If a woman (non-Muslim) gets married to a non-Muslim man, then later converts to Islam, should she divorce her non-Muslim husband?

Assalamu Alaykum Wa Rahmatullahi Wa Barakatuh

All praise and gratitude are due to Allah SWT. May the blessings and peace of Allah SWT be upon His Messenger PBUH.

The scholars unanimously agreed that if the spouses convert to Islam together, their existing marriage will remain valid and intact, whether accepting Islam was before or after consummation of marriage. “During early Islam, the Prophet PBUH approved the marriages of people when they became Muslim.” The Messenger of Allah did not ask them about the conditions of marriage, or how it was conducted. This is an established matter with Tawattur, or ‘broad authentication’ (Ibn al-Qayyim al-Jawziyyah, Ahkam Ahl al-Dhimmah, 2:640)

The scholars also agreed that if the spouses converted to Islam together but there was a reason between them for prohibition of the marriage, such as blood relationship or through breastfeeding from same woman, a compulsory separation will occur between them for that reason.

If there is no reason between them for prohibition of the marriage and the wife is of the People of the Book, that is a Christian or Jew, then they also will remain a married couple legally, because the marriage between them was valid from the beginning, so its legitimacy will remain intact. (Badr al-Din al-‘Ayni, Al-Binayah:, 5:243).

But if the husband converted to Islam on his own and the wife was not of the People of Book, or the wife converted to Islam on her own, the jurists differed on that with four opinions. Each opinion is Islamically valid and has its Shari’ evidence.

We present the opinions with their respective evidence:

The first opinion: 

The marriage is legally valid as long as the woman does not marry another person. According to the scholars of this opinion, the marriage of the couple is not interrupted when one of the spouses converted to Islam.

This is the opinion of Ibn Taymiyyah (Majmu al Fatawa, 32:337), along with Ibn Al-Qayyim (Ahkam Ahl al-Dhimmah, 1:641).

Its evidence: 

1. Ibn Abbas, may Allah be pleased with him, narrated: “In relation to the Prophet PBUH and the believers, the polytheists in the times of the Holy Prophet were of two types. One who were at war with the Prophet and the believers. . who were in covenant with the Prophet and believers. They did not fight with each other. If a woman of those who were at war migrated, she would not get engaged until she menstruated and purified. When she became purified from her monthly cycle, it was permissible for her to marry. But, if the husband emigrated and she did not marry anyone else, she would be returned to him” (Sahih Al-Bukhari, 5001). The expression, “she would be returned to him” indicates that the wife (being in his wedlock) will return to him even if takes a long time (Ibn Hajar al-‘Asqalani, Fath Al-Bari, 9:385).

2. Ibn Abbas reported, “The Prophet, may Allah’s prayers and peace be upon him, returned his daughter Zainab to her husband, Abu Al-Aas bin Al-Rabea, with the first marriage, and And in another narration: “Returning his daughter Zainab to Abu Al-Aas, and her conversion to Islam was six years before his conversion to Islam after the first marriage, and he did not make the condition of witness or dowry (mahr)” (Sunan Abi Dawood (2240) and Sunan Al-Tirmidhi (1151)).

The inference from this hadith is that the Prophet PBUH returned his daughter Zainab to her husband, Abu al-Aas, and that was after a long time, during which the waiting period (known in Arabic as the Iddah) had expired. The Iddah is relevant in that Talaq (divorce) is generally finalised upon the completion of the waiting period.

3. On the authority of Ibn Abbas, may God be pleased with them both, he said: “A woman converted to Islam at the time of the Messenger of Allah PBUH and she got married. Later on, her husband came to the Messenger of Allah PBUH and said, ‘O Messenger of Allah I am Muslim now and she (my wife) knows of my reversion to Islam. The Messenger of Allah took her from her second husband and returned her to her first husband (Sunan Abi Dawud 2239).

