Marrying the Wife of a Missing Husband, Presuming Him Dead

Question

Zayd, angry with his wife, left her and went away. Four years passed. Zayd's brother Bakr, thinking that Zayd might perhaps have died, himself married his brother's wife in Zayd's absence. When Zayd learned of this, he wrote a letter of divorce and sent it. When Bakr learned of it, he said to Zayd: “Since you are present, you are her owner; I am leaving her.” In whose nikah is she now? Will halala (her marrying another husband as a condition for becoming lawful again to the former one) be needed or not?

Answer

The nikah that the brother contracted in his brother's absence was not permissible. Then, when it became known that he was alive, he left his wife — the original nikah had not come to an end through this; therefore halala is not needed. If, however, he (the husband) has written and sent three talaqs, then the final (mughallaza)

Source: Fatawa Mahmudiyya

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