Note: An introduction to this piece can be found here.
Anyone born into a typical Muslim family cannot avoid the central place that marriage occupies within the concept of a good Muslim life. Popular Muslim culture invests marriage with such religious significance that it is often described as comprising “half of all religion,” a view that is derived from a well-known hadith of the Prophet (S), where he is reported as having said, “Whoever marries has completed half of his faith, so let him be wary of God in the remaining half.”  Likewise, no one can read the Quran without realizing the importance it gives to marriage. A substantial portion of Quranic legislation is devoted to the reform of the pre-Islamic Arabian family. Spousal love is also mentioned as a sign of the divine,  and marriage has a transcendent element to it, with promises from God that believers will be reunited with their spouses and children in the next life. 
But marriage is also a worldly institution and a site of secular interests. It offers the legitimation of sexual intercourse, procreation and child-rearing, and the inter-temporal and inter-generational transmission of wealth and income within the family. Islamic law, by which I mean the rules regulating marriages in the treatises of the various schools of law (i.e. the Ḥanafīs, Mālikīs, Shāfiʿīs, Ḥanbalīs, and Jaʿfarīs) are concerned almost exclusively with the worldly regulation of this relationship. It is easy for a lay Muslim to confuse the legal rules regulating marriage as a worldly institution in Islam, with the ideals about marriage as a religious institution. When this confusion occurs, even validly contracted marriages can be, at a minimum, deficient from the religious perspective, and in the worst case, immoral, and be little more than a subterfuge for illicit sex.
Islamic law attempts, within the limits of what is reasonably accessible to us as human beings, to distinguish marriages that seek to fulfill the Islamic purposes of marriage from sham marriages which use the framework of marriage to achieve an Islamically illicit end. Two common shams are temporary marriage (mutʾa) and secret marriage (zawāj al-sirr). For various reasons, some of which will be discussed below, these practices are not unknown in many Muslim-majority societies. And as American Muslims have come into greater contact with the worldwide Muslim community, knowledge of these practices has seeped into the collective awareness of the Muslim community. From time to time, one hears anecdotal stories of men secretly taking a second wife, or engaging in temporary marriages. Secret marriages, despite the couple’s best efforts, are inevitably discovered, with often devastating consequences for the first wife and her children. Given the grave consequences of secret marriages, and its controversial position within the Sunnī tradition,  it is crucial for us as a community to understand why Muslim institutions in North America must take a strong public stance against the legitimacy of secret marriages.
Both temporary marriage and secret marriage offend the basic Quranic ethos of marriage.
The Quran distinguishes among three different kinds of intimate relationships, only one of which the Quran endorses.  The Quran approves of a lasting marriage in which both the husband and wife marry to achieve chastity. This desire to achieve chastity is what the Quran uses to distinguish their relationship from two other kinds of intimate relationships that it condemns. The first is an encounter in which the man pays the woman for a one-off sexual encounter, after which she was free to enter into similar transactions with other men. At the other end of the spectrum –a man and woman maintain a secret relationship in which the man maintains the woman and she agrees to engage in sex only with him. 
Because it may be difficult for an observer to distinguish among these three kinds of intimate relationships, Islamic law has set up numerous formalities that precede a legal marriage to provide objective indicia that the parties are moved by a desire for chastity rather than something illicit (e.g., trading sex for money or gratuitous satisfaction of desire). According to the Quran and example of the Prophet (pbuh) the couple should obtain permission from the bride’s family, the husband must pay the bride a marital gift and two witnesses must attest to the union. Customs which are not required but recommended, in part because they confirm the good faith intent of the parties, are the delivery of a sermon at the time of the marriage, and hosting of a public celebration of the marriage. 
While only God knows individuals’ intentions, Sunnī jurists have agreed that any marriage contract that explicitly states an end date for the marriage is void.  This is because for Sunnī jurists a fundamental purpose of marriage is lasting intimacy.
A commitment to the open-ended nature of marriage is a practical manifestation of the Quran’s requirement the couple desire chastity, which is what distinguishes marital sex from illicit sex.
The marriage contract, however, is only invalid if the couple explicitly stipulates in their marriage contract an end date to their union. If for example, a man desires to marry while abroad but plans to return home after a set time period, the woman he marries may not want to relocate to his native country. The husband and wife may implicitly agree that if and when he returns home, she will not go with him, and instead, they will divorce. Despite the circumstantial evidence that the parties in this case are contemplating their own divorce, Sunnī jurists leave the question of the couples’ good faith to God. The jurists assume that although the husband and wife’s intention at the time they marry may contradict the Islamic ends of marriage, their intentions may change after they marry. Among Sunnī jurists, there is no dispute therefore that any marriage contract which includes an explicit term is void and sinful.
