Marriage With the Intention to Divorce
Anonymous says‚Äú We Sunnis oftentimes criticize the Shias for their belief in Mutah, and we refer to it as immoral. But one Shia girl responded to this by pointing out that the Sunnis believe in the permissibility of “marriage with the intention to divorce.” In other words, a man can marry a woman with the secret intention that he will divorce her after some time. So isn’t this like Mutah, or even worse than Mutah? At least in Mutah the woman knows and agrees to a temporary arrangement, but in this Sunni version, the woman is in the dark and one day the man will come home and tell her that he divorces her after he has enjoyed her. Therefore, my question is: do we Sunnis actually believe in the permissibility of marriage with the intention to divorce?
The Shia girl showed me a fatwa written by Shaykh Bin Baz, and she also pointed out that Shaykh Bin Baz is the biggest Salafi scholar in recent history. She also said that the Hanafis and Shafi’is hold the same position as well. And she also said that allowing this sort of marriage was “one of the two opinions” held by the Hanbali Ibn Taymiyyah. In other words, according to her, the Salafis, the Hanafis, and the Shafi’is all permit this sort of marriage, as well as Ibn Taymiyyah whom we call Shaykh al-Islam.
If this is true, then aren’t we Sunnis hypocrites for accusing the Shias of being immoral because they practice Mutah, but we allow the exact same thing under the guise of marriage with the intention to divorce?‚ÄĚ
In the Name of Allah, the Most Gracious, the Most Merciful.
I am not a scholar, but I did have a face-to-face discussion on this matter with Shaykh Suhail Hasan, the son of the late Shaykh Abdul Ghaffar Hasan. For those who don’t know who that is, then it should be stated that Shaykh Abdul Ghaffar and Shaykh Bin Baz were very close friends and advisers to each other. I have also discussed the matter with other scholars and students of knowledge, so I will relate to you what I have learned.
The dominant opinion amongst the scholars of Ahl as-Sunnah is that marriage with the intention to divorce is valid but impermissible. At first, this sounds like a contradiction: how can something valid be impermissible? Yes, at first, these two words (validity and permissibility) seem to be synonymous, but this is not the case in the Islamic lexicon. We say that the Nikah (marriage) contract would be valid, and by this we mean that it is a legally binding document as per the laws of the land. However, it is an impermissible action in the eyes of Allah.
This is like all other contractual agreements under the Islamic Shari’ah. A marriage contract requires two witnesses. Similarly, a business contract involving loans also requires two witnesses. Allah Almighty says in the Quran:
“O you who believe! When you contract a debt for a fixed term, record it in writing…and call to witness, from among your men, two witnesses.”
Let us imagine that a debtor enters into a contractual agreement with a lender. The two men prepare a written document in which the debtor promises to pay back two hundred dirhams to the lender. If the debtor signs the document but secretly harbors the intention to default on the loan, then we say that the contractual document itself is still valid and binding, but we say that the action of the debtor was impermissible. If six months down the line the debtor confesses to his friend that he never planned to pay back the money, and then this friend informs the authorities about this, then would the state declare the contract null and void? Would the state say that the contract is invalid and that the debtor does not owe the lender any money? No government would operate in this manner. The state would back the validity of the contract and would demand of the debtor that he should change his intention and pay back the loan. In other words, the contract is valid in the eyes of the state, but the action done by the debtor is impermissible and sinful in the eyes of Allah. This is the difference between validity and permissibility.
The same is the case with a man who wishes to marry a woman with the secret intention to divorce her. The Nikah contract would still be valid and legally binding on both parties. In the eyes of the government, man and wife are married. However, the act (i.e. entering a marriage with the intention of divorce) is impermissible in the eyes of Allah, and the scholars have said that it is sinful. If the man confesses to his friend that he married the woman with the intention of divorcing her, and if that friend informs the authorities of that, then the state would insist on the validity of the Nikah contract. The man would be urged to change his intention and to fulfill his vows.
