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?
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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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Rulings on Marriage, - * Ruling on marriage of a Muslim man to a Christian woman who is stipulating that the marriage contract should be done in the church by the priest

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My brother wants to marry a christian woman and she agreed to do an Islamic nikah if he also does a Christian wedding ceremony in church where a priest would marry them. My question is, is it allowed for a Muslim man to get married in church by a priest?
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Praise be to Allah
We do not think that a Muslim man should marry a Christian woman for reasons that we have previously explained in fatwa no. 45645. That is under ordinary circumstances, so if we add to that her stipulation that the marriage contract should be done in the Christian manner, officiated by a priest, then undoubtedly this is not allowed and is haraam. How can a Muslim allow himself to enter the church so that a priest may do the marriage contract on the basis of belief in the cross and the sacrifice that is based on rejection of the Holy Quran? And it will not stop there; the sign of the cross will be made over him and his wife in order to bless them thereby. Can there be any difference of opinion concerning the fact that this is prohibited?
In a fatwa issued by the Standing Committee – 1 (18/96) – it says:
Is it permissible to do the marriage contract in a church? Is it permissible to do the marriage contract twice, once in the Islamic manner and the other in the Christian manner, so as to please both sides?
Answer: it is not permissible to do the marriage contract in a church; the Islamic marriage contract is sufficient, and the other is not permissible. And Allah is the source of strength; may Allah send blessings and peace upon our Prophet Muhammad and his family and companions. End quote.
Shaykh ‘Abd ar-Razzaaq ‘Afeefi, Shaykh ‘Abd al-‘Azeez ibn Baaz.
And Allah knows best.

Marriage Contract, - * She became Muslim but her parents did not and they are objecting to her marriage and they want her to have illegitimate relationships! What should she do?

I embraced Islam – praise be to Allah – and now I want to keep myself chaste, but my parents think that the most suitable age of marriage is not until twenty-five or preferably twenty-eight. Even worse than that, one of them thinks that there is nothing wrong with friendship and relationships outside of marriage – Allah forbid. The matter is extremely difficult and I do not know how to talk to them about this matter. I want to keep myself chaste; I want to marry a man who will help me to adhere to my religion, a man who will stand beside me and help me, a man who will live with me, because I am living far away from my parents. They are divorced and each one lives in a different city. I do not know how to explain these details to them in order to convince them that I should get married early; rather they think that getting married at an early age is something that is not appropriate. I am the only daughter of my parents, hence I do not want to disobey them and I do not want to upset them; I do not want them to forsake me either. I want at least to do the marriage contract, then delay consummation until Allah wills.
My questions are:
1. Is it permissible for me to do the marriage contract but delay marriage and the waleemah (wedding feast) and consummation for five years, for example?
2. Do I have to repeat the marriage contract in front of my family later on and pretend that I was not married? Or is that regarded as coming under the heading of lying? I hope you can advise me because I do not know what to do.
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Praise be to Allaah.
Firstly:
We congratulate you for embracing Islam and we ask Allah to make you steadfast in it and to guide your parents and your family to Islam, for He is the Most Generous.
Secondly:
If a woman becomes Muslim but her family do not, they do not have any guardianship or authority over her.
Ibn Qudaamah (may Allah have mercy on him) said: The kaafir does not have any guardianship over a Muslim woman under any circumstances, according to the consensus of the scholars, including Maalik, ash-Shaafa‘i, Abu ‘Ubayd and ashaab ar-ra’y. Ibn al-Mundhir said: All of the scholars from whom we acquired knowledge unanimously agreed on this.
End quote fromal-Mughni, 9/377
Based on that, your father has no guardianship over you with regard to marriage and guardianship moves to the closest of your male relatives (‘usbah, i.e., male relatives on the father’s side, such as the grandfather, brother or paternal uncle). If you do not have any Muslim relatives, the director of the Islamic Centre or the imam of the mosque may give you in marriage.
Thirdly:
If your family are not convinced about you getting married, and you fear that getting married without their permission will result in negative consequences, such as severing of family ties or a reaction from your family against Islam, the imam of the mosque or the director of the Islamic Centre may give you in marriage without your parents’ knowledge, and you can delay the consummation, waleemah and wedding party until you are able to convince them.
If you are not able to convince them within a short time and you fear for yourself if you remain without a husband, then you can go ahead with the marriage and your husband can consummate the marriage with you in accordance with shar‘i rulings, but without your parents knowing about it. Then if they find out about your relationship with your husband, you can give them the impression that he is your boyfriend and so on, because the husband is a friend of his wife, and thus you can conceal the true nature of your situation from them.
Whenever you are able to convince them, there is nothing wrong with repeating the marriage rituals in front of them superficially, so as to ward off their harm from yourself or prevent them from cutting you off.
And Allah knows best.

