The witnesses of my marriage were not there. Is my marriage valid? (Shafi’i)

Answered by Shaykh Abdurragmaan Khan

Question: Assalam alaykum,

An imam was my wali (guardian) for my marriage.Though the imam brought two witnesses, they did not appear in front of us. They did not hear or see the marriage happening. Now I’m living together with my husband. Is my marriage valid?

Answer: Wa alaykum al-Salam

Shukran for your question.

The arkan or elements of a marriage contract – over and above the husband and wife – are as follows:

1. The formula

The formula consists of an offering and compliance. The Shafi’is are strict on the wording of both the offering of the Wali or his representative and the compliance of the Husband. The offering usually reads, “I marry off to you your fiancee, my daughter (or the daughter of so and so), for the mahr that you agreed upon”; and the compliance, “I accept her hand in marriage for myself, for the agreed upon mahr”.

2. The Wali

The Prophet sallaLlahu alayhi wasallam said, “There is no marriage without a Wali.” From this the Shafi’is understood that a marriage that takes place without a Wali is invalid. Your wali is your father, then your grandfather, then your brother, then your paternal uncle, then your paternal uncle’s son and so forth. If you have a living Wali, the Imam may not act as your wali. Should he do so, the marriage will be invalid.

Yes, in the absence of a living wali you may appoint an Imam or a religious person to act as your wali (tawliyah). Similarly, you may appoint a scholar to act as an ad hoc judge (tahkim) for the specific purpose of conducting your marriage. This however only applies in non-Islamic countries, due to the absence of authoritative Islamic courts.

3. Two witnesses

RasuluLlah sallaLlahu alayhi wasallam said, “There is no marriage without a wali and two witnesses of integrity.” Again the position of the Shafi’is and the vast majority of scholars is that a marriage performed without witnesses, is invalid. In addition, the witnesses have to be male; they should be present; they should hear and see the formula being pronounced. In the absence of these conditions, their testimony or being witnesses for a marriage is not correct, and the marriage would consequently be invalid.

Conclusion

If you have a living wali, then your marriage is invalid, since you married without his consent. If you do not have a wali, the marriage is still problematic as you did not officially appoint the Imam to act as your wali. In addition, it would seem that the witnesses may not have observed the marriage contract by listening and seeing the offering and compliance as explained above – you mentioned that they were outside your home when the marriage contract took place. This serves as an additional reason for the invalidity of your marriage.

Nonetheless, because of the uncertainty and obscurity (shubhah) of the situation, you and your “husband” are not considered sinful. If any children were conceived they are considered legitimate. What remains however, is that you will have to remarry as soon as possible, ensuring that all the elements mentioned above are fulfilled.

May Allah bless you in this union, Amin.

Wassalam
[Shaykh] Abdurragmaan Khan

Shaykh Abdurragmaan received ijazah ’ammah from various luminaries, including but not restricted to: Habib Umar ibn Hafiz—a personality who affected him greatly and who has changed his relationship with Allah, Maulana Yusuf Karaan—the former Mufti of Cape Town; Habib ‘Ali al-Mashhur—the current Mufti of Tarim; Habib ‘Umar al-Jaylani—the Shafi‘i Mufti of Makkah; Sayyid Ahmad bin Abi Bakr al-Hibshi; Habib Kadhim as-Saqqaf; Shaykh Mahmud Sa’id Mamduh; Maulana Abdul Hafiz al-Makki; Shaykh Ala ad-Din al-Afghani; Maulana Fazlur Rahman al-Azami and Shaykh Yahya al-Gawthani amongst others.