The Matrimonial Guardian – Wali

A matrimonial guardian, or the wife’s wali, is a person, often the father and generally a member of the family, who is responsible for protecting the interests of the future wife and supporting her in her choice to marry.

If the guardian is absent when his presence is required, the marriage is null and void, except in the Hanafi school, which allows marriage without a guardian for adult women.

• The husband’s consent, given in person during the wedding, is a requirement in all schools.
• With regard to the wife, there is a fundamental difference between the doctrines of the Maliki, Shafi’i and Hanbali schools, which all require a guardian, and the Hanafi doctrine which allows the wife to get married on her own.

1 – The guardian always finalizes the marriage with the husband

During the ceremony, the guardian always agrees to the marriage orally and in person. The guardian is the wife’s legal representative (agent) (Quran 2:232) (Muslim Hadith 1421). It is always possible for a proxy (tawkil) to replace the guardian with another man of his choice.

It is an obligation, a condition that must be met for the marriage to be valid, under penalty of complete nullification (fasid).

2 – He can accept or refuse a marriage

Depending on the case, he may or must ask for the future wife’s consent.

               For these three legal schools, the guardian’s power consists of two situations.

• For an adult woman who has never been married (birk) the guardian’s consent is required and the guardian may accept or refuse the marriage (Quran 33:36, Tirmidhi Hadith 1102).

     However, the guardian may not refuse a marriage without a valid reason. The reason must be based on protecting the interests of the person in his care.

It is strongly recommended (wajib) that the guardian ask the future wife for her consent, which may be given by a simple approving silence (Bukhari Hadith 6968, Muslim Hadith 1419, Muslim Hadith 1420).

     In case of a disagreement on this subject, a judge may be called upon to rule (Tirmidhi Hadith 1102).

• For an adult woman who has already been married (thayyib), the guardian must ask the future wife for her consent to the marriage and respect it.

His role is to communicate the future wife’s decision during the ceremony (Bukhari Hadith 5136, Muslim Hadith 1420, Bukhari Hadith 6946).

The Hanafi school allows and accepts the validity of a marriage without the presence or agreement of the guardian at the wedding ceremony (Quran 2:232, interpretation different from the other schools, Muslim Hadith 1421).

This school’s position is clear: the wife can get married on her own, and the marriage of a free woman, who is of age (has reached puberty) and of sound mind, is valid without getting her guardian’s permission or even advice.

It is a matter of the wife’s right and freedom to choose.

The Hanafi position is a concession (rukhsa) that can be used if needed. It is a blessing for sisters who are victims of poor treatment and abuse by their parents, for example, if the parents unjustly refuse a suitor.

However, women from this school who wish to marry should first try to convince their guardian (wali) or parents to allow her to marry as she wishes.

If the wedding is done with a guardian because the wife so chooses, the guardian absolutely must ask for the consent of the adult (pubescent) future wife to the marriage whether she has been married before or not.

According to most of the legal schools, including the Maliki, Shafi’i and Hanbali schools, a guardian must have 7 characteristics play a role in the wedding:

• Reason: He must be of sound mind
• Islam: He must be Muslim
• Masculinity: He must be a man
• Adulthood: He must be an adult (pubescent)
• Morality: He must not engage in immoral behavior
• Freedom: He must not be a slave and, hence, must be free (hurr)

In the Hanafi school, these characteristics are the same, except for the fact that the guardian does not need to have moral behavior or be free.

In the Hanafi school, there may also be certain rare situations in which the guardian may be a woman if she is lacking asil, in other words, male relatives, or may be non-Muslim in the case of interfaith marriage, meaning when the wife is Jewish or Christian.

It should be noted that it is not possible to be a guardian while in a state of sacralization (ihmran) in the Maliki, Hanbali and Shafi’i schools (Muslim Hadith 1409).

The Hanafi school prohibits only consummation of the marriage while in a state of sacralization.

Each Muslim legal school has a different order for appointing the guardian.

There is, however, one general rule for all the schools: You should not go to the next guardian in the order unless the guardian before has died or is incapable (for example, a minor) or unfit (for example, due to mental illness).

• Hanafi school: Priority is given to the son (even if illegitimate), then the father, the paternal grandfather, the brother, the half-brother (paternal), the son of the brother, the son of the half-brother, the paternal uncle, the son of the paternal uncle, and so forth.
• Maliki school: Priority is given to the son, then the father, the brother, the half-brother (paternal), the son of the brother, the son of the half-brother, the paternal grandfather, the paternal uncle, and so forth. Once this list is exhausted, the guardian will be the judge or official representative (hakim).
• Shafi’i school:  Priority is given to the father, then the paternal grandfather, the paternal great-grandfather, the brother, the half-brother (paternal), the son of the brother, the paternal uncle, the son of the paternal uncle, and so forth. Once this list is exhausted, the guardian will be the judge or official representative (Hakim).

Hanbali school: Priority is given to the father, then the grandfather, and so on along the ascending generational line, then the son in the descending generational line, then the closest paternal relatives and, lastly, the sovereign (sultan).

This is a situation in which the wali is absent from his habitual place of residence or is unavailable because he is traveling, for example.

This excludes situations in which the wali has died or disappeared without news and is presumed dead. In such a situation, it is necessary to go to the next person in the order. 

If the guardian is absent, he can always name a person of his choice to represent him for any reason in the wedding ceremony.

A guardian may be replaced very simply by another person through a proxy (wakala), whether orally or in writing.

On a practical level, it is enough for the guardian to clearly indicate orally or in writing that he is delegating his guardianship to someone who will then be responsible for following his instructions. The substitute guardian must, of course, have all the qualities needed to be a guardian and he must be present at the ceremony.