Contract Customization, Sex, and Islamic Law

By Rabea Benhalim. Full Text.

Common law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships as exclusively under the realm of contract law governed by private actors. This Article brings Islamic law into the larger conversation on the use of contracts for sexual and relationship agreements. It further proposes that Islamic law has something to offer Muslims and non-Muslims alike by empowering individuals to use contracts to develop romantic, sexual relationships.

Islamic law requires formalized consent to sexual relationships by way of contracts that include duties, rights, and termination provisions. This Article examines the contract options under Islamic law that allow for licit sex between parties, such as urfi (customary), misyar (pleasure), and mut‘a (temporary) contracts. This Article then explores the options couples have in customizing contracts, such as adding specific termination provisions, to best meet their relationship needs. Islamic law allows for the private termination of a marriage without a governmental actor. Rather than requiring a governmental actor to terminate the relationship or presuming marriage to be a nearly or completely irrevocable commitment, spouses can contract to allow both parties to unilaterally end the relationship. Finally, this Article discusses the ways contemporary reform proposals could re- shape the way couples use contracts. Specifically, couples may want to structure their contracts as a partnership agreement, and in doing so, they may more easily capture the type of relationship they want to create rather than modifying default provisions to traditional contracts.