Pillars means parts of something, and a thing cannot exist without its parts (1)
Pillars of marriage contract are five: The form (proposal and acceptance), spouses, a guardian, two witnesses, and dowry. (2)
The first pillar is:
Proposal and acceptance:
- The proposal of marriage that is offered by one of the spouses, showing will of concluding a marriage contract, whether the proposal was offered by the groom, his guardian, or his representative or by the guardian of the bride.
- Acceptance is the reply of the second party to the proposal of the first party, showing his consent of marriage. (3)
The form of proposal and acceptance should contain the words of "marriage" or its derivations and whether they are in the past, in present tense, or the proposal is in the order form and acceptance is in the past tense. (4)
The ruling on concluding marriage by writing:
The majority of scholars adopted the view that proposal and acceptance are valid by writing. Therefore, if a person is absent and it is difficult for him to attend the session of concluding the marriage contract and sends a letter to the bride telling her that he wants to marry her and she reads it before the witnesses or mentions its content before them, the marriage contract is valid. The evidence to the permissibility of concluding marriage by writing is the Hadith that was reported from the Messenger of Allah (peace be upon him) that he wrote to the Negus of Abyssinia asking for the hand of Um Habibah (may Allah be pleased with her) in marriage, thereupon he gave her hand to him by proxy and gave dower to her on his behalf.
There are some conditions to conclude marriage by writing, they are as follows:
A groom must be absent from the session of concluding the marriage contract.
The writing must be obvious and in clear words.
The writing must address the bride of her guardian and bears the signature of the groom to prove its authenticity.
A bride must read aloud the text of the letter or mention its content at the presence of the witnesses then she should declare her approval to the witnesses of the contract, so the witnesses can hear (proposal and acceptance).
After the spread of lies and forgery in contracts and transactions in the present time, it is better to conclude marriage contracts for the one who is absent through an official proxy that is registered at the notary. So, a groom may authorize whomever he wants by private or public proxy. (5)
It is also valid for the bride's guardian to authorize someone to conclude her marriage because a representative can do all the job for his client whether he is absent or present provided her permission to the proxy; moreover the conditions that a guardian must meet should be present in his representative. (6)
(1) See: Al Mubdi` 7/17 and Kash-shaf Al Qina` 5/37.
(2) It was also reported from the Shafi`i school of Fiqh, see: Mughny Al Muhtaj 3/139, Al Iqna` of Ash-Shirbiny 2/408, Rawdah At-Talibin 7/36, and at the Maliki school of Fiqh by adding dower, see the footnotes of Ad-Dusuqy 2/294, Al Qawanin Al Fiqhiyyah of Ibn Jizzy 1/131, the spouses and the form at the Hanbali school of Fiqh, see Al Mubdi` 7/17, Al Furu` 5/123, Kash-shaf Al Qina` 5/37. books and letters of Ibn Taymiyah 32/15, the footnotes of Ar-Rawd Al Murbi` 6/246 and made the rest from the conditions of authenticity; and we chose the view of the Maliki because the contract is invalid without these things. And Allah knows the best!
(3) See the footnotes of Ar-Rawd Al Murbi` 6/246, Manar As-Sabil 2/146, and the above-mentioned references.
(4) See the above-mentioned references.
(5) See the explanation of the law of personal status of As-Siba`y 1/94 and the provisions of personal status of Shaqfah 1/154. Reported from the footnotes of the family system in Islam by Dr. Muhammad `Uqlah 1/245.
(6) See the footnotes of Ar-rawd Al Murbi` 6/272 and Manar As-Sabil 2/154.