She Claims That She Was Divorced By Her Husband. Is It Permissible To Arrange Her Marriage Without Any Proof Of That?
Islamic Rulings -
Living Shariah Verdicts
Islamic Questions & Answers
A man in
his seventies has married a woman who is staying in
this country but not under his sponsorship, and she
says that she got divorced from her former husband who
is in another city, and she has two sons from him. The
man's sons advised him to stay away from her or to
make sure that she really was divorced, and he does
not know how valid his marriage contract is, but he
refuses and does not want any interference in his
affairs at all. Are his sons guilty of any sin in this
case? What should they do with regard to their father?
Please note that she goes to that other city every Eid
and in the summer because of her children, and she
somewhere in the same city every weekend to meet some
of her friends, against her husband's wishes.
Praise be to Allaah.
If the woman says that she was married then she got
divorced and her 'iddah ended, should her word be
accepted or is it essential to have proof to confirm
that she is divorced? There is a difference of opinion
among the scholars concerning that.
Some of them say that her word should be accepted and
she should be believed, because she is responsible for
Others say that if it is thought most likely that she
is telling the truth, it is permissible to believe
Others make a distinction between one who is a
stranger and one who is living in her own city. The
word of the former should be accepted ,whereas the one
who is in her own city should not get married until
proof of her divorce is brought.
Some of them make a distinction between her telling of
her divorce from a specific husband, such as saying,
"So and so married me then he divorced me" and her
speaking of marriage to an unspecified person. In the
former case it is essential to bring proof that she
has been divorced by him.
There follows a brief look at the comments of the
It says in al-Mabsoot (5/151): If she says: My husband
divorced me or died, and my 'iddah has ended, it is
permissible for her fiancé to marry her and believe
her, because the issue of halaal and haraam is
something that is determined by sharee'ah and every
Muslim is responsible for himself and his words may be
accepted with regard to issues that are decided by
sharee'ah, but his word is not to be accepted with
regard to someone else if the other person says that
he is lying. Hence it is permissible to accept her
word concerning that. And Allaah knows best what is
correct. End quote.
It says in al-Habr al-Raa'iq (4/64): He indicated that
the word of a divorced woman may be accepted when he
said: If a (previously) married woman said to another
man: My husband divorced me and my 'iddah has ended,
then it is permissible for him to believe her if he
thinks it most likely that she is telling the truth.
'Aleesh al-Maaliki (may Allaah have mercy on him) was
asked, as it says in Fath al-'Aliy al-Maalik fi'l-Fatwa
'ala Madhhab al-Imam Maalik (2/78): What is your
opinion about a woman who came from Fayyoom to al-Qalyoobiyyah
and says: I was married in al-Fayoom, and my husband
divorced me two months ago, and she has a document
confirming a divorce, dated and sealed with the seal
of the qaadi in the city where she used to be, and she
wants to get married after her 'iddah ends based on
the date of the document. May she be allowed to do
that? Please answer.
The answer was:
Praise be to
Allaah and peace and blessings be upon our Master
Muhammad, the Messenger of Allaah. Yes, she may be
allowed to do that because she is to be believed in
her claim to be divorced and her claim that the 'iddah
has ended in the manner described, especially since
her claim is supported by the document from the qaadi.
This is what is indicated by the texts. But further
proof should be established because of what we see
nowadays of many women cheating and having several
husbands at once. We ask Allaah to keep us safe and
sound. End quote.
Al-Zarkashi said in al-Manthoor fi'l-Qawaa'id (1/171):
If she says: My husband So and so divorced me and my 'iddah
is over, and she asks the judge to conduct a marriage
for her, in Adab al-Qadaa' by al-Dubayli it says: If
she is a stranger and her (former) husband is absent,
then her word should be accepted with no proof or
oath. If the husband is in the same city and she is
not a stranger, then the judge should not conduct a
new marriage until her claim has been proven.
