May The Spouse Of A Person, Who Has Been Missing For A While And There Is No Information As To Whether The Missing Is Alive, Marry To Someone Else?
May the spouse of a person, who has been missing for a while and there is no information as to whether the missing is alive, marry to someone else?
A person who has gone missing and nothing has been heard from him is called “mafqud (missing person).” Faqihs have different opinions about the right to divorce of the spouse of a missing person. Hanafis adopted the opinion that the “death decision by court” would require “the death of the missing person’s peers or the maximum time they could live on average”; moreover they did not consider this situation as a justification enabling the termination of the marriage” by the court, upon the application of the missing person’s spouse (Sarakhsi, al-Mabsut, XI, 35-36).
In the Hanbali madhhab, at the end of the assumed average lifetime of the mafqud (missing) person, it is concluded that the person in question might have passed away (Kharashi, Sharh al-Mukhtasar, IV, 149-151). That is also the case according to the Shafiʽi madhhab (Shafiʽi, al-Umm, VI, 608-609; Shirbini, Mughni al-Muhtaj, III, 520-521).
According to Maliki madhhab, judges make the necessary research upon the application of his spouse. In the event that there is no hope left to hear about him, it is necessary to wait for a period that lasts four years. Following the expiration of this waiting period, the judge gives a ruling for the divorce and the woman may marry to someone else after observing the iddah period necessary for the assumed death of the husband (Sahnun, al-Mudawwana, III, 742-743; Zuhayli, al-Fiqh al-Islami, V, 784-785). This subject is ruled in accordance to the latter opinion in Ottoman Decree of Family Law dated 1917. This ruling is more suitable to yield good results. Accordingly, a woman who has not heard from her husband for four years or more may apply to court to divorce according to this last opinion. In the event that court divorces her, she may marry to another man after waiting for death iddah (Ottoman Family Law, art. 126, 127).
Source: Presidency Of Religious Affairs The Turkey, High Board of Religious Affairs FATWA
