What is tahleel marriage?

Praise
be to Allah

Firstly:

The husband is given the option of taking back his wife if he
has divorced her (by talaaq) twice, and this is called revocable divorce.
Allah, may He be exalted, says (interpretation of the meaning):

“The divorce
is twice, after that, either you retain her on reasonable terms or release
her with kindness”

[al-Baqarah 2:229].

If he divorces her a third time, then she becomes haraam for
him and it is not permissible for him to marry her with a new marriage
contract and mahr unless she marries someone other than him, in a valid and
genuine marriage, then he (second husband) consummates the marriage with
her, then divorces her or dies and leaves her a widow. Allah, may He be
exalted, says (interpretation of the meaning):

“And if he
has divorced her (the third time), then she is not lawful unto him
thereafter until she has married another husband. Then, if the other husband
divorces her, it is no sin on both of them that they reunite, provided they
feel that they can keep the limits ordained by Allah. These are the limits
of Allah, which He makes plain for the people who have knowledge”

[al-Baqarah 2:230].

It was narrated from ‘Aa’ishah (may Allah be pleased with
her) that Rifaa‘ah al-Qurazi married a woman then he divorced her, issuing a
third divorce. Then she married another man, then she came to the Prophet
(blessings and peace of Allah be upon him) and told him that he did not have
intercourse with her, and the Messenger (blessings and peace of Allah be
upon him) understood that she wanted to go back to Rifaa‘ah, so he
(blessings and peace of Allah be upon him) said: “No, not until he (the
second husband) tastes your sweetness and you taste his sweetness [a
metaphor for consummation of the marriage].”

Narrated by al-Bukhaari (5011) and Muslim (1433).

Secondly:

It is not permissible for the man who issued the divorce, or
for the woman, to use tricks to get around the laws of Allah and get back
together by means of what is called a tahleel marriage. This kind of
marriage takes several forms, including the following:

1.    

where the husband who had issued the divorce, or the
woman, or her guardian, hire a human “billy-goat”, and stipulate that he
must marry the divorced woman, consummate the marriage with her, then
divorce her, and they give him a sum of money in return for that!

2.    

Where a man marries that divorced woman without making
any agreement with anybody, but his aim is to make her permissible for the
first husband, then he divorces her.

Tahleel marriages are haraam and invalid, and those who do
that deserve to be cursed.

It was narrated that ‘Abdullah ibn Mas‘ood said: The
Messenger of Allah (blessings and peace of Allah be upon him) cursed the
muhallil and the muhallal lahu. [The muhallil is the one who marries a woman
and divorces her so that she can go back to her first husband, and the
muhallal lahu is the first husband] Narrated and classed as saheeh by at-Tirmidhi
(1120); also narrated by an-Nasaa’i (3416).

Al-Haafiz Ibn Hajar (may Allah have mercy on him) said:

It was classed as saheeh by Ibn Qattaan and Ibn Daqeeq al-‘Eid
according to the conditions of al-Bukhaari.

End quote from at-Talkhees al-Habeer (3/72)

Ibn al-Qayyim (may Allah have mercy on him) said:

With regard to the Prophet (blessings and peace of Allah be
upon him) cursing them [the muhallil and the muhallal lahu], this is either
telling that Allah, may He be exalted, has cursed them, or it is a
supplication for them to be cursed. This indicates that it is haraam and is
a major sin. End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad
(5/672)

It was narrated that ‘Uqbah ibn ‘Aamir said: The Messenger of
Allah (blessings and peace of Allah be upon him) said: “Shall I not tell you
of a borrowed billy-goat?” They said, Yes, O Messenger of Allah. He said,
“He is al-muhallil. May Allah curse al-muhallil and al-muhallal lahu.”

Narrated by Ibn Maajah (1936); classed as hasan by al-Albaani
in Saheeh Ibn Maajah.

These hadiths indicate that tahleel marriage is haraam, and
that it is a major sin; they also indicate that it is not valid.

It says in al-Mawsoo‘ah al-Fiqhiyyah (10/256, 257):

The majority of scholars – the Maalikis, Shaafa‘is, Hanbalis
and Abu Yoosuf among the Hanafis – are of the view that this kind of
marriage is invalid, because of the two hadiths quoted above, and because
marriage for the purpose of tahleel comes under the same heading as
temporary marriage, and stipulating that a marriage is to be temporary
renders it invalid. So long as the marriage is invalid, no tahleel occurs
thereby [i.e., it does not make it permissible for the woman to go back to
her first husband after the second marriage ends]. This is supported by the
view of ‘Umar (may Allah be pleased with him) who said: “By Allah, no
muhallil or muhallal lahu will be brought to me but I will stone them.” End
quote.

Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him)
said:

This is one of the most abhorrent kinds of falsehood, and one
of the gravest kinds of corruption. He is in effect a zaani (fornicator or
adulterer), because he did not marry her so that she could be a wife to him,
and keep him chaste and stay with him, and so that he might hope to have
children from her. No, rather he came as a borrowed billy-goat, to make her
permissible for the one who came before him, by having intercourse with her
once, then leaving her and finishing with her. This is the muhallil; his
marriage is invalid and is not legitimate, and she does not become
permissible for the first husband so long as (the second husband) married
her with this intention and for this purpose. It is an invalid marriage and
she is not permissible for him or for the first husband, because this is not
a marriage, and Allah says (interpretation of the meaning):
“until she has married another husband”
[al-Baqarah 2:230]. This
is a borrowed billy-goat, not a legitimate husband, and he does not make her
permissible for the first husband .

