Is marriage without a Wali for a divorcee woman valid?

Question

I found recently that all women should have a wali or wakil (lawyer) to represent them during the Nikah otherwise it is not valid.

This is my second marriage.

Before the marriage, I told him I need someone to represent me because I have no male relative, the Imam who did our Nikah had told me I don't need one and I can represent myself because I was a divorcee and two of his relatives witnessed the Nikah and that's enough.

We have a child together now.

I have the following questions:

• Was the Nikah valid?

• Have I committed a sin because I didn't know?

• What can I do or how can I repent?

• What will make of our child if the Nikah was not valid? (Illegitimate?)

I'm scare, afraid I committed a sin unintentionally. Any guidance would be gladly appreciated.

FYI - That imam did not represent me and said it is not required

Answer 1

The condition of guardianship (wilayah) for marriage is a contested matter among jurists.

The Maliki school contains two opinions wherein one stipulates that guardianship is a condition of the validity of marriage and one states that it is only recommended.

The Shafii school holds the opinion of the obligation of guardianship.

In the Hanafi school and with some other prominent scholars such as Al-Zuhri if a women marries someone of equal status that she can marry without the permission of her guardian.

The issue of divorced women is raised by the Dhahiri school on the basis of an authentic narration in Sahih Muslim whereby Ibn Abbas (ra) reported Allah's Messenger ﷺ as saying: A deflowered woman has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.” It is on the basis of this hadith that they conclude that guardianship is not required for non-virgin women as a condition for marriage.

Also Quran 2:232 - "And when you have divorced women and they have ended-- their term (of waiting), then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner" clearly forbids putting impediments for divorced women in marrying giving additional support for the Dhahiri position.

In addition the Hadiths which are explicitly requiring a wali are disputed in their authenticity and in the case of Aishah it is reported she acted in contradiction to the hadith reported on her behalf and married a woman without her wali being present.

Finally we are not required to all be scholars and you relied on the opinion of an Imam that you trusted who gave you a position supported by a number of reputable scholars of Islam which should be sufficient as proof in your heart and mind before Allah (SWT) of the validity of your marriage. May Allah bless your family.

Your brother in Islam

Answer 2

I would agree with @qidnar's Answer about the proofs.
Now about the Madhabs (Mazhbas): among the 4 sunni schools, only abu Hanifa allowed a divorced woman to marry on her own, as she has experience with marriage and therefore should know what is good and the best for her!
This is justification of the Hanafi Madhab for this, as an interpretation of this hadith:

Ibn Abbas (Allah be pleased with them) reported Allah's Messenger (ﷺ) as saying: A woman who has been previously married (Thayyib) has more right to her person than her guardian. And a virgin should also be consulted, and her silence implies her consent.

But any other of the 4 Sunni Madhabs would say a wali is necessary for any marriage according to the following Hadith and Athar

Abu Musa narrated that : the Messenger of Allah said: "There is no marriage except with a Wali." (Sunan at-Tirmidhi)

Umar ibn al-Khattab said, "A woman is only married with the consent of her guardian, someone of her family with sound judgement or the Sultan. (Muwatta' - Al Imam Malik)

But other Ahadith make clear that a divorced woman has more rights then her wali, while a virgin has less rights then her wali in choosing a husband or agreeing for marriage.

About Wali and Wakil as far as i understand the wakil is someone who represents the wali, who's acting in his name as an authorized representative!

And Allah knows best!

Answer 3

what you found recently is about wali, not about wakil. wakil is not always required, only in few cases. wakil represents, wali patronizes.

i think probably imam has done according his knowledge or even according to rulings of a mazhab , so probably he does not think himself sinful because they think they should just follow a mazhab.

i do not know rulings of mazhabs and i think this this way:

1) wali should be present in any nikah and wali should say whether he agree with nikah or not;

2) if bride is a matron, she should say whether she agree to the marriage or not and her opinion is stronger than opinion of her wali, even if the wali do not agree (she can marry or not marry regardless what wali thinks).

3) if bride is a virgin and she is shy she has not to say aloud that she is agree to the marriage and her opinion is stronger than opinion of her wali only if she does not agree (if she agree but wali does not, she cannot marry).

proofs:

http://sunnah.com/tirmidhi/11/22 : Abu Musa narrated that : the Messenger of Allah said: "There is no marriage except with a Wali."

http://sunnah.com/tirmidhi/11/29 : Ibn Abbas narrated that: The Messenger of Allah said: "The matron has more right to herself than her Wali, and the virgin is to give permission for herself, and her silence is her permission."

http://sunnah.com/bukhari/67/72 : The Prophet (ﷺ) said, "A matron should not be given in marriage except after consulting her; and a virgin should not be given in marriage except after her permission." The people asked, "O Allah's Messenger (ﷺ)! How can we know her permission?" He said, "Her silence (indicates her permission).

answers to questions:

Was the Nikah valid? - yes, because you did no have knowledge and followed a person with more islamic knowledge, it is ok due to a quran ayat. additionally, even if wali was needed, as in my opinion, and as you think/afraid it might be, he could not force you to marry or not to marry, you just could follow your wali's opinion by yourself.

Have I committed a sin because I didn't know? - you probably did not make sin neither by your behavior, because, even if it was incorrect behviour, as soon as you did not know, you are not sinful for your that behaviour, and you are not probably sinful for not knowing that at first place because that is quite advanced topic and you could not know so much things, and also it is probably even a disagreement among different islamic scholars, so several different resulting opinions looks quite right do different scholars and you need to know quite much to have your own opinion.

What can I do or how can I repent? - i think you need not to repent or do anything else now. if you do not think it useless time spending, maybe you can make nikah second time just to make yourself more secure from sins?! but probably you should just ask allah to forgive you for that you did not asked for source texts for nikah?

What will make of our child if the Nikah was not valid? (Illegitimate?) - since i think your nikah is valid i do not answer.

Answer 4

http://www.bakkah.net/en/dont-play-games-with-wilaayah-the-right-of-being-the-walee-for-a-marriage.htm

Asalam alaikoum wa rahmat Allah wa barakatouh,

I have been researching on this, and found that the wali is necessary during the nikah, otherwise the marriage is null and void as stated in the Hadith of our beloved prophet peace and blessings upon him. In sha Allah you will find all the quotes and references in the link.. may it be of much benefit. Now the wali is for divorced and virgins as well.

Answer 5

Wali in Hanafi Fiqh is not mandatory. In other fiqh its imposition is rather strict. In some scholars opinion, however, a mature woman like you may represent herself in giving herself in marriage to a suitable person it is still worthwhile if the Imam or the Incharge of the Islamic Center or an adult Muslim could have stepped forward to be a "wali" Asking for forgiveness and kaffarah should put your mind to rest.

Answer 6

If this is your second marriage, there is no need to vakil, but if it is your first marriage , you need a vakil ... The complete sentence is that if you are bakereh, you need a vakil, but if you aren't, you can do your marriage without any vakil ...

Answer 7

I haven't see any rule that wali only applies to virgin.

But wali is mandatory for a marriage, so it have to be someone to be wali.