Apostasy and Marriage
A Muslim woman can’t get married to an apostate but if apostasy takes place after marriage; some scholars consider this marriage dissolved. Others see that she can wait until her waiting period is over.
Apostasy and Marriage
· Continuity of the marriage of an apostate.
· Effect of difference in religion if it happens after marriage.
· The effect of the apostasy of one spouse on the marriage.
In countries which do not implement God’s law and the punishment for apostasy is not enforceable, one of the two spouses may say or do what should incur the punishment for apostasy. He then regrets what happened and prays to God to forgive him. This may happen more than once on the same day. Does this invalidate marriage?
This is not a new question; it is an age-old one and scholars have different views on it. What is new about it is that it frequently happens among Muslim minorities, like many other questions related to such minorities in particular.
One of the consequences of apostasy is that the marriage bond is severed, but scholars differ on whether this is considered a dissolution of the marriage or an irrevocable divorce. If apostasy occurs before the consummation of the marriage, the marriage contract is terminated. If it happens after the marriage has been consummated, the Maliki and Hanafi schools consider the marriage to have been immediately dissolved, while the Shafi'i school maintain that the marriage is terminated at the end of the woman’s waiting period. Both views have been reported as expressed by Ahmad ibn Hanbal.
The Kuwait Fiqh Encyclopaedia states the following:
All scholars agree that if either one of a married couple becomes an apostate they are forced to separate, so the man does not approach the woman, nor do they stay alone together, have intercourse or anything of the sort.
The Hanafi school adds: If either one of a Muslim married couple becomes an apostate, the woman is no longer his wife, whether she is a Muslim or the follower of another divine religion, or whether the marriage is consummated or not, because apostasy precludes marriage. The separation is an immediate dissolution of the marriage, not a divorce, and it does not require a ruling by a judge.
If the man is the apostate and this takes place before the marriage is consummated, the woman is entitled to half her dowry or to a gift. If the woman is the apostate, she is not entitled to anything. If the apostasy occurs after the marriage has been consummated, she is entitled to the full dowry, regardless of who of the couple is the apostate.
The Maliki school says in their more widely known view: If either one of a Muslim married couple becomes an apostate, the apostasy causes a single and immediately irrevocable divorce. If he re-embraces Islam, she can only be reunited with him in marriage through a new marriage contract. If the woman is the apostate and she intends her apostasy to dissolve her marriage, the marriage is not dissolved and she is given the opposite of her intention. It is also said that apostasy constitutes a dissolution of the marriage without a divorce.
The Shaf'i school says: If either one of a Muslim married couple becomes an apostate, their marriage is not dissolved until she has completed her waiting period and he has not repented of his apostasy and re-embraced Islam. When her waiting period is over, she is totally separated from him on the basis of dissolution of the marriage, not divorce. If he re-embraces Islam before the end of her waiting period, she is his wife.
The Hanbali school says: If either one of a married couple becomes an apostate before the marriage has been consummated, the marriage is immediately dissolved and if the man is the apostate she is entitled to half her dowry, but if she is the apostate, she is entitled to nothing. If the apostasy takes place after the marriage has been consummated, one report says that the dissolution is immediate and another that it occurs after the completion of the woman’s waiting period.The Kuwait Fiqh Encyclopaedia, vol. 22, p. 198.
Fatawa al-Azhar includes a fatwa by Shaikh Muhammad Abdou which says: It is firmly established in Islam that an apostate is a person who has renounced Islam. The apostasy of either spouse constitutes dissolution of the marriage and the woman is finally separated from him. Therefore, in the case presented before us, once the husband referred to is confirmed to have renounced the Islamic faith, his marriage to his named wife is dissolved and she is finally separated from him. When her waiting period following his apostasy is over, she may marry someone else.
The IslamQA website includes the following fatwa:
If the husband says what constitutes apostasy and renunciation of Islam, such as verbal abuse of God or His messenger, or denial of something of the faith that is essentially known to all, then if the apostasy occurs before the marriage has been consummated the marriage is immediately dissolved. Ibn Qudamah said: ‘If either spouse becomes an apostate before the marriage is consummated, the marriage is dissolved according to all scholars, but it is reported that Dawood was of the view that it is not dissolved, because marriage normally stays in force.
In response we refer to the Qur’anic verses
Do not hold on to marriage ties with unbelieving women
They are no longer lawful [as wives] for the unbelievers, and these are no longer lawful to them.
The situation becomes one of difference of faith that prohibits sexual intercourse between them. Therefore, the dissolution of the marriage becomes necessary, just as in the case of a woman married to an unbeliever and she embraces Islam.
If the apostasy takes place after the marriage has been consummated, the question is whether the dissolution of the marriage takes place immediately or after the completion of the woman’s waiting period. Scholars differ on this point.
