Nikah through a Fuduli in the Case of an Oath of Divorce

Question

Zayd compelled a man to swear the following oath: “I have sworn that whenever I marry, my woman will be divorced (talaq).” After that Zayd did that deed. Some years later he married, and a child was also born. Now, on being reminded by someone, he remembered his oath; from the time he married until now he had not remembered the oath. What should he do now? (1) Did talaq fall on the woman or not? (2) What is the ruling concerning the child? (3) What is the way to live with her again? (4)

Answer

(1) Talaq has fallen. (2) Because of shubhat al-‘aqd (the doubt arising from the existence of a contract), the child’s lineage is established. (3) Let some fuduli (an unauthorised person acting on another’s behalf) contract his nikah, while he remains silent: he should not accept with his tongue, but give permission by an act.

Source: Fatawa Mahmudiyya

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