Marriage without the bride's wali is defective
10-1-2016 | IslamWeb
Question:
Assalaamu alaykum. I got married to my muslim husband eleven years ago and was Christian at the time. There were two witnesses and the imam who conducted the marriage. I did not have any wali (legal guardian) present because my family opposed the marriage, and they still do so now. I gave my consent to the marriage, but my husband and I were not aware that even though I did not have a wali from my family I still needed to get someone to represent me. We now have four children and, alhamdulillah, I accepted islam five years ago. Is our marriage valid, or do we have to redo it? If we have to redo it, can I put a condition - that my husband does not take a second wife unless I agree to it - to the marriage contract? The reason that I am asking about the condition is that my husband promised me that he would only get a second wife if I agreed, but he broke his promise. He divorced his new wife after one month of marriage because she was persistently disobedient to him and they generally did not get along. I also was not aware of the permissibility to attach the condition to the marriage (at the time). Please remember my family in your supplications.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ʻalayhi wa sallam, is His slave and Messenger.
Verily, it is a great blessing bestowed by Allaah upon His slave to guide him to Islam; it is the ultimate grace through which one can attain happiness in the worldly life and the Hereafter. We implore Allaah to bless us and you with the word that stands firm in this worldly life and the Hereafter. We ask Him to safeguard you, your husband, and your children and to help you give them a good and righteous upbringing.
According to the preponderant scholarly view that is adopted by most of the scholars, the presence of the bride's wali is among the conditions for the validity of the marriage contract. Please, refer to fatwa 83629. When a Christian or Jewish woman marries a Muslim man, then her Christian or Jewish guardian can act as her wali in the marriage contract. If her non-Muslim wali refused, then, according to the view of some scholars, a priest or rabbi may act as her wali; the Muslim judge may act in the capacity of her wali in the marriage contract as well, or whoever is acting in his place, like the Islamic center, for instance, according to the view of other scholars.
Hence, based on the preponderant scholarly view adopted in Islamweb, your marriage contract is defective and must be renewed properly given that the condition of the wali's presence was absent. For more benefit, please refer to fatwa 88488.
As for the permissibility for a woman to stipulate that her husband should not take another wife in the marriage contract, please refer to fatwa 98945.
It should be noted that in case of a defective marriage, the children born out of that marriage are attributed to the father (husband) due to the mistaken belief of the parents that their contract was lawful, in accommodation of the scholarly view that a marriage contract is valid if conducted in the absence of the bride's wali. This is the view of Imaam Abu Haneefah 
. For more benefit, please refer to fataawa 126168 and 86773.
Allaah knows best.