The Hanafi School and the issue of Wali
Fatwa No: 86348

Question

I was told by someone that it is not necessary for a divorced woman to have representation (Wali/Wakeel) at the time of Nikah. The evidence that was given to me was based on either Hanafi or Hanbali Fiqh, as I was told. Now to my understanding, there is no Nikah without a Wali. Please advice me as to the correct answer.

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 ( may  Allaah exalt his mention ) is His slave and Messenger.

 

According to the Hanafi School of jurisprudence, if a free pubescent woman marries a man without the consent of her guardian, her marriage is valid whether she is a virgin or a previously married woman. If the husband is considered a suitable match for the woman, her guardians have no right to object to her marriage. However, if the husband is not a suitable match for the woman, then her guardians have the right to object and demand the annulment of such a marriage contract.

 

Nonetheless, the majority of the jurists  may  Allaah  have  mercy  upon  them including the Hanbali School, are of the opinion that a marriage without the consent of the guardian of the woman is not valid in principle.  This is the preponderant opinion because the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) said: ''There is no (valid) marriage except with the consent of the guardian." [At-Tirmithi and others]

 

Moreover, Allaah entrusted the guardian with the matters of marriage in many verses of the Quran. Allaah Says (what means):

  • {And marry the unmarried among you and the righteous among your male slaves and female slaves.} [Quran 24:32]. A
  • {And do not marry polytheistic men [to your women] until they believe} [Quran 2:221].

Allaah Knows best.

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