Ruling on marrying a divorcee during her ‘Iddah
14-1-2014 | IslamWeb
Question:
I married a European woman who reverted to Islam since the first day of our marriage, praise be to Allaah. However, she was previously married to a Christian man but they were separated six years ago and she received the verdict on her divorce case and was legally divorced only a week before our marriage. Thus, we got married before the end of her ‘Iddah i.e. post-marriage waiting period. Should she spend ‘Iddah in her case? Have we committed a sin? What should we do, given that we have been married for seven months?
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 ‘alayhi wa sallam, is His Slave and Messenger.
Obviously, your marriage is invalid; for you have married a divorcee during her ‘Iddah i.e. post-marriage waiting period; since they might have had sexual intercourse during this six-year separation period to which you referred. Hence, she should wait three menstrual periods after divorce so as to make sure she is not pregnant. The Hanbali scholars believe that a divorcee should spend her ‘Iddah even if she was sure that she was not pregnant; for it is the Right of Allaah The Exalted over her. Moreover, notice, dear questioner, that the disbelievers are required to observe the Islamic obligations. Imaam Al-Buhooti, who belongs to the Hanbali School of thought, said, “The Thimmi, a free non-Muslim subject living in a Muslim country, divorcee should spend the due ‘Iddah, i.e. post-marriage waiting period, after getting divorced from her Thimmi or Muslim husband; as evidence is general in this regard, i.e. not restricted to Muslims only, and due to the fact that the disbelievers are required to observe the Islamic obligations.”
Hence, what you did is not right and you should now refrain from having sexual intercourse until she has three menstrual periods, then you may remarry her with a new marriage contract. However, some Muslim scholars believe in the permanent prohibition of marrying a divorcee who was married during her ‘Iddah, however, this is not what we think to be the preponderant opinion in this regard.
Furthermore, if she is pregnant from you, the child’s parentage is legitimately attributed to the father; for the fact that you had sexual intercourse with her [while being ignorant about this ruling] is among what dismisses the corporal punishment prescribed for such a crime and whatever alleviates the prescribed corporal punishment establishes parentage.
Allaah Knows best.