Divorce does not count in an invalid marriage
Fatwa No: 359293

Question

Thank you for sending me other answers. I wrote: my cousin proposed to me when we were alone. He said, "Will you marry me." I said, "Yes." Then he said, "I take you in my Nikah (marriage) do you accept it." I answered him, "Yes, I accepted." (In Urdu, I said, "Qabool hai.") He again said, "Do you accept that?" I said, "Yes, I accept it." He again said, "Do you accept it?" I again said, "I accepted it." I did not tell my parents. Then one day, I asked him, "If I do not want to marry you, what about that Ijaab (offer) and Qabool (acceptance)?" He said, "It is ok, I will divorce you." When I said it again, then he first said something, and then he said, "I divorced you," but I do not clearly remember if he said Talaq (divorce) to me at the time or whether he said that he would say it in the future. We cannot clearly recall the first part of his sentence, but we remember that he said, "I divorced you." Then after this Talaq incident, our parents held our wedding cermony. In your opinion, this marriage is not valid. My husband says that when he proposed to me, he intended to get married with me because he saw people getting married like that in a tv-drama, and he used to think that if a guy and a girl do Ijaab and Qabool, the marriage is valid. Even his mom said, "Now she is your wife." Sheikh, I want to know, is there any dispute regarding this? I now heard from a scholar named Javed Ahmed Ghamdi and a Shia scholar that if a boy and a girl do Ijaab and Qabool, the marriage is valid before Allah, even without witnesses and Wali (legal guardian) or any registration.
1) What if after listening to scholars, I think that the opinion of those who say that the marriage is valid in front of Allah just by Ijaab and Qabool with intention of marriage (is correct), should I follow their opinion and consider the divorce effective since he intended to marry me and did this with the belief that this marriage is valid?
2) Or if there is a dispute, will the divorce after Ijaab and Qabool be effective? One of your fatwas says that divorce is valid in a disputed marriage.
3) Which other group says that it is a valid marriage given that a scholar from Ahlus-Sunnah says that this marriage is valid before Allah?

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 ʻalayhi wa sallam, is His slave and Messenger.

What happened between you and this man is not a valid marriage according to the general majority of scholars, and the divorce is not valid. The only scholar who was quoted to have said that a marriage contract without the Wali and witnesses is valid is Daawood Ath-Thaahiri. We believe – and Allah knows best – that it is not justifiable to follow his opinion in this regard. Ibn Hajar  may  Allaah  have  mercy  upon  him said, “It is impermissible to follow the opinion of Daawood regarding the marriage without the Wali and witnesses.” [Al-Fataawa Al-Fiqhiyyah Al-Kubra 4/105]

As for the validity of the divorce in a disputed marriage, the scholars held different opinions in this regard. However, as for the marriage that is unanimously ruled as invalid, the scholars held that divorce does not take effect in it. Al-Mardaawi  may  Allaah  have  mercy  upon  him said, “The apparent indication of the author's statement is that divorce does not take effect in the case of a marriage that is ruled as invalid by the consensus of the scholars. This view is sound, and it is the chosen view of the majority of the Hanbali scholars, and many of them decisively stated that it is the correct view in this regard. It was also reported from him (Imaam Ahmad) that divorce takes effect; and this opinion was chosen by Abu Bakr in (his book) At-Tanbeeh.” [Al-Insaaf, 8/328]

That a divorce is invalid means that it is not taken into consideration and does not have any legal implications.

Allah knows best.

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