Is an 'urfi marriage, contracted with a guardian and witnesses but without the father's knowledge, invalid in Islamic law? Do the three divorces (talaqat) take effect therein? Is it permissible for the couple to return to each other with a new contract and the guardian's consent?
The majority of scholars hold the view that a woman's marriage without a guardian (wali) is invalid. Imam Abu Hanifa, however, disagreed, permitting the marriage of a sane and mature woman without a wali. Based on the view of the majority, if a marriage takes place without a wali, its ruling is dissolution (), but according to the Hanafis, this dissolution is considered a divorce (). Consequently, the previous 'urfi (customary) marriage is considered a major irrevocable divorce (baynunah kubra), and the woman is not permissible for him unless she marries another man. If she wishes to return to him after her divorce from the second husband, this cannot happen except through a contract approved by her father, because dissenting from the opinion of the majority is not permissible unless the dissenting (school of thought) is stronger.
Summary from Ftawy's records · added here
Reviewed by El Fatwa's sharia committee.
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