The Marriage and Divorce of an Ill-Person
The Hanafi, the Shafi’i and the Hanbali schools say: Marriage during illness is similar to marriage during health in respect of each spouse inheriting from the other, irrespective of whether the marriage is consummated or not. In this context an 'ill person' means one in his death-illness.
The Malikis observe: If a marriage contract is concluded during the illness of either spouse, the marriage will be considered invalid except where it has been consummated. (al-Mughni, bab al-fara'id)
The Imamiyyah state: If a person marries during death-illness and dies before consummation, the wife will neither be entitled to mahr nor inheritance from him. Further, he will not be entitled to inherit her if she dies before him, prior to consummation, and then he dies after her as a result of that illness (al-Jawahir, bab al-mirath). If a woman marries during death-illness, the rule applicable to a healthy woman applies to her concerning the right of the husband to inherit from her.
The schools concur that if an ill person divorces his wife and dies before the completion of the 'iddah, the wife will inherit from him irrespective of the revocability or irrevocability of the divorce.1 They also concur that she will not inherit if he dies after the completion of her 'iddah and before her marriage with another. The Malikis and the Hanbalis observe: She will inherit regardless of the length of time.
The Hanafi and the Shafi’i schools state: After the completion of her 'iddah she becomes a stranger and is not entitled to any share in the inheritance. (al-Mughni, bab al-fara’id)
This opinion is in accordance with the Islamic jurisprudential principles, because the marital bond snaps on the completion of the 'iddah, making her marriage with others permissible, and every woman whose marriage with others becomes permissible does not inherit from her former husband. This principle cannot be departed from except on the presence of a Qur'anic verse or a confirmed tradition.
The Imamiyyah say: If a husband divorces his wife during his death-illness in a revocable or irrevocable manner (as in the case of a triple, menopausal divorcee with whom marriage has not been consummated), and then dies before the completion of one year from the date of divorce, she will inherit from him if the following three conditions are fulfilled:
1. that his death be the result of the illness during which he divorced her;
2. that she should not have remarried;
3. that the divorce should not have been given on her demand.
They base these conditions on the traditions of the Ahl al-Bayt ('a).
- 1. This is the earlier opinion of al-Shafi'i; his latter opinion is that a divorcee of a revocable divorce inherits during 'iddah, while a divorcee of an irrevocable divorce does not.