Marriage Fiqh: Shari`ah on way of divorcing a wife and making her lawful again to the ex-husband


What is the Shar`y (Islamically lawful) Tahlil (a marriage contracted for the sole purpose of legalizing remarriage between an irrevocably divorced couple)? For instance, Zayd divorces Safiyyah, and wants to have her married to another man in order to remarry her. Safiyyah gets married to `Amr who suffers from premature ejaculation. A few days after getting married to Safiyyah,`Amr divorces her. Now, she wants to return to her ex-husband, i.e. Zayd, is this permissible? Please clarify the matter to me, and mention the Shar`y way of divorce. If Zayd wants to divorce his wife, what should he do?

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Fatwa no. 10726

Firstly
, if a man marries an irrevocably divorced woman for the sole purpose of making her lawful for her ex-husband to remarry, or if he intends to do so, or if they agree upon it, the contract is Batil (null and void) and the marriage is invalid.

Secondly, Imam Ahmad and Al-Tirmidhy reported on the authority of Abu Hurayrah (may Allah be pleased with him) that:
The Prophet (peace be upon him) said,
"Curse be upon the one who marries a divorced woman with the intention of making her lawful for her ex-husband and the one for whom she is made lawful (ex-husband). "

Al-Tirmidhy said that he asked Muhammad ibn Isma`il about this Hadith and he said it is Hadith Hasan (a Hadith whose chain of narration contains a narrator with weak exactitude, but is free from eccentricity or blemish).

Thirdly, Imam Ahmad and Al-Tirmidhy also reported on the authority of `Abdullah ibn Mas`ud (may Allah be pleased with him) that:

The Messenger of Allah (peace be upon him) cursed both Al-Muhallil (a man who temporarily marries a woman divorced thrice to make her lawful to her former husband) and the one (the first husband) for whom the unlawful act of taking back his wife after divorcing her thrice is rendered lawful (through this marriage).  

Al-Tirmidhy said the Hadith is Hasan and Sahih (authentic).

Fourthly, if a man marries a woman, after her being divorced and after the end of her `Iddah (woman's prescribed waiting period after divorce) for the sake of desiring her, and the second husband had intercourse with her, and there was no condition or intention of Tahlil then the second husband divorces her, she will be permitted to remarry her first husband.

`Aishah (may Allah be pleased with her) narrated that:'

The Messenger of Allah (peace be upon him) was asked about a man who divorces his wife three times, and she marries another who entered upon her, but divorces her before having intercourse with her, whether she will be lawful for the former husband. She said: The Prophet (peace be upon him) replied: She is not lawful for the first (husband) until she tastes the honey of the other husband and he tastes her honey (consummate their marriage).

(Reported by Al-Bukhari and Muslim and Ahl-ul-Sunan (authors of Hadith compilations classified by jurisprudential themes)). The wording is for Abu Dawud.

May Allah grant us success! May peace and blessings be upon our Prophet, his family and Companions.

The Permanent Committee for Scholarly Research and Ifta'
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