Question Summary:
Marriage before divorce

Question Detail:

There is a woman who was abused by her husband who was an alcoholic, so therefore, she left her country to North America. She thought she was divorce automatically because someone told her that since she was away from her husband for one year, she becomes automatically divorced.
She met a muslim man at work and he confirmed to her that she indeed was not divorced in her situation. As they got to know each other, they fell in love and even committed zina. Finally, the woman got her divorce papers, and completed her iddah period. During iddah, both man and woman stopped seeing each other, and felt remorseful and guilty for their sins and made Taubah and repented to Allah.
They are planning on getting married soon.I wanted to know if their marriage is valid? 

Answer :

In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.


In principle, a woman is not at liberty to issue her own divorce. The divorce must be issued by her husband.
If the husband is abusive to his wife and does not agree to divorce her upon her request, than the wife is at free will to file her complaint to a Qādhī (Judge) in a Muslim country or Muslim Judicial Committee in a non-Muslim country to annul the marriage, after which the Qādhī or Judicial Body will investigate the matter. If the Qādhī or Judicial Body annuls the marriage after correct Sharī measures, then the marriage will stand annulled.
Hence, in the enquired case, if the husband did not divorce the woman in reference, and neither was her marriage annulled by a Muslim Qādhī or Muslim Judicial Committee, then her previous marriage still stands. Her application of a divorce in the secular court system is not considered a divorce in terms of Sharīah. She is not at liberty to get married to another man.
If the woman wants a divorce, she should request her husband for a divorce. She may offer a sum of money or agree to return back her Mahr in lieu of a divorce.[1] If the husband denies all offers, then the woman may file an application for annulment of marriage to a Judicial Committee which may serve as a Qādhī in annulling the marriage.[2]
If her husband divorces her or her marriage is annulled by a Muslim Judicial Committee, she may marry the man in reference after passing her Iddah period. Merely obtaining divorce papers from court without the husband divorcing her does not constitute divorce.
The woman may consider contacting Ulamā who are acquainted with the laws of Faskh (annulment of marriage). If she is unaware of such Ulamā, she may contact us on the following email address and we will refer her to competent Ulamā residing in North America Insha Allah:admin@daruliftaa.net
  
And Allah Ta’āla Knows Best
Abdul Azīm bin Abdur Rahman,
Student Darul Iftaa
U.S.A.
Checked and Approved by,
Mufti Ebrahim Desai.