The Shafi'i school and the more reliable view of the Hanbali school is that if the man re-embraces Islam before the woman has completed her waiting period, the marriage remains in force. If the waiting period is over before he re-embraces Islam, the dissolution takes place, and he cannot be reunited with her in marriage without a fresh marriage contract.
The Hanafi and Maliki schools take the view that apostasy brings about an immediate dissolution of the marriage, even after it has been consummated. Some scholars are of the view that if the apostate man repents before the waiting period has been completed he may be reunited with his wife, if she accepts and she has not married another man.
The late Shaikh Muhammad ibn Uthaymeen responded to a question about a husband who is considered an apostate because he abandoned prayer. He said that there are only three possibilities:
(i) The apostasy takes place before the marriage contract. In this case, the contract is invalid and the woman does not become his legal wife.
(ii) it takes place after the marriage contract has been made but before the marriage is consummated and the couple have not been privately together so as to require a waiting period when the marriage is broken. In this case, the marriage is dissolved once the man has stopped praying.
(iii) it takes place after the marriage has been consummated or after the couple have been privately together. In this case, the dissolution takes place when the woman has completed her waiting period. If he repents and starts praying before the waiting period is over, she remains his wife. If not, the marriage is dissolved from the time of the apostasy. In this case, the couple may or may not be reunited in marriage, provided that he re-embraces Islam and wants reunion. Scholars have their different views on this point.
A fatwa published by IslamWeb.net answers the question about the status of the wife. It says that the majority of scholars consider that apostasy by either spouse means the dissolution of the marriage, without divorce. Al-'Abbadi, a Hanafi scholar, said in his annotation of Mukhtasar al-Qadduri: Acccording to Abu Hanifah and Abu Yusuf, if either spouse becomes an apostate, their marriage is terminated by dissolution, not divorce. Muhammad ibn al-Hasan, on the other hand, says that if the husband is the apostate, the marriage is terminated by divorce.
Al-Nawawi, a leading Shafi'i scholar said in Al-Minhaj: If the marriage is dissolved by apostasy after it has been consummated, the dowry is due. Thus, he considers the termination a dissolution of the marriage.
Ibn Qudamah, a leading Hanbali scholar said in Al-Muqni': If either spouse becomes an apostate before the consummation of the marriage, the marriage is dissolved. She is not entitled to any portion of the dowry if she is the apostate, but if it is the husband then she is entitled to half the dowry. If the apostasy occurs after the consummation of the marriage, does the dissolution occur immediately, or on the completion of the waiting period? Two views are reported.
Again the point here is that he calls the termination of the marriage a dissolution.
We see that all three schools of Islamic law consider the apostasy to cause dissolution of the marriage, although they differ as to when this dissolution occurs: immediately, as the Hanafis say, which means that they cannot be reunited in marriage unless the man repents and goes through a fresh marriage contract. The other views differentiate on the basis of the time of apostasy: if it occurs after consummation, the marriage is dissolved after the woman has completed her waiting period and the man has not repented. They cannot have intercourse before he has declared his repentance. On the other hand, if the apostasy occurs when the marriage has not been consummated, the dissolution is immediate. This distinction between the two situations is the view of the Shaf'i school and one of the two reports of the Hanbali school.
The Maliki scholars have taken a different view to all these schools, considering apostasy to create a single irrevocable divorce that takes place immediately when the apostasy is ascertained. Ibn Farhun says in Tabsirat al-Hukkam: ‘Apostasy by either one of the spouses is an irrevocable divorce.’ This is the view of Al-Mudawwanah. Ibn al-Majashun reported that Malik considered it dissolution of the marriage, not a divorce.
The difference between the majority view and the Malikis, or between those who consider apostasy dissolution of the marriage and those who consider it divorce, is that if the apostasy is repeated and each time the couple are reunited in marriage, they may do so more than three times. According to the Maliki view, which considers apostasy a divorce, the marriage cannot be reinstated after the third time, unless the wife is married first to someone else and then gets divorced or becomes a widow in the normal course of life.
We are more in favour of the Maliki view, which makes apostasy result in an irrevocable divorce, because it is a separation resulting from uttering some words, and as such it is similar to divorce.
Therefore, the woman who put this question must not have any sexual relations with this man. He can renew his marriage to her again, up to three times, but if he commits apostasy again their separation is final. If he then repents and re-embraces Islam, she may not be married to him again unless she has first married another man. Alternatively, if he has not reached that number but commits apostasy she is irrevocably divorced from him. To be re-married to him they need to have a new marriage contract, and in this case we tell her that he is not a suitable husband. Islam urges its followers to marry a person who is religious. What sort of faith does a person have who dares to curse God Himself several times?
· The Kuwait Fiqh Encyclopaedia.
· Fatawa by the Egyptian Dar al-Ifta.
· Islam Question and Answer: www.islamQA.info.
· Home page for IslamWeb.net website: www.islamweb.net.