End quote from Fataawa ash-Shaykh Ibn Baaz (20/277,
278)

With regard to the prohibition on tahleel marriage and its
invalidity, it makes no difference whether the condition of tahleel is
specifically mentioned in the marriage contract or if the agreement is made
beforehand and not mentioned at the time of the marriage contract, or the
second husband had that intention without anybody stipulating it or coming
to some agreement to that effect with him. In all these cases it is a
tahleel marriage and is haraam.

Ibn al-Qayyim (may Allah have mercy on him) said:

There is no difference of opinion, according to the people of
Madinah, the scholars of hadith and the fuqaha’, whether that is stipulated
verbally or by implicit agreement and intention, because in their view the
intention behind contracts carries weight, and actions are judged by
intentions, and in their view a condition was agreed implicitly is like one
that was spoken aloud, because words are not sought in and of themselves,
but because of the meaning to which they point. So once the meaning and
intention become clear, the actual words do not matter, because they are
just the means (of expressing what is in the heart) and in this case that
aim has been achieved, therefore the rulings are to be based on the aims.

End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad
(5/110)

The scholars of the Standing Committee for Issuing Fatwas
said:

If a man marries a woman on condition that it be for the
purpose of tahleel, or he intends that, or they both agree to that, then the
marriage contract is invalid and the marriage is not legitimate.

End quote from Fataawa al-Lajnah ad-Daa’imah (18/439)

Al-Bayhaqi narrated in as-Sunan al-Kubra (7/208) from
Naafi‘ that he said: A man came to ‘Umar (may Allah be pleased with him) and
asked him about a man who divorced his wife three times, then a brother of
his married her without any prior agreement with him, so as to make her
permissible for his brother – does she become permissible for the first
husband? He said: No, unless it is a genuine marriage. We used to regard
this as fornication at the time of the Messenger of Allah (blessings and
peace of Allah be upon him).

Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allah have
mercy on him) said:

If the second husband has the intention that when he has made
her permissible for the first husband he will divorce her, then she does not
become permissible for the first husband, and the marriage is invalid. The
evidence for that is that this is the intention of tahleel, so it is
included in the curse. The Prophet (blessings and peace of Allah be upon
him) said: “Actions are but by intentions, and each person will have but
that which he intended.”

End quote from ash-Sharh al-Mumti‘ ‘ala Zaad al-Mustaqni‘
(12/176, 177).

Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him)
listed all the forms in one place, and regarded them all as forms of tahleel
marriage which is prohibited and invalid.

He (may Allah have mercy on him) said:

Tahleel marriage is haraam and invalid, and it does not make
it permissible (for the woman to go back to her first husband). What it
means is that if a man divorces his wife three times, then she becomes
haraam for him until she has married another husband, as Allah, may He be
exalted, states in His Book, and as is stated in the Sunnah of His Prophet
(blessings and peace of Allah be upon him), and the ummah is unanimously
agreed on that. If another man marries her with the intention of divorcing
her so that she will become permissible for her first husband, this marriage
is haraam and invalid, whether he decides after that to keep her or to leave
her, and whether that is stipulated in the marriage contract, or was
stipulated before the marriage contract, or was not stipulated verbally… Or
none of that happened; rather the man decided to marry her, then divorce her
so that she would become permissible for the one who had divorced her three
times, without the woman or her guardian being aware of any of that, whether
the husband who had divorced her three times was aware of it or not, such as
if the muhallil thought that this was a good deed and a favour to the man
who had divorced her and his wife, by helping her to go back to him because
he thought that the divorce had caused harm to them and their children and
their families, and so on.

In fact it is not permissible for the one who divorced his
wife three times to marry her again until she has been married by a man who
wanted a genuine marriage, not a sham marriage, and he consummated the
marriage with her in the sense that she tasted his sweetness and he tasted
her sweetness, then after that if they happened to be separated by death or
divorce or annulment of the marriage, then it is permissible for the first
one to marry her.… This is what is indicated by the Qur’an and Sunnah, and
it is what was narrated from the companions of the Messenger of Allah
(blessings and peace of Allah be upon him) and from all of those who
followed them in truth, and the majority of the Muslim fuqaha’. … This is
the view of Maalik ibn Anas and all his companions, and of al-Awzaa‘i, al-Layth
ibn Sa‘d, and Sufyaan ath-Thawri; it is also the view of Imam Ahmad ibn
Hanbal among the scholars of hadith, including Ishaaq ibn Raahawayh, Abu
‘Ubayd al-Qaasim ibn Salaam, Sulaymaan ibn Dawood al-Haashimi, Abu
Khaythamah Zuhayr ibn Harb, Abu Bakr ibn Abi Shaybah, Abu Ishaaq al-Jawzajaani
and others. It is also the view of ash-Shaafa‘i.

End quote from Iqaamat ad-Daleel ‘ala Ibtaal at-Tahleel
(p. 6-8). The author quoted many views from leading religious scholars
stating that it is haraam.

And Allah knows best.