Aḥmad ibn Ḥanbal and Dāwūd al-Ẓāhirī take the same position.
Abū Ḥanīfah, Sufyān al-Thawrī, and Ibn Abī Laylā say that the man must keep the wives he married first; if he entered into a single contract that included them all, separation is enforced between him and every one of them.
Ibn al-Mājishūn—one of Mālik’s disciples—holds that if a man embraces Islam while married to two sisters, he must part with them both and may afterwards contract anew with whichever of the two he wishes. No other Mālikī is known to have shared this opinion.
The reason for their disagreement is the clash between analogical reasoning (qiyās) and transmitted reports (athar). Two narrations are cited:
- Mālik’s mursal report that Ghaylān ibn Salamah al-Thaqafī became Muslim while he had ten wives, all of whom also entered Islam, whereupon the Messenger of Allah ﷺ ordered him to choose any four of them.
- The ḥadīth of Qays ibn al-Ḥārith, who accepted Islam while married to two sisters, and the Messenger of Allah ﷺ said to him, “Choose whichever of the two you wish.”
The analogy opposed to these reports likens the pre-Islamic contract with the later wives to a post-Islamic contract with them—arguing that, just as such a contract is invalid in Islam, it was invalid beforehand as well. This analogy, however, is weak.
If only one of the spouses embraces Islam first (the second scenario) and the other converts later, the jurists again differ.
Mālik, Abū Ḥanīfah, and al-Shāfiʿī maintain that when the woman converts first, the husband has the strongest claim to her should he convert during her waiting period (ʿiddah); if both embrace Islam together, their marriage stands. They adduce the report of Ṣafwān ibn Umayyah: his wife ʿĀtikah bint al-Walīd ibn al-Mughīrah embraced Islam before him, he converted later, and the Messenger of Allah ﷺ confirmed their marriage. They add that roughly a month separated the conversion of Ṣafwān from that of his wife.
Ibn Shihāb said, “We have not heard of any woman who emigrated to the Messenger of Allah ﷺ while her husband remained a disbeliever in the land of unbelief without her emigration separating her from him—unless he too emigrated before her ʿiddah expired.”
When the husband converts before the wife, the scholars again diverge. Mālik says that if the husband becomes Muslim first, separation occurs once Islam is offered to the wife and she declines. Al-Shāfiʿī counters that whether the man converts before the woman or the woman before the man, if the second conversion takes place during the waiting period the marriage remains valid.
Their disagreement turns on the tension between a general Qur’anic command and specific reports and analogical arguments. The general statement of the Exalted—“And do not hold fast to the bonds of disbelieving women” (al-Mumtahanah 60:10)—calls for immediate separation. Opposing this is the report that Abū Sufyān ibn Ḥarb embraced Islam before his wife Hind bint ʿUtbah, his conversion occurring at Marr az-Zahrān, and then