Married without Wali and wants to return to marital wedlock after three divorces
Fatwa No: 332191

Question

I am a 40-year-old woman who is divorced with kids. I got married to my second husband in secret and then got divorced three times. However, we still love each other and want to go back to one another. Was the marriage invalid given that it was executed without my Wali's (legal guardian) consent? If so, can I remarry him in public now? The marriage was secret because I did not inform my family, but there were witnesses.

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. 

The majority of Muslim scholars held that the marriage contract conducted without the consent of the bride's Wali is invalid. This is contrary to the view of Imaam Abu Haneefah  may  Allaah  have  mercy  upon  him who held that an adult, sane woman can marry herself off and that the marriage contract is valid in the absence of the bride's Wali. However, divorce is valid in this marriage even according to those who hold that marriage without a Wali is invalid.

Hence, as long as your husband has divorced you three times, then you have become irrevocably divorced. This is an irrevocable divorce of a major degree - in which the husband cannot re-enter the marriage contract with his divorced wife unless she, after having married another man and consummated the marriage with him, is divorced or widowed and her ‘Iddah (waiting period) expires. It is important to note that her marriage to the other man must be with the intention of staying with him, and it cannot merely be a Tahleel marriage (done with the sole purpose of becoming lawful to her ex-husband again).

Abu Al-Fadhl Saalih wrote in his book on the questions for his father Imaam Ahmad, may Allaah have have mercy upon them:

"I asked him (Imaam Ahmad) about a woman who got married without the permission of her Wali and then the man who married her divorced her three times. The Wali approved the marriage later on; is it lawful for the man and woman to remarry before she has married another man, since the first marriage is declared defective? He replied, 'No, they are not allowed to remarry unless she marries another man, because were she to bear her former husband a child, it would have been attributed to the husband because the parentage is legitimately attributed to the father due to their mistaken belief that their contract was valid. Therefore, the woman is not lawful for her former husband unless she marries another man (and he divorces her for any given reason or passes away).'" [Masaa'il Imaam Ahmad]

You should know that it is not allowable for the person who believed that a marriage was valid to later follow the opposing view and consider the marriage invalid in order to benefit from a ruling that suits his desires and serves his best interests. This constitutes manipulating the Sharee'ah provisions to fit one's desires.

Lastly, we advise you to beware of retaining your relationship with that man, who has become a non-Mahram man (alien) to you. Continuing in that relationship would inevitably lead to grave evil and unfavorable results.

Allaah knows best.

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