This is a very important question, and we thank Allāh that scholars and jurists have addressed many related issues in the books of Islamic jurisprudence.
The summary of what has been written on this topic is as follows:
First: The matter of a woman remarrying after her husband’s prolonged absence, then his return:
The jurists differed on the ruling for a woman who marries another man after presuming her first husband to be dead:
- The majority of scholars—including the Ḥanafīs, Shāfi῾īs, and Ḥanbalīs—hold that the second marriage is valid unless the first husband returns. If the first husband returns at any time and under any condition (even after many years, and even if she had children from the second husband), then the second marriage is nullified, she must observe ῾iddah from it, and she returns to the first husband without needing a new marriage contract.
Their evidence includes the ḥadīth reported by Al-Mughīrah in which the Prophet (peace and blessings be upon him) said: “The wife of a missing person remains his wife until her husband returns.”
And the narration reported by Al-Ḥākim from ῾Alī ibn Abī Ṭālib: “The wife of a missing person is not to remarry until his death or divorce is confirmed.”
Since the first husband returned and did not issue a divorce, the ruling of the first marriage remains, and the second marriage is thus void.
- The Mālikī school, on the other hand, holds that the first marriage is dissolved due to the legal duration of absence, and if she remarries and the second husband consummates the marriage, then the first marriage is canceled.
The correct view in our opinion is that this matter returns to the judgment of a qāḍī (Islamic judge), who considers the following:
- The length of the first husband’s absence and the duration of the second marriage.
- Whether children resulted from the second marriage.
- Whether the woman formally separated from the first husband through khul῾ (divorce initiated by a woman in exchange for compensation) either by returning the mahr (dowry) to him or his family.
- Which situation is better for the woman’s well-being.
If the judge rules in favor of the woman staying with the second husband, then she must waive all marital rights from the first husband so that she does not benefit from two husbands at the same time.
Second: The matter of inheritance:
According to the majority of scholars, if a missing person returns, their wealth is to be returned to them.
However, the more correct view requires further detail, as wealth is of different types:
- Consumable Wealth:
This includes items that can only be used by being consumed, such as food and drink. These cannot be returned, as they are no longer available. - Usable Wealth:
These are items that can be used while remaining intact, such as real estate, vehicles, factories, etc. These must be returned to the previously presumed-dead person once he returns, because the reason for transferring ownership (his supposed death) has now been invalidated.
Fatwā issued by Dr. Khālid Naṣr
