What is the ruling on marriage without a guardian? And to whom does the guardianship transfer if the guardian is absent?
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The questioner : This is a matter in which some of the scholars of our country have been lax, and it is the matter of contracting marriage without a guardian.
The Shaykh : What?
The questioner : The matter of contracting marriage without a guardian.
The Shaykh : Without a guardian, yes.
The questioner : What is the ruling in this matter, with the evidence from the Book and the Sunnah? These scholars use excuses, saying: We are unable to inform the guardian if the woman is in a country other than the guardian's country. They also say: We are unable to reach him by telephone if the country is far away in the villages. If the contract is made in this manner and the guardian approves after seclusion or consummation, does this contract stand, or is a new contract required?
The Shaykh : First: May Allah reward you. Know that some scholars say: If the woman is sane and of legal age, she may marry herself and does not need a guardian. Perhaps the scholars among you hold this opinion, do you understand?
The questioner : What is the correct view?
The Shaykh : The correct view is that marriage is not valid except with a guardian. If the guardian is absent, the guardianship transfers to the one after him. For example, if her father is absent and she has an uncle, we tell her uncle: Marry her. If she has no relatives, the judge marries her. If there is no judge, the prince in her village marries her, do you understand? If there is no prince, she appoints whoever she sees as qualified for that.
The questioner : If this invalid contract has already taken place, we say: It is not valid. Does it affect inheritance, for example, if a child is born?
The Shaykh : If the husband, when he entered upon his wife who was married without a guardian, believed that the marriage was valid, then the child is his son. But if it becomes clear to him afterwards that the marriage was not valid, the contract is simply repeated.
The Shaykh : What?
The questioner : The matter of contracting marriage without a guardian.
The Shaykh : Without a guardian, yes.
The questioner : What is the ruling in this matter, with the evidence from the Book and the Sunnah? These scholars use excuses, saying: We are unable to inform the guardian if the woman is in a country other than the guardian's country. They also say: We are unable to reach him by telephone if the country is far away in the villages. If the contract is made in this manner and the guardian approves after seclusion or consummation, does this contract stand, or is a new contract required?
The Shaykh : First: May Allah reward you. Know that some scholars say: If the woman is sane and of legal age, she may marry herself and does not need a guardian. Perhaps the scholars among you hold this opinion, do you understand?
The questioner : What is the correct view?
The Shaykh : The correct view is that marriage is not valid except with a guardian. If the guardian is absent, the guardianship transfers to the one after him. For example, if her father is absent and she has an uncle, we tell her uncle: Marry her. If she has no relatives, the judge marries her. If there is no judge, the prince in her village marries her, do you understand? If there is no prince, she appoints whoever she sees as qualified for that.
The questioner : If this invalid contract has already taken place, we say: It is not valid. Does it affect inheritance, for example, if a child is born?
The Shaykh : If the husband, when he entered upon his wife who was married without a guardian, believed that the marriage was valid, then the child is his son. But if it becomes clear to him afterwards that the marriage was not valid, the contract is simply repeated.