Scholars have different views in case a woman embraces Islam before her husband. Some see that she stays lawful to him till she completes her waiting period. Others see that marriage dissolution should take place. 

A Woman Becomes a Muslim before Her Husband

Similar Questions 

· A recently converted woman remaining married to her non-Muslim husband.
   · A woman converts to Islam but her husband remains non-Muslim.
   · A Muslim woman remaining married to her unbelieving husband.

The Issue

A woman may adopt the Islamic faith but her non-Muslim husband chooses to continue to follow his own faith. How is the marriage contract affected? What happens to her family and children?

Ruling

Scholars differ on this question giving two distinct views: 

The first view considers that such a marriage cannot continue. Many scholars say that a Muslim woman cannot remain married to a non-Muslim. According to the majority of scholars, the dissolution of the marriage occurs when the woman embraces Islam. 

The Hanafi scholars take a different view, saying that the dissolution does not occur by the adoption of Islam itself, but when the other party is called upon to embrace Islam. If he does, the marriage remains in force. If not, the judge orders the dissolution. It is also said that the woman who has embraced Islam waits for her husband to accept Islam for the duration of her waiting period. If he declares his acceptance of Islam during the waiting period, she remains his wife. If the waiting period lapses and he embraces Islam after that, she can choose whether to go back to him or not.

The late Shaikh Muhammad ibn Uthaymeen gave the same ruling, saying: 

The question of whether a Muslim woman is unlawful to her non-Muslim husband is not subject to any scholarly verdict.

It is not a great issue to lose one’s child, spouse or parent in order to stick to one’s faith. Our goodly early Muslims might have disliked their parents or children when they took an attitude in opposition to the divine faith. Therefore, if a woman converts to Islam and her husband refuses to follow suit, most scholars agree that the matter is left in suspension until she has finished her waiting period. If the husband accepts Islam during this waiting period, the marriage remains in force and no dissolution takes place. If the waiting period is completed with the husband continuing to be a non-Muslim, we consider the marriage dissolved since the woman embraced Islam. She is unlawful to him unless he embraces Islam and they go through a new marriage contract. 

Some scholars are of the view that when a woman converts to Islam, she remains attached to her husband until she has completed her waiting period. She cannot marry anyone during this period. If he embraces Islam in the meantime, she is his wife. If the waiting period lapses and her former husband subsequently adopts Islam, she has the choice of going back to him. This is the view that carries the stronger weight. The Prophet returned his own daughter, Zaynab, to her husband Abu al-'As ibn al-Rabi' after a six-year separation. Thus, if a wife converts to Islam and her husband remains an unbeliever, a separation is enforced. If he converts to Islam before the lapse of the waiting period, she is his wife. She has no choice in the matter. If the waiting period is over, she may marry someone else if she so desires. If she remains unmarried and he subsequently accepts Islam, she may rejoin him in marriage, even though a longer period of time has lapsed.[1]

This is the view endorsed by eminent scholars including Ibn Taymiyyah and Ibn al-Qayyim, as well as Shaikh Muhammad ibn Uthaymeen and the Egyptian Dar al-Ifta in its Fatwa dated 12 July 1965. The basis of this view is

Abu al-'As declared himself a Muslim two years after the revelation of Surah 60, ‘Women Tested’, which includes the verses that prohibit marital relations between Muslim women and unbeliever men. It is clear that her waiting period was over much earlier. Nevertheless, the Prophet gave her back to him on the basis of their original marriage. 

The fatwa issued by the Egyptian Dar al-Ifta follows the same line. The former Mufti, Shaikh Ahmad Hereedi, said: 

The established ruling in the Hanafi school of Fiqh is that if a woman married to a follower of earlier religions, i.e. a Christian or a Jew, became a Muslim, her husband is invited to follow her example and also become a Muslim. If he does, their marriage remains valid. If he refuses, the judge will order the dissolution of the marriage because of his refusal. This judgement ends the marital relationship between them and removes any authority of the husband. The dissolution is considered an irrevocable divorce, whether the marriage has been consummated or not. This means that the husband cannot reinstate the marriage. The number of allowed divorces the husband may have is also reduced by one, even if he embraces Islam later and marries her again before she is married to someone else. In other words, if this dissolution of the marriage was the first between them and they are remarried after the husband embraces Islam, he can have no more than two divorces. 