Imagine if the state would suddenly have declared that the Nikah contract was now invalidated. This would certainly make the situation very beneficial to womanizers, who could simply marry women, enjoy them sexually for a few days, and then confess that they had married with the intention of divorce; suddenly, such men would no longer be married and they would be absolved of any obligations to the women at all!
Indeed, invalidating a Nikah contract based on someone’s secret intention poses serious problems. How is it possible to look into peoples’ hearts and judge what their intentions are? For example, a married woman who is having an affair can simply tell the judge that her husband married her with the intention to divorce and thus her Nikah contract is invalid and she should be allowed to marry the other man. How could the judge verify the husband’s intention? There is no way to look inside the man’s heart and reveal his true feelings and intentions. Or what of an angry mother-in-law who wishes to invalidate her son’s marriage by claiming that her son married with the intent to divorce? Or how about an evil-doer who wishes that the punishment of Zinnah be levied on another man by declaring his Nikah contract invalid on the grounds of his alleged secret intention? How could such claims be verified or negated by the state? We find that this is opening up pandora’s box!
This is why the scholars of Ahl as-Sunnah have stated that the Nikah contract is valid in the eyes of the state, but the action is impermissible in the eyes of Allah Almighty. Only Allah the Most Glorious can look into the hearts of people and judge by intention. In this world, men will be judged by the law based on their outward actions, whereas in the next life men will be judged by their inner feelings and intentions. It is quite impossible for human beings to make rulings on what people intend or feel. For example, if a man intends to donate money to a certain charity but he does not end up doing it for some reason, then the government will not be able to reward him for that; he would not be given any tax deduction for that. On the other hand, such a man would get reward from Allah Almighty for his noble intention. This is the difference between limitations of man and the greatness of Allah Almighty.
The scholars are split into two groups over this issue. Some of them say as I said above, i.e. valid but impermissible. But others hold an even stricter opinion, and they say that marriage with the intention of divorce is both invalid and impermissible. It seems that this difference in opinion existed for a very long time, and I base this on the following Hadith:
Sahih Bukhari, Volume 9, Book 86, Number 91:
…Ali said, “Allah’s Apostle forbade the Mutah marriage on the Day of the Battle of Khaybar and he forbade the eating of donkey’s meat.” Some people said, “If one, by a tricky way, marries temporarily, his marriage is illegal.” Others said, “The marriage is valid but its condition is illegal.”
There are therefore two valid opinions on the matter, and neither one of these two views support the permissibility of marriage with the intention of divorce.
Rulings of the Scholars
Shaykh Muhammad Rasheed Rida said:
The fact that the scholars of the earlier and later generations emphatically forbade mut‚Äôah (temporary marriage) implies that marriage with the intention of divorce is haraam, even though the fuqaha‚Äô said that a marriage contract is valid if the husband intends it to be temporary but did not state that as a condition in the marriage contract; but his concealing that is regarded as a betrayal and deceit, and this contract deserves to be annulled more than one in which he stipulated the condition that it be temporary with the agreement of the husband, the wife and the wife‚Äôs guardian. This (marriage with the intent to divorce) leads to many evil consequences as it is abusing this great bond which is the greatest of human relationships, and going along with one‚Äôs whims and desires. When this condition is not stated clearly, that is cheating and betrayal which leads to other bad consequences such as enmity, hatred and loss of trust even of sincere people who want to get married in the real sense, which means protecting the chastity of both partners and cooperating in establishing a righteous home…
(Fiqh al-Sunnah by al-Sayyid al-Saabiq, 2/39)
Shaykh Ibn Uthaymeen, one of the three great Shaykhs, said:
With regard to my opinion on this matter, I say that this marriage contract is a valid contract, but it involves deceit and betrayal, so it may become haraam because of that.
