By IslamOnline.net, Reprinted from "Ask the Scholar"
Wa `alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear brother in Islam, thanks for this important question which touches a critical issue that many people misunderstand.
In Islam, the family has been protected in many ways. An outstanding approach to safeguard the basic unit of the family, the husband-wife relationship, is the restrictions imposed by the Shari`ah on the husband so as not to hasten to dissolve this relation and break up the family because of a passing passion or insignificant disputes.
The Shari`ah has also given two chances for the reunion of the family. However, to regulate the matter and discipline the husband it has warned him against playing with the limits of Almighty Allah and misusing his right of divorce. Thus, the Shari`ah declared the third divorce as the final one after which the husband cannot take back his wife unless she marries another man and gets divorced.
However, this process has to go naturally without any previous agreement to circumvent Shari`ah regulations. Actions are determined by intentions, not by the formal procedures that may deceive people but can never deceive the Lord of the people.
Responding to the question, Sheikh M.S. al Munajjid, prominent Saudi Muslim lecturer and author, said:
If a man divorces his wife for the third time, she is not permissible for him to marry until she has married another man, because Almighty Allah says: (And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband)(Al-Baqarah 2: 230).
It is stipulated that this marriage, which will make her permissible for her first husband, should be a valid marriage! Temporary marriage (mut`ahmarriage) or marriage for the purpose of making her permissible for her first husband then divorcing her (tahleel marriage or so-called "halala") are both haram and invalid according to the vast majority of scholars. Moreover, this form of marriage does not make the woman permissible for her first husband.
There are sahih hadiths from the Prophet (peace and blessings be upon him) which show that tahleel marriage is haram.
Abu Dawud narrated that the Prophet (peace and blessings be upon him) said: “Allah has cursed the muhallil and the muhallallahu".
The muhallilis the one who marries a woman and divorces her so that she can return to her first husband, and the muhallallahuis the first husband.
IbnMajah narrated from `Uqbah ibn `Aamir that the Prophet (peace and blessings be upon him) said: “Shall I not tell you of a borrowed billy-goat?” They said, Yes, O Messenger of Allah. He said, “He is al-muhallil. May Allah curse al-muhalliland al-muhallal lahu.”
`Abd al-Razzaq narrated that `Umar ibn al-Khattab said while addressing the people: “By Allah, no muhallilor muhallallahu will be brought to me but I will stone them.” (i.e. as an adulterer).
This applies whether he states his intention clearly when doing the marriage contract and they stipulate that when he has made her permissible for her first husband he will divorce her, or they do not stipulate that and he only intends it to himself.
Al-Hakim narrated from Nafi` that a man said to Ibn `Umar: I married a woman and made her permissible for her first husband, and he did not tell me to do that and he did not know. He said: Any marriage should be based on genuine desire; if you like her then keep her, and if you do not like her then leave her. He said: "At the time of the Messenger of Allah (peace and blessings be upon him) we would regard that as zinaa" (illegitimate sexual intercourse). And, he said: "They will still be adulterers, even if they remain (married) for twenty years."
Imam Ahmad was asked about a man who married a woman intending thereby in his heart to make her permissible for her first husband, but the woman did not know about that. He said: He is a muhallil, and if he intends thereby to make her permissible for her first husband, then he is cursed.
Based on that, it is not permissible for you to marry this woman if by doing so you intend to make her permissible for her first husband. Doing so is a major sin, and the marriage will not be valid, rather it is zina Allah forbid.