Married Her Without Guardian Then Divorced Her Thrice
Fatwa No: 407800

  • Fatwa Date:25-11-2019 - Rabee' Al-Awwal 28, 1441
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Question

As-salaamu 'alaykum
He got married with his wife without her father's consent but they made one of their friends as wali. After some days he got confused whether his marriage is valid or invalid. So he watched some videos and read articles of some scholars and realized that his marriage is invalid. And he thought if this marriage is invalid then he should divorce her(he misunderstood a fatwa that invalid marriage must be annuled by divorce from a website) so he can get married again with her gurdian's approval. He called her and said " divorce you " three times because our marriage is invalid. He was not joking nor he was angry/serious or intend to divorce her. He thought this divorce is compulsory to get out from an invalid marriage .
He didn't know that in invalid marriage there is no divorce. He was totally ignorant about that.
Later on he found out that according to hanafi madhab his marriage is valid and he text his wife that "if my marriage is valid I am taking you back" . Now my question is: are those divorces took place?
If he knew that his marriage is valid he would never say that word.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad,  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

The majority of the scholars are of the view that the consent of the guardian (his presence or someone he authorizes) is a condition for the validity of the marriage, and this is the view that we adopt here in Islamweb.

However, Imam Abu Haneefah  may  Allaah  have  mercy  upon  him is of a different view as he held the opinion that the guardian is not a condition.

For more benefit, please refer to Fatwa 83629.

Also, there is a difference of opinion among the jurists whether or not the void marriage needs divorce. The view we believe to be preponderant is that it does need divorce. Ibn Qudaamah  may  Allaah  have  mercy  upon  him said:

"If a woman is married a marriage whose contract is invalid, it is not permissible to marry her off to another man until her husband divorces her or that her marriage is invalidated [by the judge]. If he [her husband] refuses to divorce her, then the ruler can invalidate the marriage. This is explicitly stated by Imaam Ahmad. However, Ash-Shaafi’i said: "There is no need to invalidate the marriage or for divorce, because (in principle) it is a marriage that is not concluded (its contract is invalid); so it is like the marriage conducted during the waiting period.” [Al-Mughni]

The saying of this husband to his wife: “I divorced you”, is an explicit wording of divorce and it takes place even if he did not intend it.

The scholars differed in opinion in regard to the three divorces said consecutively in one meeting, whether this constitutes three divorces or one divorce.

The majority of the scholars – among whom is the Hanafi School of jurisprudence – are of the view that this takes place as three divorces, and so, his wife becomes irrevocably divorced from him and it is not lawful for him to marry her again unless she marries another man [a serious marriage and he consummates the marriage with her and then he divorces her or dies].

However, some scholars are of the view that it takes place as one divorce only.

These are issues about which the scholars have different opinions, and there is a considerable difference of opinion on them.

Therefore, in our view, the person concerned should resort to an Islamic court and act according to the ruling it will issue to him.

This is because the ruling of the judge is binding and it removes the dispute in matters of Ijtihaad.

Al-Qarrafi  may  Allaah  have  mercy  upon  him said: “Know that the ruling of the judge in matters of Ijtihaad removes the disputes, and the one who is of an opposing view and who is following a different Mathhad (School of jurisprudence) would give up the opinion in his Mathhad and adopt the ruling of the judge." [Al-Furooq]

For more benefit on an irrevocable divorce, please refer to Fataawa 384739, 381389, 128967, and 116098.

Allah knows best.

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