In a marriage whose validity is agreed upon, divorce takes effect without any problem; this is unanimously accepted by the Muslims.

In a marriage whose invalidity is agreed upon, divorce does not take effect, because the marriage itself is invalid, and divorce is contingent upon marriage. If the marriage is invalid, there can be no divorce. For example, if a man unknowingly marries his foster sister, that marriage is invalid by the unanimous agreement of the Muslims, and divorce does not take effect therein. Likewise, if he marries a woman who is observing her waiting period, divorce does not take effect therein, because the scholars are unanimously agreed that it is impermissible to marry a woman in her waiting period, due to the saying of Allah, Exalted is He:

“And do not resolve on the marriage contract until the prescribed period reaches its end.” [al-Baqarah 2:235]

As for a marriage whose validity is disputed, there are two possible cases:

The first is that the person who entered into the marriage considers it valid. If he considers it valid, then divorce takes effect, without any issue. An example is a man who marries a woman who was breastfed by his mother three times, while he holds that the prohibitive degree of breastfeeding is five feedings. In his view, the marriage is valid, so divorce undoubtedly takes effect in it.

Likewise, if he marries a woman without witnesses, while holding that witnesses are not a condition for marriage, divorce takes effect.

The second is that the person who entered into the marriage does not consider the marriage valid. The scholars differed over whether divorce takes effect. Some held that divorce takes effect, while others held that it does not. Those who said that it does not take effect argued that divorce is contingent upon marriage, and this person does not regard the marriage as valid; thus, his divorce does not take effect. This is a sound and acceptable line of reasoning. Those who held that it does take effect argued that