Fatwa ID: 08793

 

 

Answered by: Maulana Abdurrahman Mohammad

 

Question:

 

I am a Muslim and I married with a non-Muslim atheist European woman in May 2023 through a verbal contract that was held by Sheikh and 2 witnesses. He pronounced our marriage valid from the Sharia perspective. We did not register it or have any written contract.

 

Over the following few months, we never lived with each other in the same home, and only met occasionally.

A few months later I realised that this is not a sustainable or long term marriage, and I wrote to her the following on 18 February 2024: “I want you to feel fully released and fully free to move on with your life without any feel of guilt from your side…” At that point, she and I had not met in person nor spoken since early December 2023.

 

She understood clearly that this is breaking up the relationship. I have not seen her since then, so almost 1.5 years now.

I also had the intention and pronounced with myself that she is divorced now but I did not pronounce the divorce words to her because I thought she might not understand and might feel offended and enraged.

Is my divorce from her valid in this case? If not and if I did wrong in the process, what can I do to remedy things? I have since moved on and married someone else, a Muslim, with a normal contract and family involvement.

 

 

In the name of Allah, the Most Gracious, the Most Merciful

 

 

Answer:

 

Marrying Non-Muslims

Allah SWT says in the Quran:

Do not marry polytheistic women until they believe; for a believing slave-woman is better than a free polytheist, even though she may look pleasant to you. And do not marry your women to polytheistic men until they believe, for a believing slave-man is better than a free polytheist, even though he may look pleasant to you.^[1]

It is impermissible to marry non-Muslim women. This rule applies to idolators as well as people from all other belief systems, including atheism. The only exception to this rule is “the people of the book” as Allah SWT says in the Quran:

Similarly, the food of the People of the Book is permissible for you and yours is permissible for them. And ˹permissible for you in marriage˺ are chaste believing women as well as chaste women of those given the Scripture before you—as long as you pay them their dowries in wedlock, neither fornicating nor taking them as mistresses.^[2]

However, marrying Christians and Jews is a highly debated issue amongst contemporary scholars, as the Jews and Christians of today are far different than the Jews and Christians during the time of the Prophet SWS in terms of creed and practices.

 

If your wife was an atheist at the time of Nikāh, your Nikāh would not have been valid. If the Nikāh was invalid, she would not be suitable for divorce.

 

Implicit Words (Kināyah)

If the Nikāh was valid and someone were to intend divorce using the words you previously mentioned, the Talāq would take effect. This would constitute a Kināyah Talāq, which differs from Sarīh Talāq. Sarīh Talāq is when divorce is pronounced with explicit, clear words of divorce. Kināyah refers to indirect or ambiguous phrases that could imply divorce but may also have other meanings. These words do not result in an automatic divorce and require intention or a Talaq context for divorce to occur. Raddul Muhtār states:

According to the jurists (is whatever that was not stipulated for it) i.e. divorce (and has the possibility of it [divorce]) and other than it.^[3]

Fatawa Hindiyyah explains:

Divorce does not occur with them except with intention or by the indication of a situation.^[4]

 

The phrases “fully released,” “fully free,” and “move on with your life” are considered Kināyah words, meaning they can imply divorce, but they could also be interpreted in other ways. If the intention behind these words was to initiate divorce, then the divorce would have taken place and she would be free to marry someone else.

 

 

References:

 

[1] وَلَا تَنكِحُوا۟ ٱلْمُشْرِكَـٰتِ حَتَّىٰ يُؤْمِنَّ ۚ وَلَأَمَةٌۭ مُّؤْمِنَةٌ خَيْرٌۭ مِّن مُّشْرِكَةٍۢ وَلَوْ أَعْجَبَتْكُمْ ۗ وَلَا تُنكِحُوا۟ ٱلْمُشْرِكِينَ حَتَّىٰ يُؤْمِنُوا۟ ۚ وَلَعَبْدٌۭ مُّؤْمِنٌ خَيْرٌۭ مِّن مُّشْرِكٍۢ وَلَوْ أَعْجَبَكُمْ ۗ أُو۟لَـٰٓئِكَ يَدْعُونَ إِلَى ٱلنَّارِ ۖ وَٱللَّهُ يَدْعُوٓا۟ إِلَى ٱلْجَنَّةِ وَٱلْمَغْفِرَةِ بِإِذْنِهِۦ ۖ وَيُبَيِّنُ ءَايَـٰتِهِۦ لِلنَّاسِ لَعَلَّهُمْ يَتَذَكَّرُونَ ٢٢١

(Al-Baqarah 2:221)

[2] ٱلْيَوْمَ أُحِلَّ لَكُمُ ٱلطَّيِّبَـٰتُ ۖ وَطَعَامُ ٱلَّذِينَ أُوتُوا۟ ٱلْكِتَـٰبَ حِلٌّۭ لَّكُمْ وَطَعَامُكُمْ حِلٌّۭ لَّهُمْ ۖ وَٱلْمُحْصَنَـٰتُ مِنَ ٱلْمُؤْمِنَـٰتِ وَٱلْمُحْصَنَـٰتُ مِنَ ٱلَّذِينَ أُوتُوا۟ ٱلْكِتَـٰبَ مِن قَبْلِكُمْ إِذَآ ءَاتَيْتُمُوهُنَّ أُجُورَهُنَّ مُحْصِنِينَ غَيْرَ

(Al-Maidah 5:5)

[4] (كِنَايَتُهُ) عِنْدَ الْفُقَهَاءِ (مَا لَمْ يُوضَعْ لَهُ) أَيْ الطَّلَاقِ (وَاحْتَمَلَهُ) وَغَيْرَهُ

(Radd Al-Muhtār, vol. 3, pg. 296, Darul Fikr Beirut)

[5] لَا يَقَعُ بِهَا الطَّلَاقُ إلَّا بِالنِّيَّةِ أَوْ بِدَلَالَةِ حَالٍ

(Al-Fatāwā Al-Hindiyya, vol. 1, pg. 374, Al-Maṭba’ah Al-Kubrā Al-Amīriyyah)

 

 

Only Allah (عَزَّ وَ جَلَّ) knows best.

Written by Maulana Abdurrahman Mohammad

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham