Answered by Sidi Talal al-Azem
If a non-Muslim married woman converts to Islam and divorces her non-Muslim husband, does she have to observe the iddah in his home?
In the name of Allah, all praise is due to Allah, And prayers and salutations be upon the Messenger of Allah.
A: There are several assumptions in this question. In order to answer the question in a way that would not pose new ones, the answer will be given in three parts:
(a) is the woman considered immediately divorced upon converting to Islam, and what procedures are to be taken?
(b) is there a waiting period (‘idda) for such a woman?;
(c) can she remain living alone with the non-Muslim husband in their marriage home after her becoming Muslim?
(a) Is the woman considered immediately divorced upon converting to Islam, and if not, what procedures are to be taken?
If a married, non-Muslim woman becomes Muslim in non-Muslim lands, the husband and wife are not considered immediately legally separated. Rather, the husband is given a “grace period”, namely the length of a regular post-marital waiting period (‘idda) [three menstrual cycles for a woman who has menstrual cycles, or three months for those who don’t] before she is considered legally separated from him in the eyes of the Sacred Law. Imam Quduri writes in his Mukhtasar:
“If a woman embraces Islam in Dar al-Harb, her separation [from her husband] is not effected until she has completed three full menstrual periods (t: all of which were after her becoming a Muslim). [When she has completed the three menstrual periods], she becomes separated from her husband.” [Mukhtasar al-Quduri, chapter on “Marriage”]
The reasoning behind this, as Ibn Abidin explains, is that there is no Muslim judge, in non-Muslim lands, to legally separate between them. Thus, this “grace period” takes the effective place of the judge; the completion of the “grace period” is what becomes the effective legal cause (‘illa) of separation, in place of the judge passing such an order. [Radd al-Muhtar, 2/389].
My teacher in fiqh, Shaykh Khaled al-Kharsa, also comments that part of the wisdom of the grace period is that it gives the man a chance to think about Islam, since he is not in a Muslim country, there is no Muslim judge to decisively educate him about and offer him Islam, and he is thus unable to make an immediate decision.
If the non-Muslim husband then decides to become Muslim within the “grace period”, their marriage is considered standing, and continues without their having to write a new contract.
If, however, at the end of the “grace period”, he has not become Muslim, the separation is considered a legal separation and, according to the dominant position in the madhhab, a non-revocable divorce [Ibn Abidin, quoting from al-Bahr, 2/389-390. Thus, she is free to remarry thereafter; if he became Muslim at any point thereafter, they would not be considered married, and would require a new marriage contract in order to remarry; he would also only possess two further divorces as a Muslim.
(b) Is there a waiting period (‘idda) for such a woman?
However, this “grace period” is not a post-marital waiting period (‘idda), because such a “grace period” would equally apply in the case that the marriage had not yet been consummated, in which case no waiting period (‘idda) would be necessary [Ibn Abidin, 2/390].
The answer to this question actually poses another: if this grace period is completed, the man does not accept Islam, and they are thus legally separated, must the woman observe the post-marital waiting period (‘idda)?
Two scenarios are possible:
(1) if she remains in non-Muslim lands, or
(2) if she emigrates permanently to lands under the jurisdiction of Muslim law.
If she remains in non-Muslim lands: If a woman converts, her husband does not convert during the “grace period”, and she continues residing in non-Muslim lands during it and after its completion, there is no waiting period (‘idda) due from her. She is considered legally separated from the husband after the completion of the three menstrual-period “grace period” [Radd al-Muhtar, 2/614]; and a non-revocable divorce (baynuna) is effectuated.
However, if she is pregnant, she is not to remarry until she delivers her pregnancy. And Allah knows best.
(2) If she emigrates permanently to lands under the jurisdiction of Muslim law: If a woman converts, then leaves the non-Muslim lands with the intention of permanent emigration (hijra) to Muslim lands, and completes the “grace period”, Imam Abu Hanifa holds that there is no waiting period due from her, though, if pregnant, she may not marry until she delivers her pregnancy. [Radd al-Muhtar, 2/390, 2/391]
(c) Can she remain living alone with the non-Muslim husband in their marriage home after her becoming Muslim?
If a married, non-Muslim woman converts to Islam, regardless of whether in Muslim or non-Muslim lands, it would not be permissible for her to remain living with the non-Muslim husband after her converting, if he refuses to also convert. They may not carry on any form of marital relationships, and she would have to refrain from being in any form of seclusion (khalwa) with him, since a Muslim woman cannot be in seclusion with a non-Muslim man.
There are several reasons for this, including that a non-Muslim possesses no sovereignty over a Muslim woman; and no marital relations are permitted between a Muslim woman and a non-Muslim man. One may logically understand how this all relates to the converted woman in a non-Muslim marriage as follows: if married life is intrinsically not permitted between a non-Muslim man and a Muslim woman; and if the scholars mention that a woman in the waiting period of a non-revocable divorce (ba’in) is not to observe her waiting period (‘idda) at the home of a corrupt (fasiq) husband; on what basis is a Muslim woman to remain with a non-Muslim man (whom there is more to fear from than a corrupt Muslim, in such matters) in his home, alone?
In Muslim Lands:
The key difference between the procedures mentioned above in non-Muslim lands, and those which would occur in lands in which (at least) the personal law of the Sacred Law are in effect, is that there would be no grace period; the judge (qadi) would offer Islam to the spouse, upon whose acceptance or rejection the matter would be decided. Imam al-Quduri writes:
“If a woman embraces Islam and her husband is an unbeliever, the judge presents Islam to him: if he accepts Islam, she is [still] his wife; if he refuses, [the judge] legally separates them.” [Mukhtasar al-Quduri, chapter on “Marriage”]
If they are separated, it is likewise considered a non-revocable divorce. [Ibn Abidin, Quduri].
Thus, in reply to the original question:
[Side note: great wisdom should be applied by those calling people to Islam; at times forbidden actions may be overlooked and kept silent about for the greater benefit of saving a human soul from disbelief. In other words, one should always remember when dealing with potential converts or newly-converted Muslims: there is no sin as great as disbelief (kufr), since every sin may be forgiven save it.]
Final note: If a married man converts, and he is married to a non Muslim woman:
What would occur if a man converts to Islam, and he is married to a non-Muslim woman?
If the woman were not marriageable for a Muslim man (ex. she were a polytheist, atheist, etc.), the answer would largely be the same as that given above: if in a non-Muslim country, there would be a grace period, they could not continue their marital relations during the grace period, and they would be legally separated at the end of the grace period; in a Muslim country, the woman would be offered Islam by the judge, who would then rule accordingly. The only difference would be that the separation would not be considered a divorce, since it was caused by the woman’s refusing to become Muslim; thus, if she were to convert and they were to remarry in the future, the man would still possess three divorces. [Radd al-Muhtar, 2/389-390].
If the woman were from the People of the Book, however, their marriage would stand, as “what is permissible to initiate, is permissible to continue and uphold”; i.e. since a Muslim man is permitted to marry women who are from the People of the Book, if a non-Muslim man converts to Islam, and his wife is from the People of the Book, their marriage stands. [Radd al-Muhtar, 2/390].
And Allah knows best.
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