The point of inference:  The Messenger of God PBUH returned the wife when her husband mentioned that he had converted to Islam and she knew of his conversion, and he did not ask him whether they embraced Islam together, or whether he converted to Islam before her waiting period expired.  Disregarding that the separation occurred after the woman accepted Islam indicates that the Lawgiver made it absolute and inclusive for the marriage to

4. That the Prophet PBUH did not differentiate between what was before the end of the and what followed it. Ikrimah bin Abi Jahl came to the Prophet PBUH to Medina after his return from the siege of Taif. The Prophet divided the spoils of Hunayn in [the month of] Dhul Qi’dah, while the conquest of Mecca was in Ramadan, so this was about three months, and the waiting period would have expired in it. He kept Ikramah on his marriage and did not ask his wife whether her waiting period expired or not. He PBUH also did not ask any woman about her waiting period, although many of them converted to Islam after a period during which the waiting period may have expired.

5. On the authority of Abdullah bin Yazid Al-Khatmi, it was said: A woman from the people of Al-Hirah converted to Islam, but her husband did not, so Umar bin Al-Khattab wrote about her: “If they choose to keep her, then it is up to her, if she wishes, she can leave her husband, and if she wishes, she can stay with him.” This was narrated by Abd Al-Razzaq in his Musannaf 10083, and authenticated by Al-Hafiz Ibn Hajar in Fath Al-Bari (9:421).

The point of inference: Umar, may Allah be pleased with him, gave her the choice between waiting for him until he becomes Muslim, so she can live with him as his wife or leaving him. Umar (may Allah be pleased with him) did not set an end date, nor a waiting period nor anything else.

The second opinion: 

If one of the spouses converted to Islam before consummation of the marriage, the separation between spouses will take place immediately. But if one of them converted to Islam after consummation, then the separation depends on the of the woman.

This is the opinion held by Shafi’is (al-Umm, Muhammad b. Idris al-Shafi’I, 5:48), Hanbalis (al-Mughni, Ibn Quddamah, 7:151) and the Malikis, however, they made it conditional by stating that “if the husband accepted Islam, his non-believer wife would be presented with Islam; if she accepts it their marriage will remain intact otherwise invalidated straight away” (al-Mudawwanah, Malik b. Anas, 2:212).

Their evidence is that if the one who converted to Islam is the husband, then he does not have the right to keep a non-believer woman because Allah the Almighty says, “And do not hold back the disbelieving women in (your) wedlock” (Quran, 60:10). If the wife is the one who converted to Islam, then it is not permissible to keep her in the marriage of an idolater, as stated in Kitab al-Sharh al-Kabir ala al-Muqanna, Ibn Quddamah al-Maqdasi 7:595).

Their evidence that separation after consummation depends on the end of the waiting period:

• Ibn Shihab reported that he heard that many women in the era of the Prophet PBUH remained on their lands and they did not immigrate. One of them was the daughter of Al-Walid ibn al-Mughira, the wife of Safwan ibn Umayyah. She accepted Islam on the day Makkah was conquered while her husband fled away.  Ibn Shihab mentioned a long hadith until he said: “Safwan went out with the Messenger of Allah, may Allah’s prayers and peace be upon him, while he was an infidel, so he witnessed Hunayn and Al-Taif while he was an infidel and his wife was a Muslim”. Ibn Shihab continued to say, “There were about two months between Safwan’s conversion to Islam and his wife’s conversion to Islam, and we are not aware of a single report that a woman migrated to God and His Messenger and her husband remained an infidel residing in the abode of infidelity and her migration has not separated her from her husband except when her husband immigrated and accepted before her waiting period expired(Malik ibn Anas, al-Muattah, 2002).

• Abdullah ibn Shubrumah reported, “During the time of the Messenger of Allah, may Allah bless him and grant him peace, spouses used to accept Islam before one another. But, if any of the two converted to Islam before the woman’s waiting period expires, then the marriage remained intact, and if the husband converted to Islam after the waiting period, then there is no marriage between them.” [Abd al-Rahman bin Qasim, Kitab Hashia al-Rawdh al-Murabba’, 6:359). 

The Third Opinion:

This is the opinion of the Hanafis.  If one of the spouses accepts Islam, the other will be presented with the religion of Islam and be given dawah. If he or she converts to Islam, the marriage will remain valid. If the non-Muslim spouse refuses to accept Islam, it will be up to the Qadi alone (the judge or other Islamic authority) to make the decision to separate them.

