Firstly, we differentiate between issuing a fatwa and clarifying a legal ruling. Fatwa pertains to the current situation, while the legal ruling explains the religious ruling before the situation arises.

Secondly, marriage, in its essence, consists of pillars and conditions. Some are inherent to the contract, such as offer and acceptance, while others stem from societal customs and public order, such as witnesses for notification.

Some of these pillar and conditions are explicit in the contract, like the dowry, while others are implicit, such as maintenance and transfer of authority.

Thus, the nature of the marriage contract combines what is religiously stipulated and what is customary.

The same thing applies to divorce, because it is the dissolution of the marriage contract, which involves the termination of marriage’s terms and obligations.

Among modern social and legal norms, which emerged with the era of regulation, is the documentation of marriage and divorce, making documentation a prerequisite akin to testimony which is the way of notification, and the rule is that a known custom is like a stipulated condition (al-῾urf al-ma῾rūf ka-ash-sharṭ al-mashrūṭ).

Therefore, for marriage to be binding, documentation is required, and for divorce to be binding, documentation is required. However, there might be other conditions from a religious point of view.

Documentation, in general, falls under the five rulings of accountability, and in the marriage and divorce contracts, it has become obligatory (sinful if neglected but may not invalidate the contract).

Accordingly, this woman cannot marry another until she completes the legal divorce proceedings and documents her divorce. Similar situations occur in Islamic countries, where a husband verbally divorces his wife, and she remains in her status until a judge decrees divorce or issues her a divorce certificate.

This addresses the legal ruling.

The following inquiry may arise in terms of this fatwa:

Can the laws of marriage and divorce applied in a specific country alter the legal ruling by not considering this a divorce in the presented scenario? If this occurs, does it entail that she is still under the custody of her first husband who divorced her verbally? Or is she forbidden to live with him nor marry another until she completes the legal proceedings? And if so, isn’t this harmful to her?

I say: There is a distinction between the occurrence of marriage and divorce and the wife’s eligibility for remarriage.

Regarding marriage and divorce, they are verbal contracts as long as their pillars and conditions are fulfilled. For documentation, it is a mandatory procedure that does not affect the validity of the contract.

The purpose of documentation is to guarantee rights, minimize risks, and safeguard the interests of both parties in case of dispute.

Documentation is not for proving validity of marriage but to counter denial, which is a significant distinction.

Therefore, the woman who was verbally divorced and completed her waiting period is religiously divorced. However, it is prohibited for her to marry until she completes the civil divorce proceedings and absolves herself from obligations, and if she marries another before that, she would be sinful, even if the marriage contract is religiously valid.

Fatwa issued by Dr. Khālid Naṣr