Secret marriages pose a more difficult question from the perspective of traditional Sunnī doctrine. A secret marriage is one that satisfies all the formal requirements of a marriage, insofar as both parties consent to the marriage, the wife receives a dower, there are witnesses, and the consent of the guardian is obtained, but the parties agree that they will conceal the fact of this marriage from others. Sunnī jurists disagree on the validity of such a marriage. Those who belong to the Ḥanafī and Shāfiʿ schools of law uphold such marriages as valid on the grounds that all contractual requirements have been fulfilled, even if it is only the parties to the contract who know about the union. Mālikīs deem these unions to be legally void, and punish all the parties to such a contract, i.e., the husband, wife, the guardian and the witnesses. Moreover, according to the Mālikīs, even if the agreement is to keep the marriage secret from only one person, it is still a secret marriage, and therefore, both immoral and legally void.
In the last generation, the phenomenon of secret marriages has become more prevalent in the Muslim world, particularly among Arabs. People have different motives for entering into this category of marriage. Widows, for example, may fear losing pension benefits if the state learns that they have remarried. College-aged lovers, on the other hand, may be unable to afford the means to marry, or one or both of the families may disapprove of their relationship, and so they contract a secret marriage to circumvent family objections. A man may wish to marry a second wife, but neither he nor the second wife wants the first wife to know. Because certain countries, like Egypt, notify the first wife in the event the husband takes a second wife, the couple resorts to a secret marriage. Defenders of this category of marriage claim that it allows women who might otherwise be unable to enter into a full-fledged marriage, or perhaps don’t want to contend with the demands of a full-fledged marriage, to pursue their personal interests within a recognizably Islamic framework. They concede that the practice is not ideal, but don’t condemn it as sinful.
In constructing an argument against secret marriages, we must keep in mind that in Islam marriage addresses many different goals, and from many different perspectives. First, is the happiness of the parties to the relationship. Islam, of course, seeks the personal happiness of spouses. In fact, that is precisely why marriage requires the consent of both parties, and why divorce, in the event that the marriage is a cause of unhappiness, must always be an option. There is no doubt that a secret marriage furthers the goals of the individuals in that relationship, bringing them some degree of satisfaction and contentment, or else they would not engage in it. But, Islamic law does not recognize personal happiness as the only relevant concern in an Islamic marriage.
Accordingly, the second goal of marriage is what might be described as the union’s social function in producing and reproducing a stable and happy Muslim community. For this reason, Islamic law regulates marriage by requiring such formalities as a dower, attestation by witnesses, and permission of a guardian. Islamic law further regulates marriage by restricting Muslim men to marrying exclusively from scripturalists, and limiting Muslim women to Muslim husbands. Indeed, so important is the social dimension of marriage, that some Muslim jurists, such as Imām Mālik, prohibited Muslim men living in non-Muslim lands from marrying scripturalists, who would otherwise be legitimate marriage partners, for fear that that their children could not be raised as Muslims. It should be noted, that the regulations intended to further the social function of marriage also serve the first goal: the happiness of the husband and wife. When formalities are followed and rights publicly recognized, the risk of abuse or neglect is reduced. When parties to a marriage are secure in knowing that their rights are known to the community, they are in a better position to trust that their partner will honor those rights, if only out of fear of being disgraced in the community. And in fact, the public commitment to respect those rights itself helps to internalize a commitment to one’s duties in a marriage. Therefore, public knowledge and recognition of a marriage does not obstruct a couple’s long-term personal happiness, but rather secures and strengthens it.
The third goal of Islamic marriage, which may be understood as its highest goal, is to practice love and mercy by treating one another with kindness and affection, by raising a new generation of Muslim children in a loving home, and by creating bonds of solidarity across the extended families of both husband and wife. When we consider the phenomenon of secret marriages in light of the Islamic ends for marriage, it should be obvious that an agreement to keep a marriage secret from another person, some people, or the entirety of the world except for those involved in the contract, undermines each of the Islamic goals for marriage. While it may further the personal happiness of the spouses insofar as it facilitates their immediate gratification, it is unlikely to do so over the long-term, and therefore, is inconsistent with the divine end for marriage, namely, that it lead to lasting intimacy. It is also important to note that a secret marriage closely resembles the prohibition in the Quran against taking secret paramours.  Even if a couple goes through the trouble of satisfying the formal requirements of a marriage contract when the two then conceal the union from public view, they stray dangerously close to the kind of secret relationship the Quran condemns.