The woman must observe a full waiting period, which means that she must have three full menstrual periods after the judgement dissolving the marriage is passed. The minimum acceptable period for having such three menstruations is sixty days. If she is pregnant at the time, her waiting period lasts until she has given birth. 

If the woman is neither pregnant nor one who menstruates, either because she is young and has not attained puberty or because she is already past menopause, then her waiting period is three months from the date of the dissolution, equal to ninety days. If the marriage has been consummated the husband must support her during this waiting period because the discontinuity of the marriage is caused by his refusal to accept Islam. By the same token, if he divorces her a second time during the waiting period, this divorce is effective.

The late Shaikh Hasan Mamoon, the former Rector of al-Azhar, issued a similar fatwa, saying: ‘We maintain that Islamic religious texts make clear that if a Christian woman married to a Christian man becomes a Muslim, her husband is informed about Islam and called upon to consider becoming a Muslim. If he does, their marriage remains in force. If he refuses, the judge will dissolve the marriage with an irrevocable divorce. This means that to enforce a dissolution of the marriage between a Christian woman who has converted to Islam and her Christian husband, he has to be called upon to become a Muslim. The dissolution can only take place by a judge’s order after that has taken place and the husband’s refusal to become a Muslim. If no judge’s order of dissolution is issued, the marriage remains in force. This makes clear that if a Christian woman who has converted to Islam marries a Muslim before her Christian husband has been invited to Islam and before a judge’s order of dissolution of her marriage has been issued this marriage is invalid, because she remains married to her Christian husband. An order of dissolution separating her from her second husband must be issued.

In Ahkam al-Ahwal al-Shakhsiyyah lil Muslimin fi al-Gharb, the author states: ‘If a non-Muslim married couple adopt Islam together, their marriage is confirmed and they continue to be married. If only one of them accepts Islam while the other does not, some details need to be explained. If the one who has become a Muslim is the husband and his wife is a Christian or Jewess, their marriage remains in force, because it is acceptable that a Muslim man can marry a follower of either of these religions. If the husband becomes a Muslim and his wife does not follow either of these religions, such as being an atheist, the marriage cannot remain in force. Islam does not permit a Muslim man to marry an unbeliever, except a Christian or a Jewess. In the case where it is the wife that becomes a Muslim, her marriage becomes invalid, because a Muslim woman cannot remain married to an unbeliever, regardless of the religion he follows.

Evidence

Those who are of this view cite in evidence the Qur’anic verse in which

The second view is stated by the European Council for Fatwa and Research which adopted a decision saying that a number of scholars allow the marital relation to remain valid in full, including sexual intercourse, under certain conditions including that the husband does not put his wife under any pressure regarding her faith and she hopes that he will accept Islam. The reason is that women should not be reluctant to accept Islam if this means that they will have to separate from their husbands and families. The decision, No. 3/8, is as follows: 

Having reviewed over three consecutive sessions the various papers and studies that discuss the question in depth and in detail; and having considered the different scholarly views and their bases, relating these to the essential principles and rules of Islamic jurisprudence and its objectives; and taking into account the special circumstances of new Muslim women in the West when their husbands decide to adhere to their own faiths, the European Council for Fatwa and Research reasserts that it is forbidden for a Muslim woman to marry a non-Muslim. This is unanimously agreed by Muslim scholars across all generations. However, if the marriage has taken place before the woman adopts Islam, the Council decides: 

