Strengthening the Family: Legal Reform in Marriage in the Late Ottoman Empire

Introduction

Recent policy debates on marriage and family make it timely to revisit the historical roots of such reforms in the late Ottoman period. The Ottoman family structure and law have generally been shaped around the legal analysis of central regulations such as the 1917 Ottoman Law of Family Rights (Hukuk-ı Aile Kararnamesi) ¹ or macro-level discussions on population and biopolitics. ² Some studies address marriage and divorce processes primarily through the lens of moral control and social discipline mechanisms. ³ Although research on Shari’a court records points to the financial dimensions of marriage, the concrete reform proposals offered by provincial administrators and jurists to protect the institution of marriage have largely been overlooked in the literature.

The focus of existing studies on theoretical texts and the central will has left the search for solutions by local actors and practical-legal initiatives aimed at removing socio-economic barriers to marriage as scattered information. The original value of this study is that, contrary to the text-centric approach in the literature, it offers a “practice-oriented” perspective in light of archival documents.

This study aims to fill this gap in the literature by analyzing the concrete solution proposals developed regarding marriage obstacles in the center-periphery interaction, through the report sent by Tekfurdağı Mutasarrıf Zekeriya Zihni Bey to the Ministry of Interior in 1329 (1913) and the opinion prepared by Edirne Qadi Süleyman Efendi upon the request of Edirne Governor Adil Bey. Both texts are critical in showing both the late period issues of Ottoman family law and the local administration's search for contribution to central regulations.

This study argues that the two texts from the Hacı Adil Bey Papers reveal distinct but complementary local initiatives regarding marriage registration and dower reform. These proposals reflect an autonomous provincial agency that operated independently of central legislative processes and prefigured the reforms later codified in the 1917 Family Law Decree.

Zekeriya Zihni Bey's Proposals

In the late Ottoman Empire, the problems caused by marriage expenses in society were frequently brought to the agenda by both the central administration and local governments. Excessive expenditures in marriage and wedding ceremonies caused broad masses of people, especially in provincial regions, to struggle economically; this situation became a factor delaying marriage and even weakening the institution of marriage. This problem, observed throughout the Empire, was evaluated not only as a matter of individual extravagance but also as a social issue producing large-scale consequences such as the waste of economic resources, the disruption of social balance, and the weakening of the family institution.

Zekeriya Zihni Bey, in this context, analyzed why attempts to limit marriage expenses had failed and offered solution proposals. ⁴ According to him, the notifications published by the Ministry of Interior almost every year yielded no results in the field. The fundamental reason for this was that orders lacking kuvve-i teyidiyye (enforcement power) could not be effective in the eyes of the public, and gendarmerie and tax collectors remained insufficient to control such a complex economic-social issue.

Zekeriya Zihni Bey emphasizes at this point that the issue cannot be solved solely by administrative measures but requires the development of a solution based on more radical and legal mechanisms. Within this framework, he put forward three fundamental proposals:

1. Abolition of the Izinname System and Execution of Marriage Before the Court

Zekeriya Zihni Bey argues that the izinname (marriage license) system ⁵ should be abolished, and the parties (husband and wife) should be ensured to be present personally before the mahkeme-i şer‘iyye (Shari’a court). During this process, the marriage contract should be officially executed by the court, and the mehr-i muaccel (prompt dower) and mehr-i müeccel (deferred dower) should be clearly stated and tied to a written deed (senet).

The izinname was a document required in Ottoman law for the formalization of marriage, serving as a state-issued authorization. Its absence often led to marriages going unregistered, which in turn created significant legal complications regarding the legitimacy of offspring and inheritance rights. Snippets indicate that without an izinname, children could not be issued an Ottoman identity document (tezkire-i Osmâni). Zekeriya Zihni Bey's proposal to abolish this intermediate bureaucratic step and move the entire process directly into the court was a radical simplification aimed at increasing registration rates.

By moving the procedure to the court, marriage would become a deed possessing legal validity that does not require proof of its content, and the woman would personally ensure the protection of this deed. Furthermore, in the event of divorce, this deed could be directly implemented by execution offices without the need for any trial. In this way, both excessive costs would be prevented, and unnecessary disputes and litigation between parties would be avoided. Consequently, marriage would cease to be merely a religious ceremony and would gain the quality of a legal transaction.

2. Considering Unofficial Marriages Invalid

Zekeriya Zihni Bey, while acknowledging that marriages performed outside the court are religiously (shari‘an) valid, proposes that such marriages should not be considered directly valid by the state. He states that when such a marriage contract is concluded, the state should recognize it only after the payment of a penalty determined in proportion to the mehr-i muaccel and müeccel.