It is deceit and betrayal because the wife and her guardian, if they knew the intention of this husband, and that his intention is to enjoy intimacy with her and then divorce her, they would not adept this marriage. So in that sense he is deceiving and betraying them.
If he tells them that he wants her to stay with him for the duration of his visit to that country, and they agree to that, then this marriage is mut‚Äôah (temporary marriage).
Hence I think that it is haraam, but if anyone goes ahead and does it, then the marriage contract is valid, but it involves sin.
(Liqa‚Äô al-Baab al-Maftooh, Question 1391)
And the Shaykh said:
Marriage with the intention to divorce
Answered by: Shaykh Muhammad ibn Saalih al-Uthaymeen
A man wished to travel abroad because he is a researcher and he desired to maintain his chastity by marrying there for a specified duration of time, then afterwards divorce this woman without informing her that he will soon do so. So what is the ruling regarding this action?
This is marriage with the intent to divorce and it is not free from one of two situations; either it will be stipulated in the contract that he will marry her for the duration of a month or a year or until his studies are finished, and this is the marriage of Mut’ah and it is Haraam (Forbidden). Or either he will make intentions to do this without it being stipulated. And that which is well known from the Mathhab of (those who follow) Imaam Ahmad is that it is Haraam (Forbidden) and that the marriage contract is null and void. That is because they say the intention is just like the stipulation and that is based upon the statement of the Prophet (saw) :
“Indeed actions are based upon intentions and everyone will have that which he intended…” (Bukharee and Muslim)
…it is not Mut’ah because the definition of Mut’ah is not applicable to this type of marriage but it is Muharram (forbidden) from the angle that it is deception upon the wife and her family and the Prophet (saw) has made Ghish (Deception) and Khida’a (betrayal) Haraam, and because if the woman was aware of the fact that this man didn’t want to marry her except for this particular duration she would not marry him. And likewise, her family wouldn’t marry her to him. Just like he wouldn’t be pleased with someone marrying his daughter and his intention is to divorce her once his need (for her) has been fulfilled. So how is it that he is pleased for himself to deal with someone else with the likes of that which he would not be pleased with? This opposes Eemaan! Based upon the statement of the Prophet (saw):
“None of you truly believe until you love for your brother what you love for yourself” (from the hadeeth of Anas ibn Maalik found in Bukharee and Muslim)
(Fatawah for the Woman, p.114)
Shaykh Faisal Mawlawi, Deputy Chairman of the European Council for Fatwa and Research, stated:
Marriage with the intention of divorce is not permissible. However, if one has this intention at the time of contracting the marriage then the marriage itself is valid but the intention is invalid and corrupt and one should renounce it. I find no reason for this intention as the Shari`ah gives the husband the right to divorce the wife if there is a valid reason for terminating the marriage whether he had this intention to divorce from the very beginning or not.
There is no need for or benefit in this intention and I advise any Muslim living in the West to abide by the Shari`ah rulings and do not have the intention of divorce at all as long as he can end the marriage if there is a valid reason for doing so.
FatwaIslam echoes this view:
A person is going abroad to study and he wants to protect his chastity there by getting married for a specific period of time. Afterwards, he will divorce his wife although he does not inform her that he is planning on divorcing her after a specific time period. What is the ruling concerning such behaviour?
Marriage with the intention of divorce must fall into one of two cases.
First, it is explicitly stipulated in the marriage that the marriage is for a month, a year or until he finishes his studies and so forth. This is known as Mut’ah. This is forbidden.
The second case is where the person has that as his intention [in his heart] but it is not put as a stipulation in the contract. The widespread opinion among the Hanbalis is that that is forbidden and that the contract is void. They say that what is intended is equivalent to what is actually stipulated, since the Prophet (sallallaahu ‚Äėalaihi-wasallam) said, “Indeed actions are based upon intentions and for everyone is what he intended.”
