Muslim scholars have different views when a man and a woman commit adultery and then wish to put their relationship on the right basis through marriage

Marrying one’s Partner in Adultery

Similar Questions 

· Marriage between adulterers.
   · Marrying a pregnant adulteress.

The Issue

A man and a woman may commit adultery and then wish to put their relationship on the right basis through marriage. It is not infrequent that a man living in the West goes to an Islamic centre accompanied by a pregnant woman. The pregnancy may be by him or someone else, or she may not be pregnant but the two had committed adultery. He declares that he wishes to marry her.  

Ruling

There are two issues in this question. The first is marrying a pregnant adulteress. Scholars differ on this issue with the first view permitting such a marriage. Contemporary authorities that advocate this view include: 

The European Council for Fatwa and Research. Its decision says: If the two adulterers repent and want to desert the illegitimate relationship in favour of one which is lawful and abandon their sinful past, their marriage is universally agreed to be lawful. The majority of scholars do not make repentance a condition for the legality of marrying an adulteress. It is reported that 'Umar administered the punishment of adultery on a man and a woman and was keen to get them married.[1]

Only the Hanbali school of Islamic law makes repentance by the adulterer a condition for the validity of their marriage. They cite in support

Scholars have different views on whether an adulteress needs to observe a waiting period before she can be married.

 We are in support of the view of the Hanafi and al-Shafi[i schools of Islamic law as well as al-Thawri. They maintain that an adulteress need not observe any waiting period, even though she may be pregnant. This view is reported to have been endorsed by three of the four rightly-guided Caliphs, Abu Bakr, 'Umar and 'Ali.[2] They cite in support an authentic

 The hadith means that if a married woman gets pregnant through adultery, the child belongs to her husband while her partner in adultery has no claim to the child. The waiting period is required to ensure that the woman is not pregnant, so that the child belongs to its real father. In the case of adultery, this does not apply, and therefore no waiting period is required. 

If a man marries a woman who is pregnant through adultery with another man, their marriage is valid according to the Hanafi school, but he may not have intercourse with her until she has given birth. This is based on

If the pregnancy is by the husband but before their marriage, the marriage is valid according to the Hanafi school and other scholars, and they are all in agreement that intercourse between them is permissible.[3]

The Assembly of Muslim Jurists of America said in its final statement at the end of its second convention in Copenhagen, 2004: ‘The Assembly chooses the view that the marriage of an adulterer with the woman who was his partner in adultery is valid. It fulfils the Islamic objective of no publicity of adultery. Moreover, it encourages such adulterers to repent of their sin and mend their ways. As for affiliating the child to the man who committed adultery with its mother, the Assembly takes a provisional decision that it is permissible to affiliate the child to the adulterer outside Muslim countries, if he claims it and the mother is unmarried. This is to protect the child against the consequences of growing up in these societies without belonging to a family. The Assembly postpones taking a final decision on this question until its next convention, so as to allow a chance for more in-depth consideration.’

The second view does not permit such a marriage unless two conditions are fulfilled: repentance by the parties and the completion of a waiting period.

Among the scholars who support this view is the General Secretary of the Assembly of Muslim Jurists of North America. He said: If a woman commits adultery, it is not lawful to marry her without the fulfilment of two conditions: one is her repentance and the other her observation of a waiting period. The evidence supporting this includes

 As God ordered the punishment of both adulterers, He also forbade the believers to marry them so as to leave them and their sins. God makes clear that an adulteress may be married only to an adulterer or an idolater. Such a man either believes in what God has legislated and that it is applicable to Him or not. If he does not abide by God’s verdict and believe in it, he is an idolater, and if he commits himself to it, believing that it applies to him, but he has violated it, then he is an adulterer. Then God makes clear that such a marriage is forbidden: ‘This is forbidden to the believers.

 The corrupt women are those who commit adultery. The verse makes clear that a believer must not marry a corrupt woman because he himself is not corrupt. Her corruption is removed by sincere repentance, coupled with a resolve not to go back to sin. Therefore, if she removes her corruption through repentance, she may be married. This is further supported by the hadith that mentions that ‘Marthad al-Ghanawi used to support and free captives in Makkah. There was in Makkah a prostitute called 'Anaq, and he was friendly with her. 