Al-Marghinani said: “If a woman becomes Muslim, and her husband is an infidel, Islam is offered to him, and if he becomes Muslim she will remain his wife, and if he refuses, the judge separates them” (Al-Marghinani, Al-Hidaya, 2:346). If the separation was not carried out under the authority of the Qadi or another legitimately recognised legal authority (like the court) the marriage will remain intact. This is because the acceptance of Islam by one partner cannot be a logical reason for an automatic separation between spouses as some might believe. An automatic separation will not occur, because accepting Islam is by definition pure submission to Allah and His Prophet PBUH. In fact, the Hanafis state that based upon the values of Islam, the acceptance of the religion should entail a search for reasons to keep the marriage intact. An automatic separation purely due to the acceptance of Islam would therefore be contrary to fundamental Islamic social values.

Their Evidence:

1. Yazid bin Alqamah reported that Ubadah bin Al-Nu’man al-Taghlabi was married to a woman from Bani Tamim, and she converted to Islam. Umar ibn Khattab RA offered to him to either accept Islam or be separated from his wife. He refused to accept Islam, so Umar (may Allah be please with him) separated her from from him (Ibn Abi Shaybah, Al-Musannaf, 10:237).     

2. Al-Sarakhsi said, “A farmer accepted Islam in the times of Ali RA; he invited his wife to Islam and she refused, so Ali separated them.” (Al-Sarakhsi, Al-Mabsut, 5:46).

The inference from the above reports is that in the time of the caliphates of Umar RA and Ali RA there were cases in marriages where one spouse accepted Islam, and the caliph presented Islam to the non-Muslim spouse (after one of the spouses accepted Islam) in the presence of the companions and no one objected to their approaches. Thus, it became a consensus. However, the spouses refused to accept Islam and therefore Umar and Ali went through the formal separation process. We can understand that if separation between the spouses would have occurred automatically, due to one of them accepting Islam, the caliphs would have plainly stated that to be a fact or would have acted upon it. Rather, they presupposed the validity of the marriage despite the acceptance of Islam from one spouse and acted upon that by carrying out a formal separation. Indeed, this would have not been required had the separation occurred by default. Hence, some scholars say that it is not the acceptance of Islam that may end a marriage but rather the clear refusal to accept.

The fourth opinion: 

The marriage is annulled as soon as one of the spouses becomes Muslim, even if the other becomes Muslim shortly after the first, with or without the authority of a Qadi, and with no need to present Islam to the other spouse. This opinion was held by Ibn Hazm, and it is also attributed to Imam Ahmad as one of his opinions (Ibn Quddamah, Al-Mughni, 7:151).

Their evidence:

1. The verse in Surat Al-Mumtahanah, “O believers! When the believing women come to you as emigrants, test their intentions—their faith is best known to Allah—and if you find them to be believers, then do not send them back to the disbelievers. These [women] are not lawful [wives] for the disbelievers, nor are the disbelievers lawful [husbands] for them. [But] repay the disbelievers whatever [dowries] they had paid. And there is no blame on you if you marry these [women] as long as you pay them their dowries. And do not hold on to marriage with polytheistic women.²[But] demand [repayment of] whatever [dowries] you had paid, and let the disbelievers do the same. That is the judgment of Allah—He judges between you. And Allah is All-Knowing, All-Wise” (Al-Quran 60:10).

2. Yazid b. Alqamah said that his grandfather and grandmother were Christians, so his grandmother converted to Islam, so Umar bin Al-Khattab, may Allah be pleased with him, separated them.

The points of inference

1. Allah forbids the return of the believing woman to the unbeliever, where ‘return’ here refers to the continuation of the marriage.

2. Allah commanded the return of the dowry, and if the separation did not occur due to the difference of religion, he would not have commanded the return of the dowry. (Shams al-Din al-Zarakhshi, Kitab Sharh al-Zarakhshi, 5:207).

May Allah SWT keep us steadfast on the right path of Islam.

And Allah Knows Best.