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She Got Married Without Writing The Marriage Contract – Should She Repeat The Marriage?

Islamic Rulings - Living Shariah Verdicts

Islamic Questions & Answers


I have been married for a year and a half and when i got married it was to a muslim man and i became muslim after a year and a month of being married we did the marriage islamically correct ie: he asked my fathers permission and had two witnesses and he asked me what i wanted for dawry but we did not make a marriage contract do we need to make one and is the marriage valid?and also i do not have a Wali do i need one?.

Praise be to Allaah.

Firstly:

May Allaah bless you; we congratulate you for the blessing of Islam, for it is the greatest of blessings. We also congratulate you for your marriage, and we ask Allaah to continue to bless it, and to bless you with a righteous husband and righteous offspring.

Secondly:

If the marriage was done with the agreement of your father and in the presence of two witnesses, then it is a valid marriage, and it does not matter that the marriage contract was not written down or that the mahr (dowry) was not recorded. But the marriage contract should be written down because that helps to protect people's rights. As your marriage was done before you became Muslim, then your wali (guardian) was your father who was of the same religion as you, so if you want to write it down and document what is in the marriage contract, there is nothing wrong with that.

But now your father is not qualified to act as your guardian, because of the difference in religion. See the answer to question no. 48992.

But you do not need a wali now, because the previous marriage contract is valid, as stated above.

And Allaah knows best.

Can the marriage contract of a zaaniyah be annulled?

If a married woman commits zina, is she still a wife, or is her marriage contract annulled and does she become divorced because of this action?.

Praise be to Allaah.

If a married woman commits zina, her marriage contract is not annulled and she does not become divorced because of her committing this sin, but if she does not repent and she persists in this evil action, her husband is enjoined to divorce her, so as to protect his honour and his children.

Ibn Qudaamah (may Allaah have mercy on him) said:

If a woman commits zina with a man, or her husband commits zina, the marriage contract is not annulled, whether that occurs before or after consummation, according to the majority of scholars. This was the view of Mujaahid, ‘Ata', al-Nakha'i, al-Thawri, al-Shaafa'i, Ishaaq and ashaab al-ra'y. But Ahmad regarded it as mustahabb for the man to leave his wife if she commits zina, and he said: I do not think that he should keep such a woman, because there is no guarantee that she will not be unfaithful to him and attribute to him a child who is not his. Ibn al-Mundhir said: Perhaps those who said that keeping this woman is makrooh did not mean that doing so is haraam, so it is similar to this view of Ahmad's.

Ahmad said: And he should not have intercourse with her until it has been established that she is not pregnant by waiting for three menstrual cycles.

But it is more likely that this may be established by waiting for one menstrual cycle. End quote.

Al-Mughni (9/565).

It says in Kashshaaf al-Qinaa' (5/2):

If a woman commits zina before or after consummation, the marriage contract is not invalidated, or if a man commits zina before or after consummating the marriage with his wife, the marriage is not invalidated by zina, because it is a sin that does not put one beyond the pale of Islam, like stealing, but he should not have intercourse with her until she has observed an ‘iddah, if she is the one who committed zina. End quote.

Shaykh al-Shanqeeti (may Allaah have mercy on him) said:

It should be noted that if a man marries a woman thinking that she is chaste, then she commits zina when she is married to him, the more correct of the two (scholarly) opinions is that the marriage is not annulled, and it is not haraam for him to continue with the marriage. This was the view of some of those who did not allow marriage to a zaaniyah, as they differentiated between continuing such a marriage and initiating it.

Those who held this view quoted as evidence the hadeeth of ‘Amr ibn al-Ahwas al-Jashami (may Allaah be pleased with him) who was present during the Farewell Pilgrimage with the Messenger of Allaah (peace and blessings of Allaah be upon him). He praised and glorified Allaah, and reminded and exhorted (the people), then he said: "I enjoin good treatment of women, for they are prisoners with you, and you have no right to treat them otherwise, unless they commit blatant sin. If they do that, then forsake them in their beds and hit them, but without causing injury or leaving a mark. If they obey you, then do not seek means of annoyance against them…."

Al-Shawkaani said concerning this hadeeth of ‘Amr ibn al-Ahwas: It was narrated by Ibn Majaah and al-Tirmidhi, who classed it as saheeh. Ibn ‘Abd al-Barr said in al-Istee'aab in his biography of ‘Amr ibn al-Ahwas: His hadeeth about the Farewell Sermon is saheeh. End quote.

His hadeeth about the Farewell Sermon is this hadeeth, based on the words, He praised and glorified Allaah, and reminded and exhorted (the people). This reminding and exhortation refers to the sermon as is well known.

Thus you may understand that the opinion of one who says that if a man's wife commits zina, the marriage is annulled and she becomes haraam for him, is contrary to the correct view, and Allaah knows best. End quote.

Adwa' al-Bayaan (6/82, 83)

And Allaah knows best

 

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