Marriage without Wali is defective and must be annulled
26-4-2015 | IslamWeb
Question:
Salaamu alaikum, Is it lawful for a woman, who was born Muslim and does not have a wali and married without her family's permission, to ask for talaq if she does not know her husband well and her family is asking her to take divorce. The marriage was arranged by smn else and may have been a rash decision. Also if she has no guarantee at the beginning of the marriage that he will provide for her properly or live with her as he should, then can she leave him? Then if she waits for 3 months and he does not come to find her, can she go to sharii court to get talaq. Also, does she have to tell her family about this marriage (which she now feels is like zina or was a sin), and she is ashamed to reveal it to her family? Thank you.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad, sallallaahu ‘alayhi wa sallam, is His Slave and Messenger.
If this marriage was conducted without a Wali (bride's guardian), then the marriage contract is Faasid (defective) because one of the conditions for the validity of the marriage contract is the presence and consent of the Wali. If the Muslim woman has no Wali, the Muslim ruler or his representative acts as her Wali in the marriage contract as previously underlined in Fatwa 83338.
The Faasid marriage must be ended with the husband pronouncing divorce or annulment issued by the Muslim ruler (judge). If such a marriage is ended and the ʻIddah (post-divorce waiting period) expires, the woman is entitled to marry another man. Please refer to Fataawa 195979 and 92478.
The woman is not obligated to inform her family of this Faasid marriage. It is not considered Zina; therefore, if it resulted in a child, it is attributed to the father due to the couple's mistaken belief that their contract was lawful.
Finally, the wife does not have to wait for the husband to come back in order to ask for divorce; rather she may ask him to divorce her from wherever he is currently. If he agreed to divorce her, this is the desired goal; otherwise, she should take her case to a legitimate Islamic court because this marriage should be legally annulled because it is defective.
Allaah Knows best.