Shaykh al-Islam Ibn Taymiyyah
It is incorrect to state that Shaykh al-Islam permitted marriage with the intention to divorce. On the contrary, he forbade it. The Shia girl you know said it was “one of the two views” of Ibn Taymiyyah. This is a typical deception of the Shia propagandists, and they use this tactic frequently. For example, we read:
Al-Islam.org says‚Äú In this place [Ghadir Khumm], the following verse was revealed:
‚ÄúO Apostle! Deliver what has been sent down to you from your Lord; and if you don‚Äôt do it, you have not delivered His message (at all); and Allah will protect you from the people ‚Ä¶‚ÄĚ (Quran 5:67).
Some of Sunni references confirming that the revelation of the above verse of Quran was right before the speech of Prophet in Ghadir Khum:
(1) Tafsir al-Kabir, by Fakhr al-Razi, v12, pp 49-50source: http://www.al-islam.org/ghadir/incident.htm‚ÄĚ
And yet, if we open up this book by Fakhr ar-Razi, then we find that he first lists nine opinions on the matter. He provides nine different possibilities of when this verse was revealed. After first stating the various opinions, he then gives his final verdict on the matter. The opinion that it was revealed about Ali ibn Abi Talib was actually listed by Fakhr ar-Razi as the weakest of the nine opinions, and he discredited it.
What I mean to say here is that the methodology of the classical scholars was that they would first list the various possible opinions, and then they would state their final verdict after having done that. Just because a scholar lists something as a possible opinion, it does not mean that he agrees with it. In fact, this is a very beautiful methodology used by the scholars: it is as if they are thinking aloud. They will narrate to the reader the various views, and then they will explain how they themselves graded each of them and came up with their final verdict on the matter. As for Shaykh al-Islam Ibn Taymiyyah, then he stated that there were two possibilities with regards to marriage with the intention to divorce, i.e. permissible or impermissible. He then established his own final opinion on the matter which was that such marriages were forbidden. Shaykh Ibn Uthaymeen said:
And Shaykh Saalih ibn Muhammad Al Luhaydaan who is the president of the high judiciary committee of major scholars in Riyadh (Saudi Arabia) mentioned in his introduction to the book: “Marriage with the intention to divorce,” that the final opinion of Shaykhul Islaam ibn Taymeeyah supports that fact that this type of marriage is prohibited.
Shaykh Ibn Uthaymeen said:
“The widespread opinion among the Hanbalis is that that is forbidden and that the contract is void.”
We asked Shaykh Muhammad al-`Amwaawi, a Maliki scholar, and he stated that the relied upon position of the Malikis is that such a marriage is valid but impermissible, which is the same view that I have outlined above.
Imam an-Nawawi quoted Imam Malik as well as Imam al-Awzaa’ee, another Maliki scholar, declaring that although the Nikah contract was valid, the act itself was detestable and hated.
Mufti Ebrahim Desai said:
If a temporary marriage is conducted without any statement of time limit, the marriage will be (considered by the law) a permanent one. However, the parties will have to change their intention and be committed to a permanent marriage. They cannot deliberately enter into a marriage with the intention of being temporary partners. If they do so, they will be abusing the sacred institution of Nikah against the purpose it was established for.
Shaykh Bin Baz
There is no doubt that Shaykh Bin Baz was one of the most eminent scholars of the Ahl as-Sunnah. And yet that does not mean that he (or any other scholar) was infallible. With regards to the Shaykh’s opinion about marriage with intention to divorce, then it is known that his opinion on the matter is considered Shaadh (i.e. an anomaly). An opinion that is considered Shaadh is worse than a weak opinion but rather it is lower than that and considered invalid. A Shaadh opinion is not within the realms of valid ikhtilaf; therefore, it is not a permissible opinion to take by anyone. We love and respect the Ulema as-Sunnah, but we should not be shy to disassociate ourselves from opinions that go against the Quran and Sunnah. One Shaadh opinion cannot possibly overcome the majority opinion of the rest of the Ulema. So we say that Shaykh Bin Baz made a sincere mistake and there is no blame in that.