This proposal aims, on the one hand, to prevent arbitrary marriages by increasing official supervision, and on the other hand, to emphasize that marriage is not only a religious but also a public and legal transaction. Essentially, this proposal by Zekeriya Zihni Bey is based on a deep-rooted debate in Islamic history regarding the announcement of marriage or the effect of witnessing in marriage.

Islam strictly forbids men and women from living together without establishing a marriage contract. There is no dispute on this matter. However, there are some differences of opinion among the schools of thought (madhhabs) regarding the conditions of marriage. Hanafi jurists accepted the marriage contract established in the presence of witnesses as valid and did not make the announcement of the marriage a condition. Furthermore, in the Hanafi school, even if those making the marriage contract ask the witnesses to conceal this marriage and the witnesses do so, the marriage contract is valid.1 Hanafi jurists accepted that the witnessing of two witnesses fulfills the condition of publicity. ⁶ In contrast, in the Maliki school, the announcement of the marriage is a condition. ⁷

These views of the schools have made it difficult for laws regarding the registration of marriage to be acceptable in the eyes of the public. That is, the state's non-acceptance of a marriage that is religiously valid could not always be implemented. Indeed, although performing a marriage without an izinname was prohibited, the state was forced to accept marriages performed in this way.

In the first centuries of Islam, the official recording of marriage contracts was not in question. However, in later centuries, efforts were made to record marriages. The codes of law (kanunnâmes) issued by the Ottoman State and other laws containing records regarding the fees judges would receive from the parties for the work they did clearly show that the state intervened in marriage. ⁸ In the final years of the Ottoman State, marriages not recorded were not taken into account by official authorities.

The issue of recording marriage is also problematic today. In other words, the status of the marriage known as “imam marriage” (imam nikahı), which is not recorded by official authorities, has been debated. In fact, since the first years of the republic, there have been many people who married only with an imam marriage without performing an official marriage. The lineage (nesep) of children born from these marriages could not be officially connected to their mothers and fathers, and great confusion arose. The state was forced to issue laws regarding the correction of lineage in various years from 1933 onwards. ⁹

To summarize this part briefly, Zekeriya Zihni Bey's proposal regarding the registration of marriage reflects a broader reformist trend that would eventually find expression in the 1917 Ottoman Law of Family Rights. ¹⁰ While these two texts share significant thematic similarities, Zekeriya Zihni Bey's ideas should be interpreted as an echo of the era's legal anxieties rather than a direct validation or cause of the subsequent decree.

3. Increasing the Mehr-i Müeccel

Zekeriya Zihni Bey evaluates the mention of only mehr-i muaccel in the existing declaration as a significant deficiency. According to him, keeping the mehr-i müeccel low has weakened women's social positions; the ability of young girls to become marriageable for low sums like two or three hundred kuruş has led many immoral individuals to turn to polygamy and easy divorces. These individuals have caused women's victimization by using the right of divorce, which should be limited by Shari’a provisions, as a tool for their whims and desires.

Mehr-i müeccel refers to the portion of the dower payable to the wife upon the dissolution of the marriage, either through divorce or the death of the husband. It serves as a critical financial safety net for women. Zekeriya Zihni Bey proposes significantly increasing the mehr-i müeccel to prevent this problem. Accordingly, he suggests that a sum between:

First class: 50–100 lira

All mujtahids are in agreement regarding the necessity of the man giving dower to the woman in the marriage contract. ¹¹ Hanafi jurists ruled on the existence of a lower limit for dower. ¹² However, Shafi’i jurists accepted that there is no lower or upper limit for dower. ¹³ There is no amount that would cover everyone regarding how much the dower should be. However, it is possible for the state to impose restrictions in the permissible (mubah) area due to public interest (maslahat).

Indeed, during the caliphate of Umar (r.a.), he wanted to set an upper limit for dower, stating that people were victimized due to the high amounts of dower. However, he abandoned this decision upon the objection of a woman based on the verse: “And if you wish to replace a wife with another and you have given one of them a heap of gold, take nothing from it” (Qur'an, 4:20). ¹⁴ From this attempt of Umar, we understand that state administrators can determine an amount for the upper limit of dower for the sake of public interest. For if the head of state did not have such authority, Umar would not have attempted this.

According to Zekeriya Zihni Bey, if these proposals are taken into account and a clear and detailed instruction is sent to the qadis by the Bâb-ı Meşîhat (Office of the Sheikh al-Islam), the parties going to the court only once in their lives will not constitute a great burden for marriages; on the contrary, it will be possible for marriages to take place on a more solid and reliable ground (27 Kânun-ı Sânî 1329 / January 1914). In conclusion, Zekeriya Zihni Bey proposed not only limiting marriage expenses but also placing the institution of marriage on a more official, more legal, and more deterrent ground.

