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Can I Marry My Cohabitant?

Answered according to Maliki Fiqh by BinBayyah.net

I have an unmarried younger brother who had illicit sexual intercourse with an unmarried girl. He wants to marry her for one month and then divorce her. He also wants her to take the contraceptive injection for one year so that their affair should not be discovered, a matter that will cause undesirable results. I know that there is a difference of opinion over the ruling of marrying a woman who had illicit sexual intercourse and over the ruling of marrying with the intention of divorce. Should we give preponderance to divorce in this case, weighing up the benefits and harms? Those who are concerned agree that there is some benefit – in order to conceal their affair and not to cause problems for her – if he should marry her for a certain period of time away from the family, and then divorce her. What do you advise?

All praise is due to Allah. Peace and blessings be upon the Messenger of Allah. The issue is controversial, but the principle is that it is permissible to marry a woman who had illicit sexual intercourse, though scholars differed over the necessity of her repentance. There is also a difference of opinion concerning the issue of seeking the clarity of her womb; that is, whether it is permissible to marry her before seeking the clarity of her womb with one period, or having to wait until after this. This is a controversial issue.
Al-Shafi`i and Abu Hanifah maintained that it is permissible to marry her before seeking the clarity of her womb. Imam Ahmad and Malik maintained that it is a must to seek the clarity of her womb first, but they differed whether this should be with one or three instances of menstruation. This opinion is based on the hadith that reads “He who believes in Allah and in the Last Day shall not water the seeds of someone else (a figurative expression for having sex with a woman who might have conceived from a previous sexual relation.)” [Reported by Abu Dawud (2158) and al-Termidhy (1131).] But in this case the seed is his.
Thus, he may marry her. But it will be more proper to wait until she menstruates. `Umar (may Allah be pleased with him) wanted to marry a woman to a man who had illicit sexual relation with her after he had applied the prescribed penalty on them. This is an authentic report (see al-Musannaf by Ibn Abu Shaybah 3:52; Sunan al-Bayhaqi 7:155; al-Muhalla 10:28; Mawsu`at Fiqh `Umar ibn al-Khattab, p.649-50.) Therefore, I see that he may marry this woman to conceal their past affair and that he should ask her to repent to Allah, the Almighty.
As for the intention to divorce her, if he does not pronounce it at the time of concluding the marriage and they have not mutually agreed on this, it will have no effect, according to the majority of the scholars. He can marry her with the intention of divorcing her provided that such an intention should not be included in the marriage contract by saying something like “I marry you for such and such period of time”. Such an inclusion will make it a sort of the unlawful temporary marriage. However, before the marriage he should demand her to repent; and when he perceives her repentance, he may marry her. He also should not state a time limit for the marriage when concluding it. Then, he may divorce her whenever he likes. What he will do in the future is not to be taken into consideration in this regard. Moreover, he, together with the family of this woman, should admonish her to fear Allah, the Almighty.
Nevertheless, should he intend to continue the marriage with her, this will be better. Perhaps Almighty Allah will amend their affairs and guide them to make up for what they spoiled in the past by making sincere repentance to Him, as illustrated in the hadith that reads “He who repents from a sin is like the one who committed no sin.” [reported by Ibn Majah (4250) with a good chain of narrators.]

This answer was collected from BinBayyah.net, which contains of feature articles and fatawa by world renowned ‘Alim, Sheikh Abdullah Bin Bayyah, from Mauritania.

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