Abu Dhabi courts are considering offering couples charged with sex out of wedlock the option to avoid charges by getting married. You can read the article here. It’s an interesting idea to reduce caseload, but I think the idea needs a bit of work to bring it more in line with the Sacred Law. There also needs to be more thought about the negative impacts it would have on UAE society.
The article mentions that many accused couples have a marriage contract that is invalid or not recognized by the state. Some other couples would like to get married but cannot due to various obstacles. While the Prophet ﷺ did command judges to avoid prescribed punishments [الحدود] when there are reasonable doubts [شبهات], having a contract that is known to be invalid or not recognized, or not having a contract at all are not generally recognized as reasonable doubts. According to Sacred Law, punishment becomes mandatory once a case is brought to the authorities and there is sufficient proof of the act. With respect to fornication, sufficient proof requires four witnesses who meet particular conditions and who witnessed the penetration itself, or a confession from the participants. Unless Abu Dhabi police travel in packs of four, courts will have to rely on a confession.
Perhaps instead of eliciting a confession the police and court can instead ask whether the couple can produce documentation to prove that they are husband and wife, and then offer to assist them to obtain proper documentation by their making a proper marriage contract. This would avoid eliciting a confession and the mandatory punishment altogether. (Obviously, the first thing the police should do is make sure that the act is consensual. Rape is a crime, and the Sacred Law does not sanction the horror of giving rapists legal access to their victims.)
While the above is an improvement in that it makes things appear to be more in line with the Sacred Law, I’m still not comfortable with this plan. Even if it is technically legal, it seems too likely to send the message that fornication is fine so long as you agree to marriage once you get caught. It also gives couples a way to force a marriage upon their family and tribe, and that should not be taken lightly.
Overall, it’s an interesting solution to the legal side of the UAE’s premarital sex problem. But it just treats some symptoms without addressing the underlying problems. And while doings so, it may also be trading one set of symptoms and problems for an even worse set.