at that. Two years later a dispute arises. Whoever relies on the condition is asked to show that it was stated in writing in the contract document, or that the other party acknowledged it. Proving what was never written is a burden that one line in the document would have removed.

The dower — the amount is not the whole question

Article 36 defines the dower as the money the man pays the woman by reason of the marriage contract, and article 38 states that the dower is the woman’s property and she cannot be compelled to dispose of it in any way.

Article 39 deals with deferral, which is where the practical difficulty sits. The parties may agree to defer all or part of the dower. If the contract says nothing about deferral and fixes no time for delivery, it becomes payable on demand. Where deferral is stipulated: if a known term is stated, the dower falls due on that term; if the term stated is unknown, the dower is immediate; and if no time is stated at all, it falls due on irrevocable separation or on the death of either spouse.

So “the dower is deferred” with no term specified is not tight drafting. Its effect is determined by the law, not by what the parties had in mind.

Suitability and objections

Article 14 makes the man’s suitability for the woman a condition of the contract being binding rather than of its validity, assessed at the time of the contract by reference to his religious standing and to whatever custom treats as relevant. Any relative up to the third degree with an interest affected by the absence of suitability may object to the contract, and the court assesses the matter. It is a question for judicial assessment and is not settled in a family meeting.

What to prepare before the appointment

• Valid identity documents for both spouses, the guardian and the two witnesses.
• Attendance of the guardian in his statutory order, or proof that guardianship was transferred by a court decision.
• Two witnesses meeting the stated description, and confirmation that they will actually hear the formula.
• The wording of any conditions, written and reviewed before the session so it goes into the contract document.
• The dower in detail: the amount, what is immediate and what is deferred, and a term for the deferred part that leaves no room for interpretation.
• A court permission where either party is under eighteen.
• Whatever pre-contract health requirements the official channel sets — asked of the competent authority, not inferred from someone else’s experience.

The electronic route

Marriage contracts are now notarised through the Ministry of Justice’s electronic services, among them the officiant’s approval of a marriage contract notarisation and notarisation of an earlier marriage for anyone with an existing unnotarised contract. The working rule is to check the requirements for your particular case on the electronic services portal before arranging the appointment.

Questions to ask before offer and acceptance

• Is the guardian recognised by the law the one actually present? If he cannot attend, has the transfer been made?
• Are the agreed conditions written into the document, or still only spoken?
• Is the dower defined so that its term is known, or left open?
• Does the case require a court permission before notarisation?
• Is the notarising body the one competent for this type of contract?

In short

The marriage contract is a short procedure preceded by a long review, and the points to review are few: a guardian with the right standing, two witnesses meeting the description, conditions written into the document, a dower with a defined term, and a competent notarising body.

Anything that turns on contested Sharia questions, on the assessment of suitability, or on an application for permission belongs to the competent court, not to the signing session.