Fatwa: # 17422
Category: Marriage
Country: South Africa
Date: 29th January 2009

Title

So the real question is was the first marriage valid in Islam? If so was the divorce valid? And Is the seconD marriage valid? If not then what should the couple do?

Question

I have a friend who was a Christian and she married a Muslim man in an American court but there were two male Muslims present. Actually one was in the court room with them and two others were standing outside the court room but they were present on the day. Although it was a paper marriage and they had the intentions of divorcing after some time, also they never actually consummated the marriage. Although they did live together for a short period but while together they only actually kissed, no sex took place.  Was this marriage considered valid?

After some time the girl accepted Islam and became a practicing Muslimah. She then wanted to marry another Muslim man who was also a revert to Islam. She wasn't very knowledgeable at the time and thought that since the first marriage was in a court and no sex took place that it wasn't valid so she did marry the second man Islamicly, while still being married to the first man.  After one year of being married to the second man divorce took place  between her and the first husband. They both signed the divorce papers.

Now they are both worried that their marriage isn't valid and they have been living in sin.

So the real question is was the first marriage valid in Islam? If so was the divorce valid? And Is the seconD marriage valid? If not then what should the couple do?

Answer

In the name of Allah, Most Gracious, Most Merciful

Assalaamu `alaykum waRahmatullahi Wabarakatoh

We apologize for the delay in responding to your query; this was due to the Darul iftaa being closed.

There are a few aspects in your query which has to be addressed separately. You have stated in your query that the spouses had intentions of divorcing; if they had mentioned this explicitly at the time of the marriage as a condition of the marriage (or even recorded it in any of the documents), the marriage would be null and void. On the contrast, if they had the intention, but did not express the intention and make it a condition for the marriage, the marriage will be valid. (Fatawa Mahmoodiyyah 11/61, Jamia Farooqiyyah)

الدر المختار - (3 / 51 سعيد)

( وبطل نكاح متعة ومؤقت ) وإن جهلت المدة أو طالت في الأصح وليس منه ما لو نكحها على أن يطلقها بعد شهر أو نوى مكثه معها مدة

Secondly, you have stated that your friend was a Christian at the time of the first marriage. Hadhrat Mufti Taqi Uthmani Saheb has stated, “The women who are Christian or Jew only by their names, and do not actually believe in any religion, like a large number of people in the western countries, cannot be termed as “Ahl al kitab” (People of the book). They are atheist and it is not allowed in Shariah to marry an atheist woman.” (Contemporary fatawaa 130) Therefore, it will be essential to see if she really was a proper Ahl al kitab in which case the marriage would have been valid, or was she a so called Christian who in reality was an atheist.

Thirdly, you have stated that there was only one witness in the court; the marriage will only be valid if there was another person (Muslim or Ahl al kitab) in the court who also witnessed the marriage. It is not necessary to officially authorize the witnesses. If there were any people present who fulfill the conditions of being a witness, the marriage will be proper. In fact, the judge himself could be a witness if he fulfilled the relevant conditions.

In short, if the intention of divorce was not a condition of the marriage and the woman was a true orthodox Christian, then the first marriage will be valid and the second marriage of the woman will be invalid. Conversely, if the woman was a non practicing Christian or divorce was a condition of the marriage, then the first marriage will be invalid and the second marriage will be valid. Furthermore, it was also imperative that at the marriage contract there were two witnesses. It does not matter if they were not officially appointed as a witness; the mere fact that they were present will be sufficient.

If the first marriage was valid based on the above explanation, the woman will have to make a new nikah with the second husband. The reason for this is that the divorce from the first husband was only issued after the (invalid) nikah of the second marriage. Hence, at the time of the second marriage she was still in the wedlock of the first husband.  She should also implore Allah to forgive her for all these years that she lived in fornication with the second husband.

And Allah knows best

Wassalam u Alaikum

Ml. Ismail Moosa,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa

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