Question # 390: If a man came divorces his wife and realizes that many years later (by asking scholars), does have to renew the marriage contract? I am talking about a case where the couple thought that no divorce took place and as a result they had been leading their marital life as usual (including intercourse) for all those years. Also, please mention whether the scholars have differed on the answer to this question.

bismi-llahi r-raḥmani r-raḥīm,

Assalamu ‘laikum warahmatullahi wabarakatuh,

All praise and thanks are due to Allah (سبحانه و تعالى), and peace and blessings be upon His Messenger (صلى الله عليه و سلم).

Dear questioner,

First of all, we implore Allah (سبحانه و تعالى) to help us serve His cause and render our work for His sake.

Shorter Answer: If the husband initiated the divorce, then divorce has taken place, and the fact that throughout this period he believed that divorce did not occur is of no effect. The waiting period is counted from the time when divorce is issued. If the waiting period has expired, he is not permitted to take her back except with a new contract. This is, of course, if this divorce is not the third divorce. If it is the third divorce, she is forbidden for him until she marries another husband. However, if this man has had intercourse with his wife before the expiry of her waiting period, then taking her back is effective. However, we suggest that both husband and wife should discuss this issue with their local Imam with further details for correct fatwa.

Long Answer: If the husband initiated the divorce, then divorce has taken place, and the fact that throughout this period he believed that divorce did not occur is of no effect. The waiting period is counted from the time when divorce is issued. If the waiting period has expired, he is not permitted to take her back except with a new contract. This is, of course, if this divorce is not the third divorce. If it is the third divorce, she is forbidden for him until she marries another husband, as Allah (سبحانه و تعالى) says in the Qur’an: “And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him.” (Soorah al-Baqarah, 2:230)

But if this man has had intercourse with his wife before the expiry of her waiting period, then … according to the most preponderant opinion taking her back is effective.

The Musannaf of Ibn Abu Shaybah reads: “Al-Hassan al-Basri was asked about a man who said to his wife: “If you enter the house of so and so, you are divorced one divorce.”; and she entered without his knowledge; so Al-Hassan said: “If he had sexual intercourse with her during her waiting period, then his having sexual intercourse with her is considered as taking her back.’

Finally, it should be noted that the Muslim should take the initiative to ask the scholars with regard to the rulings that he needs to know before acting, as Allah (سبحانه و تعالى) says in the Qur’an: “So ask the people of the message if you do not know.” (Soorah An-Nahl, 16:43)

(The above reply is based on answer provided by Islamweb.net, a web site belonging to the Ministry of Awqaf and Islamic Affairs in the State of Qatar on the topic)

Allahu A’lam (Allah (سبحانه و تعالى) knows best) and all Perfections belong to Allah, and all mistakes belong to me alone. May Allah (سبحانه و تعالى) forgive me, Ameen.

Wassalaam