Aslam

Praise be to Allah.Firstly:

If the woman

says that she was married then she got divorced and her ‘iddah ended, should

her word be accepted or is it essential to have proof to confirm that she is

divorced? There is a difference of opinion among the scholars concerning

that.

Some of them

say that her word should be accepted and she should be believed, because she

is responsible for herself.

Others say

that if it is thought most likely that she is telling the truth, it is

permissible to believe her.

Others make

a distinction between one who is a stranger and one who is living in her own

city. The word of the former should be accepted ,whereas the one who is in

her own city should not get married until proof of her divorce is brought.

Some of them

make a distinction between her telling of her divorce from a specific

husband, such as saying, “So and so married me then he divorced me” and her

speaking of marriage to an unspecified person. In the former case it is

essential to bring proof that she has been divorced by him.

There

follows a brief look at the comments of the fuqaha’:

It says in

al-Mabsoot (5/151): If she says: My husband divorced me or died, and

my ‘iddah has ended, it is permissible for her fiancé to marry her and

believe her, because the issue of halaal and haraam is something that is

determined by sharee’ah and every Muslim is responsible for himself and his

words may be accepted with regard to issues that are decided by sharee’ah,

but his word is not to be accepted with regard to someone else if the other

person says that he is lying. Hence it is permissible to accept her word

concerning that. And Allaah knows best what is correct. End quote.

It says in

al-Habr al-Raa’iq (4/64): He indicated that the word of a divorced

woman may be accepted when he said: If a (previously) married woman said to

another man: My husband divorced me and my ‘iddah has ended, then it is

permissible for him to believe her if he thinks it most likely that she is

telling the truth. End quote.

‘Aleesh

al-Maaliki (may Allaah have mercy on him) was asked, as it says in Fath

al-‘Aliy al-Maalik fi’l-Fatwa ‘ala Madhhab al-Imam Maalik (2/78): What

is your opinion about a woman who came from Fayyoom to al-Qalyoobiyyah and

says: I was married in al-Fayoom, and my husband divorced me two months ago,

and she has a document confirming a divorce, dated and sealed with the seal

of the qaadi in the city where she used to be, and she wants to get married

after her ‘iddah ends based on the date of the document. May she be allowed

to do that? Please answer.

The answer

was: Praise be to Allaah and peace and blessings be upon our Master

Muhammad, the Messenger of Allaah. Yes, she may be allowed to do that

because she is to be believed in her claim to be divorced and her claim that

the ‘iddah has ended in the manner described, especially since her claim is

supported by the document from the qaadi. This is what is indicated by the

texts. But further proof should be established because of what we see

nowadays of many women cheating and having several husbands at once. We ask

Allaah to keep us safe and sound. End quote.

Al-Zarkashi

said in al-Manthoor fi’l-Qawaa’id (1/171): If she says: My husband So

and so divorced me and my ‘iddah is over, and she asks the judge to conduct

a marriage for her, in Adab al-Qadaa’ by al-Dubayli it says: If she

is a stranger and her (former) husband is absent, then her word should be

accepted with no proof or oath. If the husband is in the same city and she

is not a stranger, then the judge should not conduct a new marriage until

her claim has been proven.

In Fasl

al-Tahleel, al-Raafa’i said that her word should be accepted if it is

plausible, and he quoted from Fataawa al-Baghawi: If a man and a woman

appear before the qaadi, and she asks him to marry her to this man, and says

that she was the wife of So and so but he divorced her or died, the qaadi

should not proceed with the marriage until proof of the divorce or death has

been established, because she has admitted to being married to So and so.

End quote.

Al-Ramli

al-Shaafa’i was asked about a woman who said that her husband So and so

divorced her or died, and her ‘iddah has ended; can the judge conduct her

marriage without any proof? He replied that the judge cannot conduct her

marriage until proof of what she says has been established, because she

admitted to being married and marriage in principle is still valid (unless

there is evidence to the contrary). This is unlike the case if she admits

having been married without specifying a person.  This is what is indicated

by what al-Dubayli said in Adab al-Qadaa’, [and he quoted the words of

al-Zarkashi mentioned above], and what al-Qaadi mentioned in his fatwa that

if the woman claims that her husband has died or has divorced her in front

of her wali, and the wali denies it, she may swear an oath and the judge may

tell him to arrange her marriage, or the judge may arrange her marriage.

(3/161).

He also said

(3/153): To conclude: if a woman claims that she is divorced from a specific

marriage, the judge should not let her remarry until it has been proven. If

the marriage is not specified then he may accept her word, and there are

other views on this issue. End quote.

It seems

that caution is required in this matter, especially at times of corruption

and when there have been many incidents in which marriage contracts have

turned out to have been done for women who are already married and are

lying. But the judge still has the right to make the decision in such cases.

If he thinks that her word is acceptable, he may arrange her marriage, and

if he thinks otherwise he should ask her for proof, or he does not think

that she is telling the truth, he should not conduct her marriage until the

divorce has been proven.

What is done

now is that the qaadi or registrar does not conduct the marriage of a woman

who is proven to have been married before and claims that she is divorced,

until she brings proof of the divorce. We do not know how the marriage

contract with the man mentioned was done.

Secondly:

If there is

some doubt as to whether the woman is divorced or if she is still married to

her first husband, then the sons of the person in question should strive to

ask about her and her first husband. If it is proven that she was not

divorced from her first husband, then their father must be told about that

and the couple must be separated until her ‘iddah from both is over. The

matter should be referred to the qaadi to decide on the matter, and it is

not permissible for them to be quiet if they know about that, because

marriage to a woman who is already married to someone else before she gets

divorced and completes her ‘iddah is an invalid marriage, and the one who

does that is committing zina if he knew the real situation.

But here we

should point out two things:

1 – The

children should respect their father and recognize his status and not offend

him by speaking of this matter. If we assume that they found out something

reprehensible, they should look for a suitable means of advising their

father, and if they ask someone else to intervene that is better, so to

avoid offending him and to preserve the love that exists between them.

2 – The

motive for this doubt and accusing should not be hatred of their father’s

wife because she is a foreigner or because their father married her when he

was old, or for some other reason that is not hidden from the Knower of the

unseen, may He be glorified. Let them speak good words and beware of

accusing one who is innocent; they should try to think in positive terms and

refrain from saying anything that may hurt them or their father, so long as

there is nothing that they cannot keep silent about.

The Prophet

(peace and blessings of Allaah be upon him) said: “Whoever intercedes

to prevent one of the hadd punishments of Allaah has opposed Allaah in His

command; and whoever dies owing a debt, it is not (going to be settled by)

dinars and dirhams, but rather by good and bad deeds; and whoever argues

about falsehood knowingly will remain subject to the wrath of Allaah until

he gives it up; and whoever says something about a believer that is not

true, Allaah will cause him to dwell in the mud of the juice of the people

of Hell  until he recants what he said.” Narrated by Abu Dawood (5129) from

the hadeeth of Ibn ‘Umar (may Allaah be pleased with him).  Classed as

saheeh by al-Albaani in Saheeh Abi Dawood.

May Allaah

help us and you to do that which He loves and which pleases Him.

And Allaah

knows best.