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Fatwa CenterDivorce between valid and invalid marriage
Question
There is a man who married a girl in the presence of a Shaykh in a mosque. The man said to his wife, “You are divorced.” Then, he revoked the divorce during the period of ‘Iddah (waiting period). He repeated this act. Now, he has divorced her for the third time. However, he loves her very much and wishes to revoke the divorce. It should be known that he was very angry these three times to the extent that he could not control himself. Now, he wants to make the marriage officially approved.
Answer
All perfect praise be to Allaah, the Lord of the worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
If the marriage was concluded in the presence of the Shaykh without the presence of a guardian, witnesses or both of them; then, this marriage is invalid. The guardian of the bride and the witnesses are conditions for the validity of a marriage. Both of you (the spouses), in addition, to the Shaykh should repent of your act. It is permissible for you to legalize the marriage contract by fulfilling its conditions and pillars. The divorced woman, in this event, does not have to marry another man and get divorced in order to become lawful for the man who divorced her because such divorces are not recognized under Sharee‘ah (Islamic law).
Shaykh Al-Islam Zakariyya Al-Ansaari, who follows the Shaafi‘i school of Fiqh (Islamic jurisprudence), may Allaah have ercy upon him, said,
If a man has sexual intercourse with a woman after a marriage that is concluded without her guardian, for example, if she concluded her marriage herself and no ruler invalidated this marriage, then, he has to pay a dowry that is equal to what is usually paid to her peers, not the dowry he named for her by virtue of the invalid contract. This is based on the invalidity of the marriage and on the Hadeeth (narration) which says: “The marriage of a woman who marries without the permission of her guardian is void. (The Prophet, sallallaahu ‘alayhi wa sallam, repeated it three times.) If there is consummation, she receives dowry for the intercourse he had with her. If there is a dispute, the Sultan (man in authority) is the guardian of the one who has no guardian.” [At-Tirmithi: (Hasan) Ibn Hibbaan and Al-Haakim: (Saheeh)] If he divorces her thrice, she does not have to marry another man and she becomes divorced again in order to be lawful for him to remarry because divorce in this case is not effected, as divorce is only affected in a valid marriage.’
If the marriage has been concluded in the presence of the Shaykh of the mosque in the presence of the guardian and the witnesses but it was not notarized by a marriage official; then, this marriage is valid and the divorce is effected. She is not lawful for him to remarry until she has married another man who later divorces her.
Allaah Knows best.
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