Marriage Contract, - * A Christian woman had a civil marriage,and she wants to have an Islamic marriage with another man without the first husband having divorced her

I know an orthodox Christian girl who got married to a Muslim man in
court. They got married about two and a half year ago and then she got
separated from him about five months ago. She now contacted her church
and the priest told her that her marriage was not valid in the eyes of
the church as it was done in the court. They also told her that her
marriage was a legal matter and she may pursue to get a legal divorce
from her husband but otherwise she is free to marry again. She is
looking for marriage again as in her opinion her faith is Christianity
and she would do what her church has asked her to do. Now, my question
is can I marry that girl? She is willing to marry me in mosque as it
will be religious marriage and she would accept it and consider it as
marriage. Secondly, she said that I should not question her marriage
with the other man as it is her decision which she has taken after
speaking to her church. Please guide me
-
Praise be to Allah
Firstly:
It is permissible to marry a woman of the people of the Book on
condition that she is chaste. Perhaps this is what you mean when you
say that she is orthodox. Allah, may He be exalted, says
(interpretation of the meaning):
"Made lawful to you this day are AtTayyibat (all kinds of Halal
(lawful) foods, which Allah has made lawful (meat of slaughtered
eatable animals, etc., milk products, fats, vegetables and fruits,
etc.). The food (slaughtered cattle, eatable animals, etc.) of the
people of the Scripture (Jews and Christians) is lawful to you and
yours is lawful to them. (Lawful to you in marriage) are chaste women
from the believers and chaste women from those who were given the
Scripture (Jews and Christians) before your time, when you have given
their due Mahr (bridal money given by the husband to his wife at the
time of marriage), desiring chastity (i.e. taking them in legal
wedlock) not committing illegal sexual intercourse, nor taking them as
girl-friends. And whosoever disbelieves in the Oneness of Allah and in
all the other Articles of Faith (i.e. His (Allah's), Angels, His Holy
Books, His Messengers, the Day of Resurrection and AlQadar (Divine
Preordainments)), then fruitless is his work, and in the Hereafter he
will be among the losers"
[al-Maa'idah 5:5].
But marriage to a Muslim woman is preferable.
Shaykh Ibn Baaz (may Allah have mercy on him) said:
If the Jewish or Christian woman is known to be chaste and to avoid
that which leads to shameful deeds, then (marriage to her) is
permissible, because Allah has allowed that and has made it
permissible for us to marry their women and eat their food.
But nowadays there is the fear of much evil for those who marry them,
because they may call him to their religion, and that may lead to his
children becoming Christian. So the danger is great, and it is more
prudent for the believer not to marry a woman of the people of the
Book, because there is no guarantee that she will not fall into
shameful deeds, or attribute to him children who are not his… But if
he needs to do that, then there is nothing wrong with it, so that he
may protect his chastity and lower his gaze thereby. He should try
hard to call her to Islam, and beware of her evil, lest she drag him
or the children towards disbelief.
End quote fromFataawa Islamiyyah(3/172)
It is not permissible to do the marriage in the church, because of the
great evil that is involved in that, namely approval of the ascription
of partners to Allah, may He be exalted, in the words that they repeat
when performing the marriage ceremony.
Secondly:
If this woman was previously married to a Muslim man, then it is not
permissible for you to marry her, until her marriage with the first
husband is ended by means of divorce, annulment or the like.
This first marriage is either valid, according to what we believe in
our religion, or it is an invalid marriage.
If it was a valid marriage, then the matter is clear: it is not
permissible for any man to marry a woman who is married to someone
else, even if she is from the people of the Book and the husband is a
Muslim.
Indeed, even if she is one of the people of the Book and her husband
is also one of the people of the Book, it is not permissible for a
Muslim to marry her when she is still married to the first husband.
In fact it is not permissible for a Muslim to turn a woman against her
husband, whether she is a Muslim or one of the people of the Book,
because the Messenger of Allah (blessings and peace of Allah be upon
him) said: "He is not one of us who turns a woman against her husband
or a slave against his master." Narrated by Abu Dawood (2175); classed
as saheeh by al-Albaani inSaheeh Abi Dawood.
Shaykh 'Abd al-'Azeem Abaadi (may Allah have mercy on him) said:
"who turns a woman against her husband" that is, he mentions the bad
qualities of the husband in front of his wife, or he mentions the good
qualities of some other man in front of her.
End quote from'Awn al-Ma'bood(6/159).
If we assume that the first marriage was an invalid marriage, then she
still does not have the right to leave that marriage or enter into
another marriage, until the first marriage is ended either by divorce
from the husband or annulment of the marriage by a Muslim judge. Legal
divorce is not sufficient in this case, and she does not become
permissible for you or anyone else thereby.
When they entered into that invalid marriage, they believed it to be
valid, so they do not have the right to leave that marriage or cancel
it except by the same means as they would leave a valid marriage,
especially since all this time has passed. Was this marriage
permissible for her in the past, when she was with her husband, then
when she decided to marry you, it became unlawful, or as if it was
nothing?!
In fact her asking the priest, after all this time had passed, and
telling you about that, is a kind of messing about and following whims
and desires for the sake of her desire to end the first marriage and
enter into a new marriage, simply because she wants to!
Ibn Qudaamah (may Allah have mercy on him) said: If a woman enters
into an invalid marriage, it is not permissible for her to marry
anyone other than the one who married her, until he divorces her or
the marriage is annulled. If he refuses to divorce her, the judge may
annul her marriage. This was stated by Ahmad.
End quote fromal-Mughni(7/342).
Shaykh Ibn Baaz (may Allah have mercy on him) said: The marriage is
invalid according to the more correct of the two scholarly opinions,
but she does not have the right to remarry until after he divorces her
or her marriage to him is annulled by the Muslim judge, so as to avoid
going against the view of those scholars who said that the marriage is
valid.
End quote fromMajmoo' Fataawa Ibn Baaz(20/411).
See questions no. 127179and 217698
The view of the priest is of no relevance, because perhaps he thought
that the marriage would not be valid unless it was done in the church.
Moreover, here we are speaking about the validity of the marriage
according to our religion and its teachings. This is what is
obligatory for you, and in our view what the priest has to say is
irrelevant and has no consequences at all.
The woman's saying that you have no right to ask about her first
marriage is not right. Rather it is not permissible for you to marry
her until you know what happened regarding the first marriage and
whether she is unmarried at present.
To sum up: this woman is either married in a valid marriage, in which
case it is not permissible for you to turn her against her husband,
let alone propose to her and marry her;
or she is married in an invalid marriage, so she needs a divorce from
her husband in order to be able to marry someone else.
And Allah knows best.
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