Orfi marriage, i.e. common-law marriage, was a common practice in areas with the highest illiteracy rates, especially rural ones.
People celebrated their union in accordance with Sharia requirements, namely the consent of the guardian, the presence of two witnesses, the dowry and a ceremony to publicize the marriage.
Although the contract was not written, the aforementioned conditions guaranteed the rights of spouses and children – or family rights, in other words -, since the entire village or neighbourhood witnessed the union…
Today, all Muslim countries require a written contract filed with the civil registry, which is more consistent with the Sharia. The Qur’an clearly states that contracts should be written, except for illiterate people who need to make contracts in the presence of two witnesses.
It is for this reason that most experts in Islamic law, the fuqahas, deny Orfi marriage any legal, religious or social legitimacy.
Today’s practice has nothing to do with yesteryear’s Orfi marriage that respected all the rules. In most cases, two young students would recite the Fatiha without any witnesses, and proclaim themselves to be united before God.
However, such a union does not guarantee the rights of spouses, and of the children resulting from this marriage. The wife may contract as many marriages as she wants since nothing proves that she is married. This happened in Egypt.
The same applies to the husband. Moreover, in the case of polygamy, none of the co-wives would be aware of it. One of the wives might financially help her husband buy a house, for example, while believing that the only heirs are her children.
The worst part about Orfi marriage is when the husband refuses to acknowledge paternity, thus depriving the kids of any resources and the evidence of their parentage.
Therefore, one cannot speak about the freedom of choice, because freedom involves ensuring the rights of others, especially innocent children.
In light of all these shortcomings, Orfi marriage is mere concubinage that lacks legal guarantees and recognition in Muslim countries.
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