1. If the couple convert to Islam together and the wife is not someone whom the husband cannot marry under Islamic law, such as being absolutely forbidden to him to marry because of being related to him through family or breastfeeding, their marriage remains valid and in force.
2. If only the husband adopts Islam and there is no valid reason to prevent their marriage and the wife follows a divine religion, their marriage remains valid.
3. If the wife adopts Islam while the husband retains his religion, the Council decides: 
a. If she becomes a Muslim before the consummation of the marriage, separation between them must be immediately enforced.
b. If the marriage has already been consummated before the wife adopts Islam and her husband then decides to be a Muslim before her waiting period is over, the marriage remains valid. 
c. If she accepts Islam after her marriage has been consummated, and her waiting period is completed, she may, if she wishes, wait for him to accept Islam, even though this may take a long time. If he decides to become a Muslim, their initial marriage is valid and there is no need to reconfirm it.
d. If the wife chooses to marry someone else after her waiting period is over, she must seek a dissolution of the marriage through the court.

4. According to the four schools of Islamic jurisprudence, the wife may not stay with her husband after her waiting period is over. Nor is she allowed to have intercourse with him. However, some scholars are of the view that she may stay with him with all their marital rights and duties in place provided that he does not put any pressure on her with regard to her faith and she hopes that he will embrace Islam. The reason is that women should not be reluctant to accept Islam if this means that they will have to separate from their husbands and families. In advocating this view, these scholars rely on the judgement of 'Umar ibn al-Khattab, the second Caliph, when he gave a woman who embraced Islam while her husband did not the choice ‘to part with him or to stay with him.’ This is an authentic report by Yazid ibn [Abdullah al-Khutami. They also rely on the verdict of the fourth Caliph, [Ali ibn Abi Talib, who says that if a Christian woman married to a Jewish or Christian man embraces Islam, he retains his right of physical marital relations with her, because he has a contract. This is also an authentic report. The same view is reliably reported to be also shared by Ibrahim al-Nukha'i, al-Sha'bi and Hammad ibn Abi Sulayman.The Journal of the European Council for Fatwa and Research, Vol. 2, No. 2, pp. 13–205.

The late Shaikh Faisal Mawlawi, former Vice-President of the European Council for Fatwa and Research, wrote a study under the title ‘Status of a Woman Convert to Islam Whose Husband Remains Non-Muslim.’Ibid., Vol. 2, No. 2, pp. 243–308.

 In this study, Shaikh Mawlawi expressed his disagreement with the study of Shaikh Abdullah al-Judai on the same subject. He started with an exposition of the conclusions arrived at by Shaikh al-Judai then he says that the case is subject to clear Qur’anic texts: 

These verses make clear that a woman who embraces Islam cannot remain married to a non-Muslim, which is the opposite of the conclusion of al-Judai’s study.

Shaikh Mawlawi refuted the claim that the Prophet’s companions and their successors unanimously approved of the continuity of marriage between a Muslim woman and a non-Muslim, stressing that the marriage contract becomes invalid. He explained the views of 'Umar ibn al-Khattab, [Ali ibn Abi Talib and other companions of the Prophet, their successors and scholars. He examined the evidence cited by Shaikh al-Judai in support of a woman remaining with her non-Muslim husband after she converts to Islam. He concluded with the view that the marriage must be dissolved if the woman becomes a Muslim without her husband, and explained how this is done and the reasons for it. 

Fiqh councils and assemblies have also discussed this question. The final statement of the second convention of the Assembly of Muslim Jurists of America [2] states: ‘If a woman embraces Islam while her husband remains non-Muslim, sexual intercourse between them immediately becomes forbidden. The marriage bond remains suspended during the woman’s waiting period. If the husband embraces Islam, the marriage remains valid and in force. If he chooses to retain his faith after the woman’s waiting period is over, the wife has a choice: she either applies to the court for the dissolution of her marriage or waits for her husband hoping that he will accept Islam. Whenever he does, they resume their marriage.

Sources

· Assembly of Muslim Jurists of America.
   · Islam Question and Answer: www.islamQA.info.  
   · The Message of Islam website: www.islammessage.com. 
   · The website of the Egyptian Dar al-Ifta: www.dar-alifta.gov.eg 
   · The European Council for Fatwa and Research. 
   · The Journal of the European Council for Fatwa and Research (Dublin), Vol. 2, No. 2.