Married Without Guardian and Husband Refuses to Divorce Her
Fatwa No: 398635

Question

A divorced woman met a man and had orfi marriage with him after knowing each other for a few days only. She was on phone, and he was with two witnesses when she accepted marriage over phone without wali, because she is divorced and represents herself. She never saw the written contract or was given a mahr. The marriage was consummated.
Shortly after the marriage, the husband told her that he only married her to use her, so she asked for a divorce (she was sincerely hoping for a true marriage). He refused, saying they were never really married. She could not return mahr to him and ask for khula, because she never received it. He now block all communication from her and never divorced her (she never lived with him). She does not know where he lives or his full name to find him, as she is foreigner in his country. She realized she made a mistake, even though she made istikhara and had sincere intentions at the time of marriage.
She wants to be free of this man after 2 weeks of "marriage", so how can she get divorced when he will not speak to her and denies they were ever married? How could she know if they were validly married if she was only present by phone? She wants to be freed from him the right way according to sharia, since the man admitted using her for sex and money.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Most scholars are of the view that the consent of the guardian is a condition for the validity of the marriage, and this is the view that we adopt here in Islamweb.

It is not valid for a woman to marry herself off: there is no difference in this whether she is virgin or deflowered (already married), young or old.

Therefore, the contract that took place between you and that man is not valid. However, it is not permissible for you to marry another man except after divorce or invalidation of the marriage contract.

Ibn Qudaamah  may  Allaah  have  mercy  upon  him said:

"If a woman is married a void marriage, it is not permissible to marry her off to another man than her husband until he divorces her or that her marriage is invalidated [by the judge]. If he [her husband] refuses to divorce her, then the ruler invalidates his marriage. This is explicitly stated by Ahmed. Ash-Shaafi’i said: “There is no need for invalidating the marriage, or for divorce, because it is a marriage that is not concluded; it is like the marriage during the waiting period.” [End of quote]

Therefore, if this man does not agree to divorce you or agree to your Khul’, and you cannot take him to the judge so that he will invalidate the contract, then, in this case, we do not see any harm in acting according to the view of ash-Shaafi'i  may  Allaah  have  mercy  upon  him in considering this contract as void and that it does not require divorce or invalidation (by the judge).

For more benefit, please refer to Fataawa 370909, 338692, 83629, and 133687.

Allah knows best.

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