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Fatwas / Marriage and Breastfeeding / Fake marriage: Its types and ruling.

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What is the ruling on fake marriages? الــزواج الصــوري صوره وحكمه


 All praise is due to Allah alone, and may the Salah and Salam of Allah be upon our Prophet Muhammad, his family and his companions. To answer your question, we say while seeking all the success from Allah: A fake marriage refers to the case when a couple claims that they are married to each other either by presenting a marriage contract, stating that verbally, or acting as such without really intending it. There are three scenarios for fake marriages: The first scenario is when a man and woman claim to be married. In this case, their claim could be truthful or false. However, in both cases, whether this claim is true or false, it is not enough to establish the marriage. The second scenario is when a man and woman pretend to conduct a marriage contract and fulfill its requirements. In this case, some scholars would consider it similar to marriage in jest (i.e. a marriage in which the parties lack the required intent to marry). However, assuming the similarity between the two cases seems to be untenable because when marriage is done in jest, the statement uttered is not actually intended whereas when it is done in pretense, the person utters a statement that someone else would utter while intending it, regardless of whether this someone is imaginary or known; therefore neither marriage nor divorce is established in this case. The third scenario is when a man and woman utter statements that indicate offer and acceptance and two witnesses are present. In this case, the marriage is established even if it is not intended i.e. it is done only to gain a benefit or avert harm. The same applies to divorce too. Some contemporary scholars believe that this type is similar to marriage in jest; therefore they hold two opinions about its ruling. The first view states that it is considered a valid marriage contract with all that that entails, just as it is the case with marriage in jest, according to the majority of scholars from the four Madhabs. The second view states that it is void and does not entail anything, which is one of the views in the Maliki Madhab regarding marriage in jest. However, while treating both cases as one can be tenable since a joke refers to when a person says or does something without intending it, the argument is still problematic because a joke is nothing but an in vain action that brings forth no benefit and does not avert harm whereas in the case (i.e. the third scenario), benefit is attained and harm is averted; therefore it cannot be considered similar to jest. The most likely correct view, however, is that if a person had to utter a statement whereby marriage is established such as uttering statements of offering or acceptance, or uttering a statement of divorce, the ruling is that such statements do not entail the rulings of marriage or divorce. This view can be backed up by the following hadith: Abu Hurairah (may Allah be pleased with him) narrated that the Prophet (may the Salah and Salam of Allah be upon him) said: “While Abraham and Sarah (his wife) were going (on a journey), they passed by the territory of a tyrant. Someone said to the tyrant: "This man (Abraham) is accompanied by a very beautiful lady." So, he sent for Abraham and asked him about Sarah saying "Who is this lady?" Abraham said: "She is my sister." Abraham went to Sarah said "O Sarah! There are no believers on the surface of the earth except you and me.” Reported by al-Bukhari (2217) and Muslim (2371) The part that is evidence in this hadith is when Prophet Ibrahim said to his wife that she is his sister because if this statement is taken according to its apparent meaning then it would have been considered dhihaar (claiming one`s wife is sexually impermissible like an unmarriageable woman) or tahreem (stating that she is unlawful for him), but since it was said due to necessity, the statement did not entail the rulings of dhihar or tahreem. The title used by al-Bukhari for the section of this hadith state that if a man is forced to say that his wife is his sister, then that does not entail anything.”   And Allah knows best.



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