Some scholars disagree that this is a condition, but the correct view is that it is. One of the worst situations is to be married to a prostitute. This is readily accepted by human nature. 

The question of observance of a waiting period is subject to dispute among scholars. The Hanafi school makes clear that no waiting period is required of an adulteress. Therefore, it is permissible for her to get married without observing a waiting period or its completion. If her pregnancy is by the man she marries, all scholars agree that they may be married and have intercourse. 

The argument these scholars advance is that the prohibition of marriage to a woman who is known to be pregnant is that it is prohibited to have intercourse with a pregnant woman, but adulterous intercourse bears no sanctity as it proves no parenthood. If the woman is pregnant by someone else, it is permissible to have a marriage contract with her but, according to Abu Hanifah and Muhammad ibn al-Hasan, it is forbidden for them to have sexual intercourse until she has given birth. Performing the marriage contract is permissible because the adulterous relationship has no sanctity. The prohibition of intercourse is to avoid what is mentioned

Abu Yusuf and others of the Hanafi school disagree, maintaining that it is not permissible to perform a marriage contract with a woman who is pregnant through adultery. Her pregnancy forbids intercourse with her, so it forbids making a marriage contract. The purpose of the marriage is to make intercourse lawful. If intercourse is not lawful, then the marriage contract is of no use, and as such it is not permissible. 

A counter argument suggests that the prohibition of intercourse is due to a temporary cause that does not preclude the initiation or continuation of the marriage. Just like a woman being in the period, or in the postnatal period, does not prohibit her marriage even though it prohibits intercourse, it is permissible to perform a marriage contract with a pregnant adulteress. 

According to the Shafi'i school, the adulterer’s fluid that caused the pregnancy is a waste and cannot prove relationship or cause prohibition. Therefore, a pregnant adulteress has no waiting period to observe whether she is pregnant or not. If she is not, her partner or anyone else may have a contract to marry her. If she is pregnant, it is reprehensible to marry her before she gives birth. 

The Maliki and Hanbali schools state that an adulteress may not be married until she has observed a waiting period. If she is pregnant, she must first give birth, and if she is not, she should first go through three menstrual periods. 

Perhaps what is closer to the objective of Islamic law is to say that marriage between the two partners to an adulterous relationship is permissible if they sincerely repent, and this is not conditional on the completion of a waiting period. The basis of scholars who prohibit such a marriage is the multiplicity of partners during the pregnancy, but if the pregnancy is by the man who is to marry the woman, this does not apply. 

The second issue is her marriage to her partner in adultery. 

Shaikh al-Rafie says in his book on family laws for Muslims in the West: ‘Such a marriage is not lawful until she has confirmed that she is not pregnant. Unless this has been confirmed, the possibility of her being pregnant is there. It is well known that intercourse with a pregnant woman is unlawful. Moreover, confusion about the father of the child is stronger in the case of a woman who fornicates with several partners. If a woman is confirmed to be pregnant and the pregnancy is through adultery, the child is affiliated only to its mother. If no pregnancy is confirmed and she gets married before confirming that she is not pregnant, the pregnancy may be the result of adultery or the subsequent marriage and this confuses family relations, which is forbidden.[4]
 

Sources

· Salim ibn Abd al-Ghani al-Rafie, Ahkam al-Ahwal al-Shakhsiyyah lil Muslimin fi al-Gharb.
   · Fatawa Dar al-Ifta, Shaikh Abd al-Majeed Saleem.
   · www.rogulf.com
   · Website dedicated to the works of Shaikh Abdullah ibn Jebreen: www.ibn-jebreen.com.   
   · The website of the European Council for Fatwa and Research: www.e-cfr.org.  
   · The website of the Assembly of Muslim Jurists of America (AMJA): www.amjaonline.org.   
   · Home page for IslamWeb.net website: www.islamweb.net.