Is it a Valid Nikah or is Divorce Needed?

CategoriesMarriage [581]Tagged , , , , ,

Fatwa ID: 03555

Answered by: Alimah Nasima Umm Hamza

 

Question

I am an English convert and have gone through what appears to be an Islamic marriage process in Egypt with two male witnesses present and a so-called 'wali' whom they brought to 'represent' my interests but I had never met or seen before in my life. No 'mahr' was ever discussed or paid and the marriage was never legally registered in Egypt. We just signed an informal contract which I later discovered was prepared by a crooked lawyer who was in cahoots with them.

 

The contract says we were married according to sunnah and mentioned a mahr of £1 but this was never discussed with me or even mentioned before I signed it and I never agreed to it prior to the marriage process. Also, it was never formally paid as it was such a tiny sum of money it was considered irrelevant. I want to stress that I never formally agreed to waive any of my rights to have a wali and a mahr, this was a rushed situation where I was being taken advantage of for financial gain.

 

In Egyptian law, it is considered that I was never married and do not need to get divorced as it was not a formally registered marriage through the court.

 

The 'marriage' was very difficult from the beginning and he was eventually violent to me and stole money and property from me and I had to escape the house after he was violent and kept me a prisoner and threatened me for 3 days. I spent a total of 4 years with him before I left. There were no children.

 

After leaving, I tore up the informal marriage contract and informed him that the relationship was finished and I would never return. I also told him that it seemed clear the marriage process was a sham (fake) and he intended nothing proper by doing it as I had never been given my rights or the opportunity to waive them. He maintained I was his wife under the laws of Islam and continually refused to say the words "I divorce you" and so this is a big worry for me now.

 

I have not seen him for 4 years and have no form of contact with him.

 

I now wish to remarry but I am worried that in the sight of Allah perhaps I am still married? I am confused about whether I was ever really married in Islamic law. It is very difficult to discuss this matter with my future husband

– he is aware of the previous situation and knows the family who I have since discovered make a business out of swindling foreign women and told my future husband this to his face.

 

They even offered to "sell" me to him i.e. leave us alone if we pay them a large sum of money. They have attempted to get my future husband sacked from his job (he is a police officer and had arrested my previous partner for the violence and theft against me). I have several court cases against my ex and two of his brothers for threats, violence and theft – I already have 2 court judgements in my favour against them.

 

My future husband says that this man was intending to defraud and cheat me from the beginning and never intended to treat me properly as a wife or respect my rights in Islam – he says the marriage process was a deliberate sham (fake) and just acting like a sort of theatre and lies to let me think I am married but in reality, I was just someone they all wanted to exploit financially. My future husband says they are just professional criminals and the Islamic vows do not count in the sight of Allah because their intention was evil and not really from the beginning.

 

In Egypt, where I had this informal marriage, it is considered to be an end to the informal 'marriage' if either party destroys the contract and chooses to end the relationship. They call it an 'orfi' (unofficial) marriage as it is never registered in the court and does not require the legal process of divorce. Some sheikhs here are of the view that these 'orfi' marriages are haram and invalid and are used only as an excuse for cohabitation, which is illegal in Egypt.

 

If I now enter into an officially legal and registered marriage to my future husband through the Egyptian court, will this mean I am also considered his wife from an Islamic standpoint? I do not want to do anything Haraam and my future husband is a good Muslim and it seems clear that the previous marriage situation does not count Islamically and any pseudo-legal aspect has been nullified by me destroying the informal contract and leaving the relationship.

 

Please advise if I can go ahead with a new marriage and whether it will be halal for me and my future husband.

 

بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

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

 

Answer:

The conditions of a valid nikah are to have an offer (ijaab) and acceptance (qabool), alongside 2 male witnesses or 1 male witness and 2 female witnesses.[1]

The mahr is not a condition of a valid nikah, and the marriage is sahih (valid) without it.[2]

Since your marriage to this Egyptian meets all the aforementioned conditions, it is viewed in the Shariah that you are still married to him. This is irrespective of whether the marriage is recognised by the Egyptian law or not.

 

I am sorry to hear that the marriage was not what you expected from it, and that you were used and abused. You are well within your rights to seek a Khul’ (divorce initiated from the wife’s side) from this man. You will need to contact your local Shariah Council, explain fully your circumstances and that you wish to be freed from your suffering in this marriage. They can initiate the Khul’ proceedings and if your husband is not willing to cooperate, they are able to annul (faskh) the marriage.

 

I would also like to remind you that it is not permitted for you to agree to marriage with someone else, or to interact with a non-mahram man without need. It is best that you cut ties with this other man until you have ended this current marriage, and then if you still wish, you can send a proposal of marriage. Seek support from friends and family in this testing time. May Allah (swt) make it easy for you.

 

Only Allah knows best

Written by Alimah Nasima Umm Hamza

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham

 


[1] Al-Hidayah, Imran Nyazee Translation, 577-578

[2] Ibid, Page 597

 

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