When a secret marriage is also polygamous, its dangers are only magnified. First, such a marriage is a prima facie violation of the Islamic requirement of equal treatment of co-wives, if only because the second, secret wife, knows of the first wife’s existence while the first wife remains ignorant of the second’s existence. Second, by taking a second wife in secret, the husband and his second wife are essentially admitting that their relationship would cause unhappiness to the first wife, and so it undermines one of the three goals of Islamic marriage – to bring happiness to both spouses. Third, a secret, polygamous marriage violates the first wife’s rights because in the context of a polygamous marriage she, at least according to the Mālikīs, enjoys heightened rights with respect to access to her husband, but if she does not know about his second wife, she obviously is not in a position to exercise those rights.  Fourth, and perhaps most significant for the North American Muslim community, when the secret marriage is discovered, it almost inevitably leads to breakdown of the first marriage, hurting the children from the first marriage, who are left bewildered as to the conduct of their father, especially if they have known him to be a religious Muslim, and who, once discovered, will often try to defend his conduct on the basis of Islam. This is especially damaging to Muslim children in North America who often struggle mightily to adhere to Islamic norms of chastity. When they see adults behaving in what strikes them as a licentious manner, it understandably weakens their resolve to adhere to Islamic teachings. It may also be destructive to the welfare of the secret wife, especially if the secret wife is a convert, with marginal social ties to the community, or young and had entered the marriage with an older man without the knowledge of her family.
Some Muslims, however, particularly those involved in secret marriages, will claim that the only reason they keep these marriages secret is because the first wife, usually supported by the community, refuses to accept a polygamous marriage. This refusal to acquiesce to a polygamous marriage is un-Islamic behavior on her part because a man is allowed four wives at a time, they argue, and therefore, excuses the secret nature of the relationship. If only the first wife would relent, and accept the polygamous relationship, there would be no need for secrecy.
To start with, such a position clearly misunderstands Islam’s position on polygamous marriages.
It is simply false to conclude that because the Quran and example of the Prophet (pbuh) do not deem an act to be forbidden, then we can safely assume that it is perfectly fine to engage in the act in question.
Islamic ethics consists of five categories – obligatory, recommended, permitted, disfavored and prohibited. A man’s marriage to a second wife normally falls under the ethical category of the disfavored, not the permissible.  Indeed, the Quran, after it grants permission to men to marry up to four women, explicitly warns that if a man fears that he will not be fair with his wives, then he should remain monogamous.  It then goes on to assert that it is impossible for men to be deal fairly with multiple wives, even if they try their utmost, and that instead of showing favoritism and turning aside from one wife in favor of marrying another, he should repair his relationship with her and be mindful of God.
In addition to the plain meaning of the Quran, sound examples from the Prophet’s (pbuh) life also discourage taking a second wife. Imām Bayhaqī reported in his book, Shiʿab al-Īmān, on the authority of Abū Hurayra, that the Prophet (pbuh) said, “Whoever has two wives, and is partial to one of them, shall come before God on the Day of Resurrection, with half of his body leaning over.” So then polygamy, all things being equal, is not something Islam is indifferent to, as the claim it is permissible would suggest. Rather, Islam deems it to be a disfavored practice in the best of circumstances, and when the second marriage is secret, it goes beyond being disfavored and enters the realm of the forbidden, as the Mālikīs have argued. As already discussed, when a man marries a second woman without disclosing that fact to his first wife, he has already shown partiality to the second wife simply by virtue of the fact that the second wife knows of the first wife, while the first wife remains in the dark of the second, to say nothing of all the other harmful effects that secret marriages have on spouses and their children. 
The position blaming the first wife for the secrecy surrounding the second marriage also erroneously assumes that a Muslim woman is under a moral duty to accede compliantly to a second wife. This is contrary to Islamic law and historical Muslim practice. The Prophet Muḥammad (pbuh) himself prevented ʿAlī b. Abī Ṭālib from taking a second wife while married to Faṭima because she was strongly opposed to it.  As a matter of legal practice among post-Prophetic generation Muslims, Muslim marriage contracts routinely included stipulations in favor of the wife that gave her the right to divorce.  While Imām Mālik considered such stipulations to be disfavored, they were not ḥarām, and they were judicially enforceable. Accordingly, a Muslim woman is not acting sinfully for refusing to accept a second wife. Because her objection to being in a polygamous relationship is not wrongful, it can hardly serve as an excuse to hide from her the husband’s second marriage.
Muslim communities in North America need to take a strong and public stand against the practice of secret marriages. While we hope that rumors of its frequent occurrence are in fact false, leaders of Muslim communities must denounce this practice before it takes root in our communities and devastates Muslim family life under the guise of being faithful to Islam. We pray to God earnestly that He provides our communities with leadership that is courageous enough to raise these issues publicly and take strong stands against them.