It is important to remember that the Sunnis do not have popes or ayatollahs with the ability to declare Halal and Haram; that is something we believe only Allah Almighty can do. If someone contradicts Allah’s Laws, we are free to reject those opinions, and in fact, we must do that. At the same time, we should not attack Shaykh Bin Baz, because we know that all great scholars in the past had mistakes and nobody was perfect. Indeed, it is a truism that what defines a good scholar is that out of one hundred rulings, ninety-nine of them will be good and only one of them will be Shaadh. This differs from the poor “scholar” who out of one hundred rulings will have ninety-nine or a hundred Shaadh opinions. We say that Shaykh Bin Baz was of the former group; just because he had a Shaadh opinion on this issue, this does not mean that we can condemn him for that, and if we did that, then we would have to condemn all the great scholars of the past, since so many of them had one or two Shaadh opinions. I truly believe that Allah Almighty showing us the imperfection of even the greatest scholars is His Way of reminding us of His Own Perfection and Supreme Nature.
Yes, we admit that Shaykh Bin Baz did hold this view, but we believe he made a sincere mistake and as such, it is not a proof against Ahl as-Sunnah. The truth is that the Shaykh did not know what the ramifications of his ruling would be, and had he known it, then it is likely that he would not have passed this fatwa. Shaykh Bin Baz only intended his fatwa to be used by a man who was traveling to a far off land for studies for a few years. Bin Baz thought that a man could marry one woman whilst he was there in that land, and after he was done with his studies and left that country, then he could divorce her. Had the Shaykh known that people would abuse his ruling by traveling to various countries for the sole intent of marrying women and doing this multiple times for sexual pleasure, then he would have never passed such a fatwa. This view was alluded to by Shaykh Uthaymeen:
Because I have heard that some of the people have taken this (i.e. fatwa of Shaykh Bin Baz) as a means to another affair which no one (from the people of knowledge [a reference to Shaykh Bin Baz]) has supported and that is they travel to different countries for marriage only! They go to these countries for the sake of marriage and they remain there masha Allaah with this woman whom he has made intentions, in his marriage to her, to be appointed, then return to his homeland. This is also a major prohibition and closing the door in this issue is what is more appropriate and that is because of what it entails of Ghish (deception) and Khida’a (deceit) and Taghreer (seduction with vain hopes) and because it opens the likes of these doors. And because the people are ignorant and most them, their Hawah (desires) won’t prevent them from transgressing the prohibitions of Allaah. And Allaah knows best.
Shaykh Saalih ibn Muhammad al-Luhaydaan, president of the high judiciary committee of major scholars in Riyadh, told Shaykh Bin Baz that his opinion on the matter was incorrect, as we read in the book “Marriage With Intention to Divorce”:
The fatawas given in support of the permissibility of this type of marriage are not based upon any proof (Daleel), and they have nothing (in them) that would remove this type of marriage from its characteristic of being Haram…And I pointed to the fact, on numerous occasions, of that which occurred between me and His eminence our shaykh ‚ÄėAbdul ‚ÄėAziz ibn ‚ÄėAbdullaah ibn Baaz and His Eminence ‚ÄėAbdur Razzaq Al ‚ÄėAfifi in reference to this issue and he wasn’t successful in his response nor in his justification may Allaah pardon him and Have mercy upon him…
Imam Ahmad explicitly forbade one to look for Rukhas (i.e. exemptions to make life easy) by seeking the Shaadh opinions from amongst the scholars. Sulayman al-Taimi said: “If you were to take allowances of every scholar, all the evil will be gathered in you.” In other words, every scholar has something wrong, and this is the result of being a human being. But what would be evil would be to compile all the wrong points from the various scholars and then follow them, and this is the way of Ahl al-Bidah. So you will find that Ahl al-Bidah will seek to collect all the Shaadh opinions in order to find Rukhas, thereby taking the opinion of one scholar who said that music is Halal, and another opinion of a different scholar who permit shaking hands with women, and another opinion of a scholar who said that Shi’ism is an acceptable fifth Madhab, and another opinion from a scholar who declared that we need to pray three times a day only instead of five. And by doing this, a person would have destroyed his religion.
