Rulings on Marriage, - * He married her on condition that he would divorce her after two years; what is the ruling on his marriage and what must he do?

I am a Muslim student in a foreign land. I married a Muslim woman from
this country, with a valid marriage contract in the presence of
witnesses. The agreement between us was that this marriage would not
be permanent, and both parties agreed that I would divorce her after
completing my studies, after two years, and she herself agreed to
that. Please note that this agreement was not mentioned in the
marriage contract at all; rather it was a valid marriage contract. But
I gave her a very small hope of the marriage being able to continue in
the future. Hence her guardian was the judge himself, because her
father and her paternal grandfather are both deceased, and none of her
paternal uncles attended because of the fear that the marriage would
not continue in the future. Therefore ours was a secret marriage.
Now we are still married, and it has been longer than two years, long
after the time when we thought we would separate. Now we intend to
continue the marriage indefinitely, like any normal couple, even
though divorce (talaaq) occurred once.
Is the marriage contract valid, despite what we agreed upon in the
beginning of making it temporary?
Is this marriage regarded as valid because the guardian was the judge?
Does divorce count in this case? What must we do now that we have
decided to continue the marriage?
-
Praise be to Allah
Firstly:
if there was agreement between the two spouses, or between the husband
and the woman's guardian, that the marriage would be temporary and
last for a set period of time, such as one or two years, or an unknown
period of time, and that agreement was at the time of the contract or
before it, then the marriage is invalid, because it is a mut'ah
(temporary) marriage, even if all the necessary conditions of marriage
were fulfilled.
It says inal-Mughni(7/136): Mut'ah marriage is not permissible – what
is meant by mut'ah marriage is that the man marries the woman for a
particular length of time, such as if he says: I give you my daughter
in marriage for a month, or a year, or until the Hajj ends, or until
the pilgrim returns, and so on, whether the exact period is known or
not. This is an invalid marriage, as was stated by Ahmad who said:
Mut'ah marriage is haraam.
This is the view of the majority of the Sahaabah and fuqaha'. Among
those from whom it was narrated that it is haraam were: 'Umar, 'Ali,
Ibn 'Umar, Ibn Mas'ood, and Ibn az-Zubayr. Ibn 'Abd al-Barr said:
Maalik, the people of Madinah, Abu Haneefah among the people of Iraq,
al-Awzaa'i among the people of Syria, al-Layth among the people of
Egypt, and ash-Shaafa'i were of the view that it is haraam. End quote.
Another example of mut'ah marriage is doing the marriage contract with
a woman on condition that he will divorce her when the stated period
ends, whether it is known or unknown.
It says inKashshaaf al-Qinaa'(5/97): Mut'ah marriage is when a man
marries a woman for a certain period, whether it is known or unknown,
such as if the guardian says: I give you my daughter in marriage for a
month, or for a year, or I give her to you in marriage until the Hajj
season ends, or until the pilgrim returns, and so on, whether the
period is known or otherwise.
If the husband stipulates in the marriage that he will divorce her at
a certain time, even if it is unknown, then this is like mut'ah, so it
is not valid. End quote.
See:al-Mawsoo'ah al-Fiqhiyyah(41/344)
Regardless of whether this condition is mentioned in the actual
contract or not, so long as there was agreement to that, or this is
customary in such marriages, then the ruling in all such cases is the
same.
Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) said,
speaking about the invalidity of tahleel marriages:
… and whether that is stipulated in the marriage contract, or was
stipulated before the marriage contract, or was not stipulated
verbally, rather it was known from the context of the proposal, the
situation of the man and the woman, and the mahr, which all may imply
that it is a tahleel marriage.
End quote fromBayaan ad-Daleel 'ala Batlaan at-Tahleel(6)
And he said:
The conditions that come before the marriage contract should be
treated like conditions mentioned in the contract, if they are valid,
and must be fulfilled. If they are invalid, they will affect the
validity of the contract. End quote. (500)
See alsoal-Qawaa'id an-Nooraaniyyah(302-303)
Secondly:
Guardianship with regard to marriage of a woman belongs, in order of
precedence, to her father, then her grandfather, then her son, then
her brother, then her paternal uncle, then the next closest, then the
next closest. If she has no relatives, then the ruler may give her in
marriage, because the Prophet (blessings and peace of Allah be upon
him) said: "The ruler is the guardian of one who has no guardian."
Narrated by Abu Dawood (2083); classed as saheeh by Shaykh al-Albaani.
If the qaadi (judge) gives her in marriage when there is someone who
is a relative who is entitled to guardianship, then the marriage
contract is not valid, because it is a transgression against their
rights.