Edirne Qadi Süleyman Efendi's Views

Edirne Qadi Süleyman Efendi, in the memorandum he penned, characterizes marriage as “the support of order, the order of the world, and an institution that must be protected religiously,” emphasizing that regulations regarding the marriage contract produce not only legal but also social, moral, and religious consequences.

In the introduction of his writing, pointing to objectives such as facilitating marriage, preventing artificial and fraudulent (müzevvere) lawsuits, ensuring healthy population growth among Muslims, ensuring good livelihood between spouses, and protecting their rights and duties towards each other, he lists his proposals that need to be taken into account within this framework. ¹⁵

1. Procedure of Marriage Execution and the Issue of Agency

According to Süleyman Efendi, most of the parties wishing to marry are not from the same town or village but reside in different places. Therefore, bringing young girls, in particular, before the court would create difficulties due to reasons such as a sense of shame and the lack of consent from families. Sending a representative (vekil) to represent the parties in court would also not serve the purpose of facilitating marriage as it would bring about many official formalities.

For this reason, Süleyman Efendi proposes the appointment of an official charged solely with this duty for the easy and simple execution of the marriage contract. This official would travel through the villages, go to the relevant village upon request, and after making the necessary examination, if there is no religious or legal obstacle, determine the dower (not exceeding a maximum of 5,000 kuruş) according to the situation of the parties and execute the marriage contract.

The contract would need to be recorded in the notebook kept by the official, certified by the village council of elders (ihtiyar heyeti), and one copy of the arranged document (hüccet) given to the woman, while the other copy is sent to the affiliated court. Thus, costly documents like the ilmühaber and izinname would become unnecessary; the certified registry record would be accepted directly as legal evidence and could be implemented by execution offices.

However, only if the man to be married is from another neighborhood or village and his status is unknown to the people of the neighborhood or village where the girl resides, he or his representative must present an ilmühaber stating that the man to be married has no obstacle regarding military service. Conversely, in the case of imams performing marriages on their own, not only the imam but also the marrying parties and the council of elders should be punished.

2. Execution of Marriage in City Centers

Süleyman Efendi adapts this procedure he proposed for villages to city centers as well. If the parties come to the court personally, the marriage contract should be made directly at the court; in case they cannot come, a special official should be sent to perform the contract in a manner similar to the procedure in the villages.

3. Marriage and Wedding Expenses

The Qadi of Edirne states that the most significant part of marriage expenses in the region consists of extravagances in weddings. According to him, weddings should be limited to only one day and one night, and no more should be allowed. ¹⁶ In some regions, since işret (alcoholic entertainment) is considered almost mubah in weddings, this situation is forbidden religiously, rationally, and in terms of wisdom. Furthermore, işret environments prepare the ground for severe incidents such as murder. Therefore, those who engage in işret at weddings should be imprisoned, and imams and mukhtars who conceal the event should be punished.

The issue of marriage expenses not being burdensome is also among the recommendations of the Prophet Muhammad (s.a.s.). Accordingly, the Prophet said, “The most blessed marriage is the one with the least burden.” ¹⁷ When looking at studies conducted today, economic insufficiency holds an important place among the reasons for young people's inability to marry. Additionally, it has been reported that the issue of expenditure constitutes the most important cause of problems experienced between family members. ¹⁸ Therefore, we can say that today's problems have entered the agenda of statesmen since the last periods of the Ottoman Empire.

4. The Issue of Mehr-i Müeccel

Süleyman Efendi does not see the absolute increase of mehr-i müeccel as appropriate for public interest (maslahat). According to him, high dowers will make marriage difficult, which will produce objectionable results in terms of social order.

However, it is a significant problem that some ignorant people view marriage merely as a means to satisfy carnal desires and turn to divorce without a legitimate reason. Süleyman Efendi expresses with regret that such people who resort to divorce without a legitimate justification waste the future of innocent and chaste young girls in a way that is difficult to compensate. He argues that such individuals should be punished if they perform divorce more than three times, and if they continue in this state, their punishment should be increased.

