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
Some of them
say that her word should be accepted and she should be believed, because she
is responsible for herself.
that if it is thought most likely that she is telling the truth, it is
permissible to believe her.
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.
follows a brief look at the comments of the fuqaha’:
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. End quote.
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.
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.
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.
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.
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.
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 real situation.
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.
(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.
help us and you to do that which He loves and which pleases Him.