The transfer of guardianship in marriage to the next of kin in the absence of the guardian: An analytical, foundational, objective, and comparative study

Abstract

If the general rule is that the father, as the closest guardian, is the one who marries off his daughter, the question that arises is: can this guardianship be transferred to a more distant relative, such as an uncle, cousin, or maternal uncle, if this close guardian is absent? Or is the marriage jeopardized while awaiting the return of the closest guardian, whose absence may be prolonged? Or is guardianship transferred to a more distant relative to protect the woman's interests and prevent harm to her? But what constitutes absence that transfers this guardianship? What are the conditions for its validity? What are its limits, and what is its legal and religious reality? And can a judge marry off a woman whose guardian is absent? All these ideas constitute the subject of this research. The research is divided into two sections. The first section, "The Nature of Absence," addresses two points: the first point defines absence and its legal and religious parameters, while the second point distinguishes absence from similar concepts (missing). The second section examines the transfer of guardianship in marriage to the next of kin due to absence, also divided into two points: the first point addresses the transfer of guardianship to the next of kin due to physical absence (disconnection), and the second point addresses the transfer of guardianship to the next of kin due to mental absence (fainting). The research problem lies in the following questions: the ambiguity surrounding the transfer of guardianship in marriage from the closest to the next of kin due to absence; the ambiguity surrounding the concept of absence, its limits, and the conditions for its establishment; and the ambiguity surrounding the judge's role in overseeing this contract when the closest guardian is absent.