Ibn Qudaamah said inal-Mughni(7/22): If the more distantly-related
guardian gives her in marriage, when there is a more closely-related
guardian, and she agrees to his giving her in marriage without the
permission of the more closely-related one, the marriage is not valid.
This is the view of ash-Shaafa'i. End quote.
Al-Hijaawi said inZaad al-Mustaqni': If the more distant relative, or
a non-relative, gives her in marriage with no good reason, it is not
valid.
Shaykh Ibn 'Uthaymeen (may Allah have mercy on him) said inash-Sharh
al-Mumti'(12/45):
If the more distant relative, or a non-relative, gives her in marriage
with no good reason, it is not valid. That is, when there is one who
is more closely-related and is present, and is qualified to be her
guardian. In that case the marriage is not valid, because the words of
the Messenger (blessings and peace of Allah be upon him), "except with
a guardian" refer to the position of guardianship, which implies that
the one who is most entitled to it is the closest, then the next
closest. End quote.
He (may Allah have mercy on him) was asked: A woman's son did her
marriage contract for her even though her father is still alive; what
is the ruling on this marriage contract?
He replied: we should see which of them is more entitled to give the
woman in marriage, her father or her son?
The answer is: her father is the one who should give her in marriage.
If her son gives her in marriage when her father is still alive, if
her father is far away and it is not possible to consult him, then
there is nothing wrong with that, or if the father would prevent her
from marrying this person with whom she is pleased, and he is
compatible in terms of religious commitment and character, then there
is nothing wrong with her son giving her in marriage. But if the
father is present and would not refuse, then the marriage contract is
not valid and must be repeated.
End quote fromLiqa' al-Baab al-Maftooh(no. 159).
Once it is established that the marriage is invalid, then the woman
must leave immediately. Then if each of them wants to marry the other,
the marriage contract must be repeated, fulfilling all the essential
conditions of having a guardian and witnesses.
For more information on the conditions of marriage, please see the
answer to question no. 2127.
Fourthly:
The divorce that occurred is to be counted among the number of
divorces, because he divorced her during a marriage that he believed
was valid.
It says inKashshaaf al-Qinaa'(5/237):
Divorce counts as such in a marriage concerning which there is a
difference of opinion as to whether it is valid, such as marriage done
under the guardianship of an evildoer, or marriage that was witnessed
by two evildoers, or marriage to a sister during the 'iddah of her
sister who has been irrevocably divorced by the husband, or a shighaar
(quid-pro-quo) marriage, or marriage of a muhallil, or the marriage
done without witnesses or without a guardian and the like.
End quote.
Shaykh Ibn 'Uthaymeen (may Allah have mercy on him) said:
With regard to a marriage concerning which there is a difference of
opinion (as to its validity), it must be one of two things:
1. The one who got married thinks that it is valid; if he thinks
that it is valid, then his divorce counts as such and there is no
difference of opinion concerning that. For example, a man marries a
woman who was breastfed three times by his mother, and he thinks that
the number of times of breastfeeding that makes a person a mahram is
five; in his view the marriage is valid, so any divorce issued by him
undoubtedly counts as such.
Similarly, if he marries a woman without any witnesses, but he thinks
that having witnesses present for the marriage contract is not a
necessary condition. In this case too, his divorce counts as such
2. The one who gets married does not think that the marriage is
valid. The scholars differed as to whether divorce in this case counts
as such. Some of them said that it does count as such and others said
that it does not. Those who said that it does not count as such said
that is because divorce is connected to marriage, and he does not
think that the marriage was valid, so his divorce does not count as
such. This is a good argument and there is nothing wrong with it.
Those who said that it does count as such said: that is because, even
if he does not think that the marriage is valid, others may think that
it is valid, so if he separates from her without divorce, and another
person comes along who thinks that the marriage is valid, he will
never marry her. So the divorce is valid in the case of a marriage
concerning which there is a difference of opinion as to its validity,
even if the one who issues the divorce does not think that it is
valid, because if he did not divorce her, this woman would be in
limbo.
If someone were to say: why does divorce count as such when he does
not think that the marriage is valid, and divorce is connected to
marriage? Our answer is: so that he will not prevent the woman from
marrying someone else, because someone who thinks that the marriage is
valid may want to marry her, so if that husband does not divorce her,
no one else will ever marry her, as he will think that she is still
married to him.
End quote fromash-Sharh al-Mumti'(13/ 24)
To sum up: you have to avoid this woman because the marriage is not
valid. If each of you wants to stay with the other, then you must do a
new marriage contract, meeting the necessary conditions, without
divorcing her.
If there is no desire to do a new marriage contract, then you must
divorce her once, so as to make her permissible for someone else,
based on what is mentioned above.
And Allah knows best.
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