Cancel this marriage contract and do a new legal one

Question

I want to ask you a question about my life and me. I met a guy in 1993 who was a Muslim, we fell in love and we lived together. In 1995 he was imprisoned and then I became Muslim. We tried to get married since he had no legal papers, and no passport we cannot get married in Swedish way. I went to the Masjid and tried to get help from them, they too denied to help us in getting married. I had a friend who was married to an Imam. He told us that he will come to the prison and help us to get married but the authorities denied that. Then my husband told me that we have to swear by Allah that we want to get married and thus we will be married. Now it is 2003, we have 3 kids, 

I have learned more about Islam, and I started to wonder if our marriage was Halal or Haram. He is out now (he came out from the prison in 1998). Since that time we have been living together and every one around us treats with us like married couple. We had no witnesses, and there was no one except Allah. 

Now I want to ask a scholar about this marriage. When he came out from prison started hitting me, threatening me with knives and throwing things at me. I want now to get a divorce, some people say that we are married so I have to observe an Iddah, some other say that we are not married so I have to wait only one menstruation period because we have been living in Zina since 1995. 

Please help me.

Answer

Praise be to Allah, the Lord of the Worlds; and may His blessings and peace be upon our Prophet Muhammad and upon all his Family and Companions. First, we pray to Allah Almighty that He may keep you and us steadfast on His Religion till we meet Him. You have to be grateful to Allah (SWT) for guiding you to Islam, which is the greatest bliss Allah ever bestowed upon you. 

As to your marriage from that man without the presence of your Wali (guardian) and witnesses, it is invalid. If you are willing to continue in your marital relationship then you have to renew the marriage contract with all its conditions and prerequisites, such as the presence of Wali and witnesses. 

But if you would like to discontinue this marriage then there is no need for divorce because you are not legally married. 

The sexual intercourse that you had with your husband during the past period is not considered fornication, rather doubtful marriage. Children in this case are to be annexed to their father, but you have to be divorced immediately for if you have sex after you have known the ruling then you will be committing fornication. 

If you wish to remarry this person then you do not have to have Iddah 'Iddah. But if you want to get married to someone else, then in this case, you have to have Iddah for three successive menstruation periods. In his al-Mughni, Ibn Qudamah said: A woman who has been doubtfully cohabited (as a wife) has to have Iddah as a divorcee. The same thing is applicable to the woman whose marriage is invalid. This was the opinion of Ash-Shafi'e , for the point of doubt relating to engaging the womb and issues related to lineage are similar to the legal and valid marriage. So the procedures followed in relation to attaining certainty (by having Iddah) are the same. He also said: She who is in the state of Iddah after illegal marriage such as fornication, doubtful marriage or invalid marriage, then the judgement of our School is that her marriage is unlawful whether to her cohabiter or someone else. It is more appropriate to consider her marriage lawful if it is with the same husband from whom she is staying in Iddah if her child carries his lineage. This is so, because the reason behind Iddah is to preserve his water (sperm from being mixed with other sperms) as well as the lineage. And there is no importance to preserve the husband's illegal and legal sperm from getting intermixed and this has no influence on the lineage. 

Allah knows best.

-islamweb.net