The ruling on whether defective marriage requires divorce to be terminated
9-2-2016 | IslamWeb
Question:
Assalaamu alaykom. I got married in the Philippines in a Christian way and my husband is a Lebanese Muslim. When I reverted to Islam in Fanar after our marriage, he did not marry me again according to the sharia. When I got pregnant, I went back to the Philippines to deliver the baby. Last August, in 2014, after one month, my husband stopped financially supporting and no longer called and chatted with us on a daily basis. I am the one who sometimes calls him to ask how everything is. He says that he is fine but that he does not have a job. So it is understood that there is no money to send and that I have to deal with it. He only calls me whenever he feels like it. In January 2015, a lady that I personally know because she got married before with the help of my husband to one of his friends messaged me through Viber, informing me that she has been married to my husband ever since the Eid last year, in 2014. I was in full shock, so I immediately called my husband in Qatar, but he denied this and said a lot of bad things to me that I never imagined would come from the person whom I used to love. In short, we continue fighting to the point that there is no more love, and he even denies my baby just to hurt me and cursed my whole family because they are not Muslim yet. He even sold all my things just to buy gifts and gold to his new ladies and did not send anything for our baby. He even refunded my return ticket so that I could not go back to Qatar. But, praise be to Allaah, with Allaah's permission, there are some people who helped me to come back. Ever since the fighting started, I have been asking him to divorce me, but he did not want to give me that and even said that he will punish me and keep me hanging while he enjoys life with his new wives. One day, news came to me that he was deported from Qatar and sent back to Lebanon because he was accused of terrorism in August. My question is: what is the status of our marriage now, and what if I want to marry again? What do I need to do because I do not want to go back to him anymore after all the things that he did.
Answer:
All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah and that Muhammad 
is His slave and Messenger.
Firstly, we would like to congratulate you for embracing Islam, for which we implore Allaah, The Exalted, to reward you with the good of this worldly life and the Hereafter. We advise you to constantly turn to Allaah in supplication and implore Him to facilitate your affairs and relieve your distress; verily, Allaah answers the supplications of the distressed one when he calls upon Him and relieves hardship. He says (what means): {Is He (not best) Who responds to the desperate one when he calls upon Him and removes evil and makes you inheritors of the earth? Is there a deity with Allaah? Little do you remember.} [Quran 27:62]
Please, refer to fataawa 88296 and 92363 about the virtues and merits of supplication and its etiquette.
We also advise you to be patient; indeed, patience brings about nothing but good in the worldly life and the Hereafter. Allaah, The Exalted, elevates one's ranks (in Paradise) and forgives his sins when he holds on to patience; please refer to fatwa 83577 about the virtues of patience.
The scholars underlined the due conditions for the validity of a marriage contract in Islam, as detailed in fatwa 83629. The wali (legal guardian) of the Christian or Jewish bride must be an adherent of her religion when marrying a Muslim man. The two witnesses must be Muslims, according to the view of the majority of scholars. If any of these conditions is missing, then the marriage is declared faasid (defective); however, any child born in such a defective marriage is attributed to the father (husband); parentage is legitimately attributed to the father due to their mistaken belief that their contract was lawful. Please refer to fatwa084811.
The termination of such a defective marriage can be done through either a legal annulment or a divorce; some scholars, though, advised that there is no need for a marriage annulment or divorce in this case. Ibn Qudaamah 
wrote:
"If a woman got married through a defective marriage contract, then it is impermissible for her to marry another man unless the first man divorces her or that marriage is terminated by means of a court-decreed divorce or a legal annulment. If he refuses to divorce her, then the Muslim ruler issues the marriage annulment to terminate the marriage. This view was stated by Imaam Ahmad. Imaam Ash-Shaafiʻi said, 'There is no need for annulment or divorce because the marriage contract is not valid to begin with, like the case with a marriage contracted during the woman's ʻiddah (waiting period)...'" [Al-Mughni]
Given the difference of opinion in this regard, you should refer your case to the local Islamic court and the judge will relieve you from the injustice of that man.
As stated above, the child born to the spouses in a defective marriage is attributed to the husband, and he is not entitled to deny parentage in such a case as long as he did not disclaim parentage upon being informed of the pregnancy. The majority of Muslim jurists stipulate that the husband can only disclaim the paternity of the child at the time of its birth or his becoming aware of it if he was absent with no delay (provided that he has not previously acknowledged his paternity or acquiesced its being attributed to him at an earlier stage). The Kuwaiti Encyclopedia of Fiqh reads:
"If a married woman gives birth to a child, then he must be attributed to the husband (the owner of the bed). If he wants to disclaim paternity of the child by performing 'liʻaan' (i.e. when a husband accuses his wife of Zina [adultery] and each of the spouses makes an oath that he/she is truthful in his claim and then asks Allaah to curse the one who is lying), then according to the view of the Maalikis, Hanbalis, and the preponderant opinion of the Shaafiʻis according to Imaam Ash-Shaafi'i's new Mathhab (al-Jadeed, i.e. his opinions, by way of written and oral transmission, after his arrival in Egypt until his passing), he may deny paternity immediately upon becoming aware of the child's birth if possible. If he delays disclaiming paternity for no valid excuse, then the parentage of the child is established and cannot be denied in any possible way." [End of quote]
Lastly, we would like to highlight two points:
Firstly, the teachings of Islam command the husband to live with his wife in kindness abiding by the verse that reads (what means): {And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allaah makes therein much good.} [Quran 4:19] Moreover, Abu Hurayrah 
narrated that the Prophet said, "I urge you to act kindly towards women and to be good to them." [Al-Bukhari and Muslim]
Secondly, it is required of the Muslim to guard his tongue from swearing and cursing. It has been reported on the authority of ʻAbdullaah ibn Masʻood that the Prophet said, "The believer does not slander or curse nor does he speak in an outrageous, foul, or vulgar manner." [Ahmad and At-Tirmithi]
Allaah knows best.