Marriage with a Woman who Apparently was not Divorced

Answered by Shaykh Yūsuf Badāt

Question:

I, recently married in Pakistan (12^th March 2021). My wife had two divorces before so I am her third husband.  Few days ago, when I asked her that I did not see your khula’ (Islamic divorce) papers with consent of your ex-spouses of divorce. She said they are at her mother’s house and I can ask her father because he keeps all paper work. I called her father on 30th June 2021 for the divorce documents. He stated that he was cleaning the house and shred all the documentation related to the Islamic divorces. Keep in mind I am a permanent resident of Ireland and I told them from the beginning of my conversation (Oct 2020) that I need all documents of divorce for her visa application. Then I requested her father to provide the ex-spouses’ contact details so that can confirm the divorce with them. He refused to give me any details. I offered my wife to declare the truth so that if the ex-spouses did not grant divorce,  I would talk with them finalize the matter thereafter we can redo our nikāḥ. She refused my offer.  I have also asked her father to apply for the duplicates from the court for her divorces. Now, even after some time, they are not responding on my requests. My questions are as follows:  

1. Is it necessary and inevitable that I have to see her divorce documents? If yes, then should I also verify with her ex-spouses?
2. In case of her father’s refusal to show me the divorce documents, what would be the value of my marriage under the light of Islamic law?
3. What would happen to the terms and conditions written during the nikāḥ, such as the mahr (bridal gift) (my mahr was one lakh Pakistani rupees where I paid 25 000 already, 75 000 rupees is promised for later). Similarly, I agreed in the marriage documents that I would apply her visa to Ireland and would also pay 20 000 Pakistani rupees as monthly expenses. Will these terms and conditions nullify if marriage is void?

Please do not hesitate to ask any further details.

Answer:

بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

In the name of God, Most Merciful, Most Kind

Jazāk Allāh Khayr/ Thank you for contacting Mathabah Institute for your questions.

In response to your queries, please note the following:

1. In order for an Islamic marriage to be valid, it is mandatory for the woman you wish to marry, be islamicaly divorced from her previous husband. Seeking documents to prove the Islamic divorce or by contacting the ex-husband, is helpful in ascertaining any doubt.
2. If the woman you have apparently married and her parents are refusing to produce documents that would confirm the Islamic divorce and you have reasonable doubts about a valid termination of the previous marriage, then we would advise to hold off on continuing the relationship unless the matter is ascertained. This is because if she is still islamicaly married to the previous husband, your current nikāḥ with her would be invalid. This is something you should have verified before getting married to her. [1]
3. If the nikāḥ is invalid, all the terms of such a nikāḥ contract are also invalid and nullified. – (See: Al-Tafsīr Al-Ṭabarī, Maktabah Ibn Taimiyah Vol 8, Page 152 [2], Radd Al-Muḥtār, Dār ‘Ālam Al-Kutub, Vol 5, Page 252 [3])

“And [also prohibited to you are all] married women.” – (Qur’ān 4:24) [4]

Only Allāh knows best.

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[1]   – الدر المختار (قَوْلُهُ: نِكَاحًا فَاسِدًا) هِيَ الْمَنْكُوحَةُ بِغَيْرِ شُهُودٍ، وَنِكَاحُ امْرَأَةِ الْغَيْرِ

[2] (والمحصنات من النساء إلا ما ملكت أيمانكم)  يقول كل امرأة لها زوج فهي عليك حرام – التفسير الطبري

[3]  وَلَا تَجِبُ الْعِدَّةُ لِأَنَّهُ نِكَاحٌ بَاطِلٌ – الدر المختار

[4] – النساء ٢٤  وَالْمُحْصَنَاتُ مِنَ النِّسَاءِ إِلَّا مَا مَلَكَتْ أَيْمَانُكُمْ