Very Doubtful Marriage
10-9-2003 | IslamWeb
Question:
Is my Nikah valid? I have a few questions regarding Nikah, which are very troubling me. I had a Nikah performed with a woman who had been married once before. Her prior marriage lasted only around 3 months. She claimed that she did not have sexual intercourse with her former husband. Our Nikah was performed only one week after her husband gave her Islamic form of divorce (pronouncing Talaq). I read that if a woman does not consummate her marriage, there is no Iddah period required before she remarries. I took her word that she did not consummate, but should this be verified by asking the former husband? If they did, then the Nikah isn't valid as it would have been performed within the three months. Secondly, her divorce was pronounced Islamically (Talaq), but as of now her legal marriage has not been dissolved, meaning she has not gotten a divorce legally through the court system in the state she was married. With this being the case, is my Nikah to her legitimate? I am unable to legally file my marriage to her because as of now, she is still legally married to another man, though not Islamically married to him. Is the Nikah valid only after she gets a legal divorce through the court system? Finally, this Nikah was performed without the knowledge of either of our families. As of now, we have both told our mothers, but nobody else in our family. I read somewhere that one of the conditions of a Nikah is that it cannot be kept secret, and should be announced publicly, or else it becomes invalid. Is this correct? If so, how long can the Nikah be a "secret" before it becomes invalid? As of now, the families have not been told because they would not approve for various reasons. However, she and I both fully consented without any force on either end.
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 
is His slave and Messenger.
There is no ‘Iddah (waiting period of a divorced woman) for the woman who is divorced before she had sexual intercourse with her husband. Allah Says (what means): {When you marry believing women, and then divorce them before you have sexual intercourse with them, no 'Iddah [divorce prescribed period] have you to count in respect of them.} [Quran 33:49]
However, the Hanafi and Hanbali Schools of jurisprudence are of the opinion that if there was any seclusion (when the husband has actually stayed in seclusion with his wife), then the rulings of having sex become effective even if they had not had sexual intercourse. Therefore, she has to complete her ‘Iddah, and get her complete Mahr (bridal money). This was the judgement of ‘Umar 
and it is the opinion of the four rightly guided Caliphs. This was also the old opinion of Imam Ash-Shaafi'i. Islamweb issues its Fatwa according to this opinion. On the other hand, Ibn ‘Abbaas Imam Ash-Shaafi'i in his new opinion, the Maaliki School, and a group of Muslim scholars believe that the fact that the bridegroom and the groom stayed in seclusion does not change the ruling as long as they did not indulge in practical sex. They derived this understanding from the above-mentioned verse. Therefore, if the seclusion had taken place with her former husband even if he did not have sex with her, and if she had got married before completing her ‘Iddah, then the second marriage is invalid. The waiting period is three menstrual periods for the one who still menstruates. If she does not menstruate, then her ‘Iddah is only three months. Allah Says (what means):
• {And divorced women shall wait (as regards their marriage) for three menstrual periods.} [Quran 2:228]
• {And those who no longer expect menstruation among your women - if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah - He will make for him of his matter ease.} [Quran 65:4]
As for the second question, if her husband had actually divorced her, then the divorce is effective. Legalizing it from the concerned authorities is not compulsory in the Sharee’ah.
As for your third question, know that any marriage contract that took place without the consent of the guardian of the woman or without witnesses, is null and invalid. The Prophet said: “No marriage is valid without the Wali (guardian of the woman).” ‘Umar passed a judgment in a case that the marriage that was not completed in the presence of two witnesses, that it is invalid. [Maalik] Therefore, informing each one's mother does not change the rulings of the Sharee’ah. Finally, it is obligatory upon both of you to separate immediately from each other. If this woman has been in seclusion with her previous husband, then she must observe her complete ‘Iddah as mentioned before. Moreover, if you had sex with her, then she should also observe another menstruating period to confirm being free from pregnancy. After the end of this course of ‘Iddah, you may marry her fulfilling the conditions of a valid marriage. In addition, you both must repent towards Allah for what you have committed. Know that you may be excused for your ignorance of the accurate rulings of the Sharee’ah but you will be held responsible for not making efforts to learn such rulings.
Allah knows best.