Mohammad H. Fadel is Associate Professor at the Faculty of Law, which he joined in January 2006. Professor Fadel wrote his Ph.D. dissertation on legal process in medieval Islamic law while at the University of Chicago. Professor Fadel was admitted to the Bar of New York in 2000 and practiced law with the firm of Sullivan & Cromwell LLP in New York, New York, where he worked on a wide variety of corporate finance transactions and securities-related regulatory investigations. Professor Fadel also served as a law clerk to the Honorable Paul V. Niemeyer of the United States Court of Appeals for the 4th Circuit and the Honorable Anthony A. Alaimo of the United States District Court for the Southern District of Georgia. Professor Fadel has published numerous articles in Islamic legal history and Islam and liberalism.
 Al-Rūm, 30:21 (“And among His signs is that He created for you from among yourselves spouses, in whom you find repose, and He made between you love and tenderness. In that are signs for a people given to careful thought.”).
 See, for example, al-Baqara, 2:25; al-Nisāʾ, 4:57; al-Raʿd, 13:23; and Yā Sīn, 36:56. Indeed, Ibn ʿĀbidīn, the great Damascene Ḥanafī jurist of the 19th century, described marriage, along with testifying to God’s oneness, as the only act of devotion that persists in the next life. The Sunnī schools of law are the Ḥanafī, Mālikī, Shāfiʿī and Ḥanbalī. The most important school of law for the Shīʿa is the Jaʿfarī school.  See, for example, al-Nisāʾ, 4:24-25 and al-Māʾida, 5:5.  The Quran’s term for the first relationship is sifāḥ. The Quran uses the phrase “not taking a secret lover (ghayr muttakhidhī akhdān)” to refer to the second kind of relationship. In contemporary language, sifāḥ is akin to ordinary prostitution, while the second resembles what is popularly known as the “sugar daddy” phenomenon. The Quran refers to the chastity of marriage with the term iḥṣān.  The Prophet (S) encouraged every person marrying to host a celebration in accordance with his means, saying “Awlim, wa law bi-shā (“Hold a wedding feast, even with a single lamb”).” See http://www.dorar.net/h/3321919409fb870fecbf309ad3886e8b.  Such a marriage is known as zawāj mutʿa or zawāj ilā ajal. This term is popularly translated as “pleasure marriage,” but the more accurate translation “is marriage for a term.” Although the Shīʿa permit such marriages, they consider them to be disfavored (makrūh) and subject them to a different set of rules that govern regular marriages. It is beyond the scope of this essay to discuss the Shīʿa view of temporary marriage, nor to discuss their arguments as to why it is not forbidden, and Sunni arguments against their view.  For an overview of the discussion of the merits and criticisms of zawāj al-misyār in the Arab world, see https://ar.wikipedia.org/wiki/%D8%B2%D9%88%D8%A7%D8%AC_%D8%A7%D9%84%D9%85%D8%B3%D9%8A%D8%A7%D8%B1.  Interestingly, the Quran addresses the prohibition against taking secret paramours directly to both men and women, i.e., men should not seek out women to be their secret lovers, nor should women seek out men to be their secret lovers.  For example, in a monogamous marriage, if a husband fails to show sexual interest in the wife, that is not, provided the marriage has been consummated, not ordinarily a grounds for divorce unless the wife can prove he is refraining from having intercourse with her for some malicious reason. If, however, he marries a second wife, and he displays sexual interest in her, but continues to ignore the first wife, then it is clear that the issue is not a general absence of sexual desire, but rather aversion to her, and she becomes entitled to a judicial divorce in that circumstance.  When jurists speak of the permissibility of a marriage to a second, third or fourth woman, they are speaking the language of positive law (al-aḥkām al-waḍʿīyya), not of ethics. So, such marriages are jāʾiz, in the sense that they are valid and binding, and produce all the relevant legal incidents of marriage from a secular perspective, but that does not mean that such marriages are Islamically encouraged. Further proof that marriage to a second woman is morally disfavored lies in the fact that while a bankrupt is permitted to contract a marriage if he is unmarried, he is not permitted to contract a second marriage.  Al-Nisāʾ, 4:3.  Al-Nisāʾ, 4:129.  This is not to say that polygamy should be deemed to be categorically prohibited, even for North American Muslim communities. There may very well be situations in which a polygamous marriage, even if discouraged, may be defensible, but in that case, it cannot be performed secretly or hidden from the first wife. It is beyond the scope of this essay to discuss what conditions ought to be satisfied in the North American context before a polygamous marriage is recognized as Islamic.  See http://www.dorar.net/h/d3d8a494b4ceab8ec3c1c531a6ff3167.  This contractual stipulation is known as tamlīk, and jurists understood it as a provision by which the husband assigns to his wife his power to divorce in the event a certain contingency takes place, such as his marriage to a second woman.