Comparative Study of White Marriage in Islamic Jurisprudence and Civil Law (in Light of Governmental Jurisprudence and Supportive Jurisprudential Principles)

Abstract

In recent decades, cultural and social transformations resulting from modernity and globalization have introduced emerging phenomena into the lifestyle of youth, among which one of the most significant is the concept of “white marriage” or “cohabitation without marriage contract.” This type of relationship, which is often established between a man and a woman without a religious contract (ʿaqd sharʿī) and without legal registration, is considered illegitimate from the perspective of Islamic jurisprudence and is regarded as a clear instance of fornication (zinā). In Iranian civil law as well, due to the absence of a formal marriage contract, no legal effects are attributed to such a relationship, and it stands in contradiction to the principles of Sharīʿa. The present article, adopting a comparative approach, conducts a substantive analysis of this phenomenon in two domains: Islamic jurisprudence (with a focus on Imāmī jurisprudence and the opinions of Sunni jurists) and Iranian civil law. It seeks to provide a supportive and realistic response through a novel analysis of jurisprudential and legal foundations, as well as secondary jurisprudential principles such as “no harm” (lā ḍarar), “commitment” (ilzām), “marriage doubt” (shubhat al-nikāḥ), and “priority of the more important over the important” (ahamm wa muhim). The innovation of this article lies in transcending the mere prescriptive rulings on fornication and shifting focus toward the construction of legal and social systems capable of addressing emerging social realities.