In Fasl al-Tahleel, al-Raafa'i said that her word
should be accepted if it is plausible, and he quoted
from Fataawa al-Baghawi: If a man and a woman appear
before the qaadi, and she asks him to marry her to
this man, and says that she was the wife of So and so
but he divorced her or died, the qaadi should not
proceed with the marriage until proof of the divorce
or death has been established, because she has
admitted to being married to So and so. End quote.
Al-Ramli al-Shaafa'i was asked about a woman who said
that her husband So and so divorced her or died, and
her 'iddah has ended; can the judge conduct her
marriage without any proof? He replied that the judge
cannot conduct her marriage until proof of what she
says has been established, because she admitted to
being married and marriage in principle is still valid
(unless there is evidence to the contrary). This is
unlike the case if she admits having been married
without specifying a person. This is what is indicated
by what al-Dubayli said in Adab al-Qadaa', [and he
quoted the words of al-Zarkashi mentioned above], and
what al-Qaadi mentioned in his fatwa that if the woman
claims that her husband has died or has divorced her
in front of her wali, and the wali denies it, she may
swear an oath and the judge may tell him to arrange
her marriage, or the judge may arrange her marriage.
He also said (3/153): To conclude: if a woman claims
that she is divorced from a specific marriage, the
judge should not let her remarry until it has been
proven. If the marriage is not specified then he may
accept her word, and there are other views on this
issue. End quote.
It seems that caution is required in this matter,
especially at times of corruption and when there have
been many incidents in which marriage contracts have
turned out to have been done for women who are already
married and are lying. But the judge still has the
right to make the decision in such cases. If he thinks
that her word is acceptable, he may arrange her
marriage, and if he thinks otherwise he should ask her
for proof, or he does not think that she is telling
the truth, he should not conduct her marriage until
the divorce has been proven.
What is done now is that the qaadi or registrar does
not conduct the marriage of a woman who is proven to
have been married before and claims that she is
divorced, until she brings proof of the divorce. We do
not know how the marriage contract with the man
mentioned was done.
If there is some doubt as to whether the woman is
divorced or if she is still married to her first
husband, then the sons of the person in question
should strive to ask about her and her first husband.
If it is proven that she was not divorced from her
first husband, then their father must be told about
that and the couple must be separated until her 'iddah
from both is over. The matter should be referred to
the qaadi to decide on the matter, and it is not
permissible for them to be quiet if they know about
that, because marriage to a woman who is already
married to someone else before she gets divorced and
completes her 'iddah is an invalid marriage, and the
one who does that is committing zina if he knew the
But here we should point out two things:
1 – The children should respect their father and
recognize his status and not offend him by speaking of
this matter. If we assume that they found out
something reprehensible, they should look for a
suitable means of advising their father, and if they
ask someone else to intervene that is better, so to
avoid offending him and to preserve the love that
exists between them.
2 – The motive for this doubt and accusing should not
be hatred of their father's wife because she is a
foreigner or because their father married her when he
was old, or for some other reason that is not hidden
from the Knower of the unseen, may He be glorified.
Let them speak good words and beware of accusing one
who is innocent; they should try to think in positive
terms and refrain from saying anything that may hurt
them or their father, so long as there is nothing that
they cannot keep silent about.
The Prophet (Peace And Blessings Of Allaah Be Upon
Him) said: "Whoever intercedes to prevent one of the
hadd punishments of Allaah has opposed Allaah in His
command; and whoever dies owing a debt, it is not
(going to be settled by) dinars and dirhams, but
rather by good and bad deeds; and whoever argues about
falsehood knowingly will remain subject to the wrath
of Allaah until he gives it up; and whoever says
something about a believer that is not true, Allaah
will cause him to dwell in the mud of the juice of the
people of Hell until he recants what he said."
Narrated by Abu Dawood (5129) from the hadeeth of Ibn
'Umar (may Allaah be pleased with him). Classed as
saheeh by al-Albaani in Saheeh Abi Dawood.
May Allaah help us and you to do that which He loves
and which pleases Him.
And Allaah knows best.