What makes a Muslim marriage void?

Answer 1

First, you need to understand the distinction between "Divorce" and "Annulment". Divorce is an act that dissolves a valid, lawful marriage. But Annulment questions the legitimacy of the marriage itself. Contingent on certain conditions that make it null and void, annulment erases it from record as though the parties were never married in the first place. Depending upon the period the couple lived together as 'husband and wife', this would affect asset distribution. Most jurisdictions recognize children from annulled marriages as legitimate heirs.

The standard requirements of marriage in Islam are: Capacity, full consent of both partners to the marriage expressing the above consent through ijab (offer) and qabul (acceptance), finally the presence of two reliable witnesses. Apart from the above, in the case of females, their guardian's consent has been considered essential for the validity of marriage according to the majority of imams and scholars.

But what the Qazis usually overlook is the fine print - WHICH IS NOT THAT FINE - and which could nullify the marriage:

Marriage is null and void under the following conditions:

1. Marriage of a Muslim woman with a non-Muslim. Such a marriage, if takes place, has no religious status. Likewise, a Muslim man cannot marry a non-Muslim who does not follow any of the revealed scriptures, or an agnostic.

2. A Muslim cannot marry a man or woman who, though coming from a Muslim background, does not recognize the fundamental beliefs or tenets of Islam, or if he or she legalizes that which has been considered as haram (forbidden) in Islam.

3. A marriage is also rendered invalid if one of the spouses after marriage renounces Islam.

4. Since consent is a condition for the validity of marriage, where there is no consent, the marriage is considered null and void. A virgin woman consents by her silence.

5. Marriage without the guardian's - parent's consent can be a cause for the annulment of marriage, unless guardian's objection is simply based on other than valid considerations: that would be the case if they object to a marriage based on race, ethnicity, family status, wealth, etc. Based on this, a secret marriage is not considered as valid.

6. Marriage of a person with impediments to marriage: as it would be the case for marrying close blood relations who are considered maharim (unmarriageable relatives) or milk relations as stated in the verse (Qur'an 4: 23).

7. Marriage with the intention of divorce or for other than the valid purpose of marriage such as marriage for legal papers, etc.

8. Temporary or conditional marriage is not valid.

9. Marriage of a woman during her 'iddah or waiting period following divorce or death of her husband.

10. Asking a married woman to divorce her husband or vice versa in order to marry her or him.

11. Also, the majority of Muslim Scholars hold the view that a woman has the right to add such reasonable conditions to the marriage contract and it'll be binding upon the man. Like all other valid contracts, violation of a sound condition may nullify the marriage contract. If they place conditions in marriage, which are contrary with the fundamental objectives of marriage such as insisting on no consummation, or planning not to have children. E.g., prohibition to visit parents, guardians, relatives in maharim.

12. Since marriage is a sacred contract between man and woman, there is no room in Islam for the so-called same-sex marriage.

VALIDITY/INVALIDITY of marriage FOLLOWING an illicit relationship

"The adulterer - fornicator marries not but an adulteress - fornicatress or a Mushrikah; and the adulteress -fornicatress, none marries her except an adulterer - fornicater or a Mushrik [and that means that the man who agrees to marry (have a sexual relation with) a Mushrikah (female polytheist, pagan or idolatress) or a prostitute, then surely, he is either an adulterer - fornicator, or a Mushrik (polytheist, pagan or idolater). And the woman who agrees to marry (have a sexual relation with) a Mushrik (polytheist, pagan or idolater) or an adulterer - fornicator, then she is either a prostitute or a Mushrikah (female polytheist, pagan, or idolatress)]. Such a thing is forbidden to the believers (of Islamic Monotheism)". [al-Noor 24:3].

It is not permissible for a Muslim man to marry a woman who is a zaaniyah and that a Muslim woman cannot marry a man who is a zaani unless they both declare openly and sincerely repent and it is established that the woman is not pregnant by waiting for one menstrual cycle before getting married.

If zina (adultery/fornication) took place but they did not repent, then the marriage is void. But if zina did take place between them but they admitted it, regretted it and repented, then their marriage is valid and there is no need to worry about it.

If zina did not take place, rather the relationship was just touching and no penetration took place, then they cannot be called zaanis, even if ejaculation occurred. Such acts constituted major sins, but they cannot be labeled as zina unless there was penetration.

Based on that:

1. If no zina took place, or it took place but they repented, then there is no need to do anything; rather they remain married but they should strive to do a lot of righteous deeds.

2. If zina took place between them and she did not have a period before getting married, then she got married before it was proven that she was not pregnant, this means that the marriage should be annulled.

3. If zina took place between them and they did not repent, then they have to annul the marriage and wait one menstrual period to establish that she is not pregnant. He may marry her again, with a new proposal and a new contract and mahr.

Shaykh Muhammad ibn Ibraaheem (may Allah have mercy on him) said: It is not permissible to marry a zaaniyah until she repents. If a man wants to marry her, he must wait for one menstrual cycle to establish that she is not pregnant before doing the marriage contract with her. If it turns out that she is pregnant, it is not permissible for him to do the marriage contract with her until after she gives birth. Al-Fataawa al-Jaami'ah li'l-Mar'ah al-Muslimah, 2/584. Something similar was stated by the scholars of the Standing Committee, al-Fataawa, 18/383, 384.

As for what the Law of the Non-Islamic Land may consider elements disqualifying marriage are: Age of consent, mental capacity, whether either party is serving 7 yrs. or life imprisonment, the period of time either spouse was absconding, whether the marriage occurred involuntarily or through deception of material fact, fraud, bigamy, polyandry and other such reasonable statutory considerations that vary throughout the world.

But, the bottom line is, the cause of action for annulment is usually brought on by the one aggrieved in the marital relationship, and not a third person. And if they choose to continue "living in sin" sheltered behind a dubious Nikka'nama Certificate despite a truckload of Fatwas and Sharia Laws, there is not a thing anyone can do to stop them except render counsel and pray they make effort to validate their Nikah!

And Allah knows best …. Jazak'Allah!