Tuesday, October 06, 2009

Annulment of Islamic Marriages

According to Islamic jurisprudence, a man can divorce his wife at any time, in any place, and for any or no reason. However, a woman is given the right to request the religious judge (qadi) to annul (faskh) her marriage if she can prove that the marriage exhibits certain defects that make achieving the purposes of the marriage impossible.

A husband’s impotence is ground for termination of marriage, provided that the condition lasts more than one year according to the Hanafi School of thought in Sunni Islam. In some cases, if the husband contracts leprosy, the wife may seek separation. At the spouse’s request, the religious judge may issue an order of annulment if the other party contracts serious communicable illness, whereby it becomes barrier to the enjoyment of marriage.

Religious unsuitability is another barrier. According to Islamic Shari’a (law), a Muslim woman is not allowed to be married to a non-Muslim (Jewish or Christian or Hindu). A marriage of Muslim woman to non-Muslim man is subject to annulment by the religious court. Should a non-Muslim married woman convert to Islam; the religious judge may force the couple to separate and the marriage to be terminated. The non-Muslim husband is obligated to pay the necessary mahr and nafaqa (spousal support).

A woman coerced, by person other than her father or paternal grand-father, to marry, may ask the religious judge to annul the marriage on the basis of “unsuitability” in class, education, wealth or others. She may also request an annulment if she was made to agree to an arranged marriage during her legal minority. In this case, she can ask a religious judge to annul her marriage provided the following conditions are met: (1) the marriage was arranged by a person other than her father or paternal grand-father; (2) she has to request the annulment as soon as she becomes in her majority.

Request for termination of a marriage by the wife is permissible when the husband doe not support his wife with food, shelter and clothing (nafaqa) either due to poverty or he disappeared without leaving his wife with adequate support. However, opinions differ on this matter from one School of thought to another. The Hanafi School of jurisprudence does not encourage a divorce based on the husband’s inability to provide for spousal support (nafaqa). The Hanbali and Shafi’i Schools, for the purpose of maintaining a wife or let her go, agree with a request of termination of marriage by the wife.

The Hanafi School allows a wife to be separated and her marriage be annulled only if she received confirmed news that her husband has divorced her legally, died, or changed his religion and became apostate, otherwise, the wife is considered still married no matter how long the husband is absent.

Publication or reprinting this article is hereby authorized by the author.

Gabriel Sawma is a lawyer with Middle East background; Professor of Middle East Constitutional Law and Arabic. Admitted to the Lebanese Bar Association; Associate Member of the New York State Bar and the American Bar Associations. Editor of International Law web log, http://www.gabrielsawma.blogspot.com; Email: gabrielsawma@yahoo.com


Carlisle Collins said...

My dear Friend: You, as a lawyer, should know the difference between annulment and divorce! The conditions you are writing about pertain more to divorce after a valid marriage. Annulment is when the Marrying Authority decides that there was a defect or absence regarding the necessary conditions for a marriage to be valid; therefore, there was no marriage in the first place, i.e., it is annulled. Examples: 1. In the case of virgins, absence of Wali/Against the wishes of the Wali (guardian); 2. "Marriage" amongst a adulteress/fornicator/idolator vs. Virgin; 3. If she is pregnant from someone else's seed,etc. Brevity of information on such a serious topic spreads ignorance and makes illicit acts (e.g., eloping, "Love Marriages") seem socially acceptable in the guise of Islamic "Marriages". Peace!

lee woo said...

The final wisdom of life requires not the annulment of incongruity but the achievement of serenity within and above it. See the link below for more info.


lem said...

Good day atty,,i married a jordanisn citizen last september 2009 were both muslim he visit me here and philippines for 3 months staying...after 1month ago he decided to go back to his country and then he never contact me as of now its already 8 years past and now i want to void our marriage what shall i do atty? Tnx

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