He bases this view on fiqh maxims such as “The judgment is according to the intent of the act,” “Harm must be eliminated,” and “Severe harm is eliminated by lighter harm.” ¹⁹

Different views have been put forward regarding the determination of the limits of the state's authority regarding areas regulated by Islamic law. In this context, it has been accepted that the state cannot accept as legitimate matters strictly forbidden by religious texts (nass). However, it has been stated that the state has the authority to intervene in the permissible (mubah) area due to public interest. The basis of this ruling is that Umar (r.a.), acting as deputy to the head of state from the caliphate of Abu Bakr and subsequently as head of state, imposed some restrictions in the permissible area. ²⁰

Therefore, if people use marriage or any institution for purposes other than intended, the state can impose some restrictions. This is the authority given by Islamic law to state administrators. Qadi Süleyman Efendi argues that since those who divorce without relying on any reason harm the dignity of the marriage institution and innocent people in society are victimized due to this immoral and unlawful practice, state authorities must make regulations in this regard.

5. Prevention of False and Fraudulent Lawsuits

Süleyman Efendi states that hearing lawsuits opened with the claim that “marriage contracts of minors, especially girls, were executed by their guardians” without relying on any evidence, document, or solid proof (hüccet) carries serious drawbacks in terms of today's conditions.

To prevent such claims, judges must not take into account groundless and fabricated (müzevvere) lawsuits. For from time to time, when a wealthy father dies leaving behind an unmarried daughter, some people, with the desire to obtain this property, file lawsuits contrary to the truth stating “a marriage contract was made by her guardian.” In this case, the helpless girl child is dragged through unjustified accusations and imputations; eventually, she is victimized under the pressure of the party who goes further in lies and trickery, losing her rights.

The issue of marrying minors has been one of the most frequently discussed topics in recent centuries. Classical fiqh books state that the marriage of minors by their guardians is legitimate. ²¹ However, in the Law of Family Rights prepared in the late Ottoman period and accepted as a legal text in the field of family law, it was stated that children younger than the age of puberty could not be married by anyone.

Today, in the majority of studies conducted on this subject, it is accepted that there is no nass (textual evidence) strictly commanding or forbidding the marriage of minors, and the issue is referred to the custom (urf) of the period. Therefore, it is accepted that the state can use its authority to impose restrictions in the permissible area due to public interest in this field and can prohibit the marriage of children before a certain age. ²²

Furthermore, the fact that the subject is mentioned theoretically in furu al-fiqh (branches of jurisprudence) books does not mean the practice was widespread. On the contrary, in studies based on court records (şer‘iyye sicilleri), it has been stated that the marriage of minors was a rare practice. ²³ These concerns regarding the abuse of minor marriages resonate with the restrictive measures later adopted in the 1917 Ottoman Law of Family Rights. However, this similarity suggests a shared institutional concern across different administrative levels rather than a linear progression of legal thought.

As can be understood from Süleyman Efendi's statement, the theoretical acceptance of the legitimacy of marrying minors is abused, and protected minors are treated unjustly by some malicious people. Viewed from this angle, a legal provision is made an instrument of lawlessness. In such cases, the law is obliged to determine new provisions to prevent itself from being instrumentalized for lawlessness. Otherwise, the law will not be able to offer the benefits (maslahat) expected from it, and the law itself will become the shackle of these benefits.

When we look at the system and history of fiqh, we see that the law can develop such reflexes. The sedd-i zerîa (blocking the means) practice in the system can be characterized as an example of this. In legal history, all interventions made later by Umar (r.a.) to existing legal rules would constitute examples in this scope. ²⁴

As stated above, according to the majority of Islamic law researchers today, the marriage of minors—which was legislated from the late Ottoman period onwards—is within the jurisdiction of the state, and a minimum age determination must be made. On the other hand, if the doctrinal acceptance of marrying minors is abused by some malicious people and causes the victimization of innocent minors, the state must take a number of legal measures to prevent these victimizations. Therefore, it can be argued that Süleyman Efendi's report does not present a contradiction to fiqh, but rather expresses a jurisprudential necessity to prevent the said victimizations.

6. Fees and Penalties

When expenses such as the izinname and ilmühaber are abolished, it is proposed that a fee be taken from the dower at a certain rate—excluding the poor—to cover the salary of the official to be appointed. Indeed, it is stated that such an article already exists for those executing contracts in court.

In addition to this, it is observed that those who marry by determining a low amount of dower with the motive of establishing intimacy only to escape punishment without a legitimate reason divorce the woman after a short time, and thus the lives of victimized women are wasted. To prevent such practices, it is stated that a deterrently high compensation must be taken from those who perform a divorce without an excuse before exceeding at least three years.

Comparison of the Views of Zekeriya Zihni Bey and Edirne Qadi Süleyman Efendi

Although Zekeriya Zihni Bey and Süleyman Efendi addressed the same set of problems—excessive marriage costs, unregistered marriages, and the abuse of divorce—they approached these problems from fundamentally different epistemic foundations. Understanding this difference is essential for grasping the significance of each proposal.

