Woman married without a fixed dower (mufawwada)

A mufawwada is a woman married without a dower named, or on condition that she has none. ¹

The jurists agree that a dower is not a pillar of marriage, so the contract is valid without one, citing the Quranic verse on divorce before consummation and Ibn Mas'ud's ruling that she receives the dower of women like her. ^{1 2}

When the woman, being sane, adult and of sound judgement, leaves the dower out, most jurists hold the marriage valid. The Malikis, and a Shafi'i view, hold it void when the absence of a dower is made a condition, because it resembles a woman given as a gift. The Malikis say that if such a contract is made it is annulled before consummation and, after it, a dower of like women is owed. ^{2 3}

Delegation is not valid for a minor girl, a mad woman or one not of sound judgement. Where a guardian delegates without her consent, the result depends on whether he needs her permission to marry her off: if he does and does not seek it, the marriage is void; if he seeks it for the marriage but not the delegation, the marriage stands and she receives the dower of women like her. ³

A marriage is valid if the couple agree that the amount is left to her, to one spouse, to the guardian, or to a third party. The dower of like women is owed, since consent was given only to an unknown sum, which drops out for uncertainty. The Shafi'is and Hanbalis hold that a third party may not fix the dower without the spouses' consent; the Malikis treat a fixed amount by an arbiter as binding on the husband. ^{4 5 6}

She becomes entitled in one of four ways. First, the couple agree on an amount before consummation; it is halved on divorce and confirmed by consummation or death. Second, the judge fixes it, and he may neither exceed nor fall short of the dower of like women. Third, consummation: the dower of like women is then owed, and the Hanafis and Hanbalis add valid seclusion, and the Hanbalis add touching with desire; the Malikis and the newer Shafi'i view do not count seclusion. Fourth, death: most jurists owe the dower of like women, citing the report of Bi'ruwa bint Washiq, though the Malikis and a Shafi'i view owe nothing. ^{5 6 7 8}

Before consummation she may ask the husband to fix an amount, so she knows the terms on which she gives herself. If the spouses agree on an amount, large or small, it stands; the report of Uqba ibn Amir is cited for a companion who gave his share of Khaybar as dower. If they dispute, the judge fixes the dower of like women. ⁸

Until a dower is fixed, the Hanafis, Malikis, Shafi'is and Hanbalis allow a delegated wife to withhold herself from her husband; she may also withhold herself until a fixed dower is paid if it is due now. If it is deferred she may not withhold herself, as with a deferred dower named in the contract. ^{9 10}

The Hanafis and Hanbalis, and a view that is the less preferred for the Shafi'is, hold that the dower falls due by the contract itself, since a marriage cannot be without a dower and it would not settle at death otherwise. The sounder Shafi'i view and the Malikis hold that it is not due by the contract, but that she may demand that a dower be fixed, after which it stands as a dower named in the contract. ^{9 10 11}

The majority, the Malikis, Shafi'is and Hanbalis together with Abu Yusuf, hold that a fixed dower is halved if the husband divorces her before consummation, provided the separation is from him and the amount is valid, whether fixed by the spouses or by the judge. The Hanafis and a Hanbali view hold no halving applies, because the contract named no sum. ¹¹

A delegated wife divorced before consummation and before a dower is fixed is owed only a consolation payment. The majority, the Hanafis, the newer Shafi'i view and the Hanbalis hold it obligatory when the husband caused the separation, and none when she did. The Malikis and the older Shafi'i view hold it not obligatory; the dispute goes back to the wording of the Quranic verse. ^{11 12}

The jurists differ on the time whose circumstances count for fixing the dower of like women: her state at the contract, which creates the duty, or her state at intercourse. The contract places the marriage under the husband's liability, so the dower is assessed from the contract until intercourse. ¹²