Who Bears the Wedding Feast (Walimah), and the Role of Custom in the Marriage Contractعلى من تكون الوليمة، ومرجع عقد النكاح إلى العرف

Questioner: The statement of the Prophet ﷺ to 'Abd al-Rahman, "Hold a wedding feast, even if only with a sheep" — does this relate to the contract, or to the wedding itself?

Regarding his statement ﷺ to 'Abd al-Rahman, "Hold a wedding feast, even if only with a sheep": the default is that the wedding feast (walimah) is upon the husband, and today too the wedding feast is upon the husband, in the sense that it is the husband who spends the money. For the husband gives a high dowry (mahr) on the understanding that the feast will come from them [the bride's family]; were the dowry lower and the feast upon him, many people might well be content with that. So the default is that it is upon the husband, and in the present time, even though the bride's family manage its arrangements, in reality it is upon the husband, since it is he who paid its costs — whether he paid its costs along with the dowry, or, as some people do now according to a custom we have, he bears the cost of the hall or the cost of the dinner. This too is still considered to be from the man. (audio unclear)

People act upon this. The wedding feast is prescribed, and the apparent meaning of the text is that it is obligatory, even if with something small. Its purpose is to announce the marriage, in keeping with his statement ﷺ, "Announce the marriage." A publicly announced marriage is the opposite of a secret marriage, and announcing the marriage demonstrates the reality of the union. Through announcement, and people talking of it among themselves, it may come to light that there is milk kinship (rada') between the spouses — that is, that they were both breastfed as infants by the same woman, which makes them milk siblings and prohibits their marrying one another. This happens a great deal — it is not rare — whether in the era of the Prophet ﷺ, in the era of the Successors, or in this era: when so-and-so has proposed to so-and-so, someone comes to inform that there is milk kinship between them. This is as in the story of 'Uqbah in the Sahih: [a woman said,] "I breastfed you both," so he went to the Prophet ﷺ, who said, "How [can you remain with her], when it has been said?" and he ordered him to separate from her. When the marriage became known, someone appeared who spoke of the milk kinship. So announcing the marriage may bring forward someone who says there is milk kinship between them.

This applies whether [the marriage was effected] by the contract alone — in the sense that, for the earlier generations, the contract was that one would say, "I give her to you," and the other would say, "I accept"; this was the contract in the early eras — because contracts are built upon custom. Whatever people customarily recognize as a contract is a contract. In this era, we today do not customarily regard it as settled — that she has become a wife whom he may go in to — once he says, "I give her to you." Rather, we consider the written registration to be the contract; this is our custom today. The proof of this is that you may propose to a woman, you may look at her, and you may even give them the dowry, while you have not yet contracted — meaning nothing has been written and the marriage registrar has not attended — and she is not called a wife. If she then refuses, or it becomes clear to you that you should not go ahead with the marriage, there is no need for you to divorce, and no one has ever been heard to say, "I have divorced," because she was never a wife in the first place that he should divorce her. But in the era of the early generations, no — divorce would be required, since they had no notion of documenting the contract in writing. So the reference point for this is custom; contracts are referred back to custom, and whatever people call a contract is a contract. It is on this basis that the contracts of the disbelievers are valid by consensus, because they customarily recognize that this is a contract and that this is a marriage. Accordingly, the reference point for the contract is custom.

Questioner: Nowadays, for us the contract is tied to the wedding — the announcement of the marriage, with the feast tied to it. O Shaykh, if he said, "I marry her to you," and the other said, "I accept," is that not considered [a contract]?

It is considered a promise, nothing more. Now, when a man from among your relatives proposes to you, you give him your word — "Done, we have given her to you" — and he may look at her; and after that you need to document the contract in writing. You do not consider it a marriage, nor do you consider it a completed contract (imlak), meaning that were the man to die, she would not inherit from him, nor would he inherit from her were she to die; and it means that if he decides not to marry now, he does not need to divorce. So this is called a promise, not a contract. This is the custom we have settled upon in this era: we do not call it a contract until there is a registrar and there is writing. When there is writing and a registrar, that is called a contract in our custom. But were there to be, in some era, a custom that the contract is one saying, "I give her to you," and that is that — as it was among the Companions, one would say, "I give her to you," and this would be a contract, and he would go in to her immediately — that is because this was their custom. These are matters whose reference point is custom, as Shaykh al-Islam Ibn Taymiyyah, may Allah the Exalted have mercy on him, stated.

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