Zekeriya Zihni Bey reasoned primarily from the perspective of state administration and social utility. His proposals—mandatory court appearance, legal invalidity of unregistered marriages, and classified dower minimums—were designed to extend the reach of the modern state into the domain of marriage. For him, the failure of previous measures was a failure of enforcement, not of principle. The solution was therefore institutional: move marriage into the court, attach legal consequences to non-compliance, and use the dower as a deterrent instrument. His language and reasoning closely resemble the modernizing administrative discourse of the late Tanzimat and Second Constitutional Period.

Süleyman Efendi, by contrast, reasoned from within the tradition of Islamic jurisprudence. Each of his proposals was grounded in fiqh principles—maslahat (public interest), and sedd-i zerîa (blocking the means to harm). Where Zekeriya Zihni Bey asked, “What legal mechanism can the state use?”, Süleyman Efendi asked, “What does the Shari'a permit the state to do?” This difference in starting point produced different solutions. Most notably, Süleyman Efendi rejected the absolute increase of mehr-i müeccel that Zekeriya Zihni Bey proposed, arguing that high dowers would make marriage more difficult and thus harm the social order the opposite of the intended effect.

Despite these differences, the two proposals are complementary rather than contradictory. Zekeriya Zihni Bey's court-centered model was better suited to urban centers where parties could realistically appear before a judge. Süleyman Efendi's itinerant marriage officer model directly addressed the practical constraints of rural and semi-rural populations, where bringing a young woman before a court was socially and logistically difficult. Together, the two proposals sketch a tiered system that could function across different social geographies of the late Ottoman province.

The most significant point of divergence concerns the role of the state in regulating marriage. Zekeriya Zihni Bey was willing to have the state render religiously valid but unregistered marriages legally invisible—a position that directly challenged the classical Hanafi position on the sufficiency of witnesses. Süleyman Efendi avoided this tension by proposing penalties for imams and village councils who facilitated unregistered marriages, rather than invalidating the marriages themselves. This difference reflects not merely a stylistic preference but a deeper disagreement about the limits of state authority over a domain that Islamic jurisprudence had long governed.

Finally, both texts share a common limitation that must be acknowledged: neither author consulted or cited the views of women directly affected by these regulations. Zekeriya Zihni Bey's proposals for raising dower minimums and Süleyman Efendi's penalties for arbitrary divorce were framed as protections for women, but women appear in both texts as objects of protection rather than as participants in the reform debate. This absence does not diminish the historical significance of the proposals, but it does mark a boundary of their perspective.

Conclusion

The 1329 (1913) memoranda of Zekeriya Zihni Bey and Edirne Qadi Süleyman Efendi are concrete and complementary manifestations of both legal and social anxieties shaped around the family institution in the late Ottoman period. Both texts emphasize that marriage is not only a socio-economic phenomenon but also a public event that must be regulated; however, the intervention strategies and fundamental priorities they propose are fed by different epistemic grounds.

Zekeriya Zihni Bey's approach, focused on the court, registration-transparency, and economic deterrence, reflects a view arguing that the modern state can intervene in family relations through legal instruments. Süleyman Efendi's proposals, based on a practical, province-appropriate, and facilitating official model, represent reasoning sensitive to the applicability of law and the local dynamics of society.

The common denominator of both reports is the determination that economic obstacles caused by marriage expenses have destructive effects on the family institution. Although Zekeriya Zihni Bey's proposal to raise the mehr-i müeccel and Süleyman Efendi's emphasis on limiting wedding extravagance propose different tools, the goal is the same: to prevent the delay or weakening of marriage due to cost and to ensure the protection of spouses.

In this respect, the texts in question illustrate a provincial reform agenda that parallels the central government's modernizing efforts. While these proposals prefigure some aspects of later legislation, they represent an independent local search for solutions within the existing legal and social framework of 1913. On one side, there is the search for fiqh rules and Shari’a legitimacy; on the other, the desire to strengthen the central administration's registration, execution, and inspection mechanisms. The texts also offer a historical example of how the state can legitimize its authority to intervene in mubah areas. Both Zekeriya Zihni Bey and Süleyman Efendi refer to the principle of maslahat as the ground of legitimacy for regulation by the state, arguing the necessity of preventing the abuse of law and injustices emerging through traditional provisions.

The parallels between these nineteenth-century proposals and contemporary family policy debates are noteworthy. However, the historical value of these texts lies primarily in what they reveal about late Ottoman provincial legal culture and the range of reform imagination available to local actors before the 1917 codification.