NIKAH WHILE BEING LEGALLY MARRIED

As Salaamu Alaikum,

QUESTION:

Can a woman who is separated from her husband about 4 years…not legally divorced yet but in the process of finalizing the divorce gets Nikah to another person?

Wa Alaikum As Salaam,

ANSWER:

  1. If the woman was separated through a formal Islamic separation like an annulment or dissolution of the marriage (Faskh) done by some Islamic authority, then she can marry another person, even though she may not be legally divorced in the country.
  2. If she was separated on account of a divorce (Talaq) given to her by her husband, (whether it was given verbally or in writing), then she can marry another person even though she may not have legal documents for the divorce.
  3. If she was separated on account of a Khul’a, where she returned the Mahr (dowry) and was released from the marriage by the husband, then she can marry another person.

In the above  three situations, she will be allowed to marry another person since her waiting period of 3 menses (which is the waiting period of divorce) has already ended within this time of her separation of about 4 years (from her husband).

  1. If none of the above occurred, and she became separated from the husband just because they did not want to live together, and this continued for the time of about 4 years, then she is still considered to be married to her husband according to the laws of the sacred Shariah. Therefore, in this case, she will not be allowed to marry another person until a formal separation takes place or she is officially divorced by her husband. (Kitabul Fatawa Vol. 5 pages. 188,189 Zam Zam Publishers Karachi 2008; Kitabul An Nawazil Vol. 9 page. 189 Darul Ishaat Karachi 2016)

And Allah Knows best

Mufti Waseem Khan

1/12/2021