What the Shias do is look for the Shaadh opinions from amongst the thousands upon thousands of Sunni scholars, and then they say “see, you believe in that too!” This is not, however, a proper way to look at things, especially since Ahl as-Sunnah places such a large importance on the concept of Ijma (consensus). No scholar, no matter how big he is, can compete with the Ijma once it has been established. Likewise, a Shaadh opinion–a viewpoint that has been rejected as invalid by the consensus–cannot be taken as valid, even if it is Shaykh Bin Baz himself who held that view.
The Salafis take the view of either Shaykh Ibn Uthaymeen (valid but impermissible) or the view of the Hanbalis (both invalid and impermissible). After Shaykh Bin Baz passed his ruling on the matter, there were many Salafi scholars who criticized this opinion, as did Shaykh Saalih ibn Muhammad al-Luhaydaan above. In fact, when I opened up the fatwa book in which Shaykh Bin Baz’s ruling on the matter was stated, I turned to the very next page to find that Shaykh Ibn Uthaymeen had over-ruled Shaykh Bin Baz’s opinion. And it is this opinion, that of Ibn Uthaymeen, that has become the dominant opinion amongst the Salafis, and to state otherwise is completely dishonest.
Shaykh Saalih Ibn Fowzaan al-Fowzaan endorsed a book which rejected the permissibility of such marriages:
I have examined the book called “Marriage with the intention to divorce” and its essentials and its principals and its impact by the Noble shaykh the Doctor Ahmad Ibn Musa As Sihli. And I found it to be very beneficial in its subject matter and it will treat this dangerous problem that has emerged between the youth and the people of Ahwah (desires). And I hope that Allaah will benefit with this book and that it will be the reason for those who have involved themselves in problems to return to guidance. And since the emergence of this problem I used to warn against falling into it and I see, marriage with the intent to divorce, to be Haraam and with Allaah is the Tawfeeq and may the Salat of Allaah and His Salaam be upon our Prophet Muhammad and his family and his companions.
As a strong proof that the Salafis do not hold this type of marriage to be permissible, we remind the reader that the Institute of Islamic Religious Law (based in Mecca) banned marriage with the intent to divorce, because it involves “deception and fraud.” We see that the Institute did not take the Shaadh opinion of Shaykh Bin Baz, but rather took the stance of Shaykh Ibn Uthaymeen. Is there any doubt then on what the Salafi opinion is on the matter?
We conclude with the words of Shaykh Haitham Hamdan, professor at the American Islamic University:
“The majority of contemporary scholars from Ahl us-Sunnah are of the opinion that marriage with the intention of divorce is not permissible.”
The Muslim World League (MWL), which enjoys a category A observer status in the United Nations, was founded by members from over twenty-two Sunni countries. The MWL banned marriages with the intent to divorce. So how is it then that the Shias can even claim that we Sunnis accept this sort of marriage? No, we vehemently reject it! Marriage with the intention to divorce is immoral, and we of the Ahl as-Sunnah reject it like we reject Mutah. The man who marries a woman with the intention of divorce has committed a grave sin, of deceit and of treachery. This act is Haram and sinful in the eyes of Allah.
I hope that I have shed some light on the matter and that I have not erred in any way. I tried with the best of my abilities to transmit to you what I heard from Shaykh Suhail Hasan and others from amongst the Ahl al-`Ilm.
And Allah is the Source of all Strength.
Article Written By: Ibn al-Hashimi, www.ahlelbayt.com