Marriage Contract, - * Ruling on doing the marriage contract over the phone or Internet

Is it valid to do the marriage contract over a WebCam? Because I heard that it is not permissible as one of the conditions of marriage is that it should be done in one place?
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Praise be to Allah.
The proposal (eejaab) and acceptance (qubool) form one of the pillars or essential parts of the marriage contract, without which it is not valid. The proposal is said by the wali (guardian) or his proxy and the acceptance is said by the husband or his proxy.
It is stipulated that the proposal and acceptance should come in one sitting. It says inKashshaaf al-Qinaa‘(5/41): If there is a lapse of time between the proposal and acceptance, it is valid so long as both are done in the same gathering and there is no distraction that would count as an interruption according to local custom, even if the interval between the two is lengthy. But if they part before the acceptance is spoken after the proposal has been issued, then the proposal becomes invalid. The same applies if there is a distraction that interrupts the proceedings according to local custom, because that is turning away from it and it is as if the proposal had been rejected. End quote.
Similarly, it is also stipulated that witnesses be present in order for the marriage contract to be valid.
Based on that, the scholars differed with regard to doing the marriage contract by using modern needs such as the telephone and the Internet. Some of them say that that is not permissible, because of the absence of witnesses, even though the presence of two witnesses on the phone at the same time comes under the same ruling as if they were in the same place. This is the view of the Islamic Fiqh Council (Majma‘ al-Fiqh al-Islami).
Some of the scholars are of the view that this should be disallowed, as a precaution to protect the marriage, because it is possible to imitate a person’s voice and thus deceive others. This is what is stated in fatwas issued by the Standing Committee for Issuing Fatwas.
Some of the scholars regard it as permissible so long as there is no risk of tampering. This is what was stated in fatwas issued by Shaykh Ibn Baaz (may Allah have mercy on him).
Thus it is known that the problem is not the issue of being the same place, because contact between both parties at the same time via the phone or Internet comes under the same ruling as if they were in the same place.
It is also possible for this marriage contract to be witnessed, by hearing the voice of the speaker over the phone or Internet; in fact with technological advances nowadays it is possible to see the wali and hear his voice when he makes the proposal, and it is also possible to see the husband.
Hence the most correct view with regard to this matter is that it is permissible to do the marriage contract over the phone or Internet, if there is no danger of tampering, the identity of the husband and wali is proven, and the two witnesses can hear the proposal and acceptance. This is what was stated in fatwas issued by Shaykh Ibn Baaz (may Allah have mercy on him), as stated above. It is also what is implied by the fatwa of the Standing Committee, which disallowed marriage in such cases as a precaution and for fear of deceit.
The one who wants to be on the safe side may do the marriage contract by appointing proxies; so the husband or guardian may appoint someone to do the marriage contract on his behalf in front of witnesses.
There follow the comments of scholars that confirm what we have referred to:
1. Statement of the Islamic Fiqh Council:
Statement no. 52 (6/2) concerning the ruling on contracts via modern needs of communication.
After stating that it is permissible to do contracts via modern means of communication, the Council said:
The guidelines mentioned above do not apply to the marriage contract, because of the stipulation that witnesses be present in that case. End quote.
2. Fatwa of the Standing Committee for Issuing Fatwas:
Question: if the pillars or essential parts and conditions of the marriage contract are fulfilled, except that the wali and the husband are in different countries, is it permissible to do the marriage contract by phone or not?
Answer: because nowadays deceit and trickery are widespread, and some people are skilled at imitating others, and some are able to make their voice sound like a number of people, male and female, young and old, and even speak different dialects and languages, so that the listener thinks that several people are speaking when in fact it is only one person, and because Islamic sharee‘ah is concerned with protecting people’s chastity and honour, and takes more precautions than other religions with regard to contracts and dealings, the Committee thinks that it is not appropriate, with regard to marriage contracts, the proposal and acceptance, and appointing proxies, to handle such matters over the phone. This is in order to achieve the aims of sharee‘ah and protect people’s chastity and honour, so that those who follow whims and desires and those that seek to deceive and cheat people will not be able to toy with matters of marriage. And Allah is the source of strength.
End quote fromFataawa al-Lajnah ad-Daa’imah, 18/90
3. Fatwa of Shaykh Ibn Baaz (may Allah have mercy on him)
Question:
I want to get married to a girl and her father is in another country; at present I cannot travel to meet him and do the marriage contract, for financial or other reasons. I am currently in a foreign country. Is it permissible for me to call her father so that he can say to me, “I give you my daughter So and so in marriage,” and I can say, “I accept.” The girl agrees to the marriage and there are two Muslim witnesses who can listen to what I say and what he says, via the speakers on the phone. Is this regarded as a legitimate marriage contract?
Answer:
The website put this question to Shaykh ‘Abd al-‘Azeez ibn ‘Abdullah ibn Baaz (may Allah have mercy on him) and he replied that if what is described is true (and there is no tampering involved), then it fulfils the conditions of shar‘i marriage and the marriage contract is valid.
And Allah knows best.