Consequence of apostasy after consummation on the marriage contract when both spouses are Muslim.
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
If one spouse apostatizes after consummation, and the apostate does not return to Islam before the waiting period ends, the marriage is dissolved from the moment the two religions diverged. There are two differing narrations from Ahmad regarding this situation. The first narration aligns with the view of Abu Hanifa, Malik, Al-Hasan, Umar ibn Abdul Aziz, Al-Thawri, Zufar, Abu Thawr, and Ibn al-Mundhir, holding that the separation is immediate because whatever necessitates dissolution, whether before or after consummation, causes immediate separation, similar to what occurs through nursing (Rada'ah).
Supporting text
The second narration holds that the separation is contingent upon the end of the waiting period. If the apostate returns to Islam before the period concludes, they remain married. If not, separation occurs retroactively to the time the religious difference arose. This is the position of Al-Shafi'i. This second view holds that since apostasy after consummation is an act causing potential separation, it can rightly be suspended upon the completion of the waiting period, analogous to revocable divorce or religious divergence after cohabitation, which does not mandate immediate dissolution, such as a non-Muslim woman marrying a hostile non-Muslim man. If the separation is immediate, the wife is not entitled to maintenance because she is already irrevocably separated. If the separation is suspended, and the wife is the apostate, she has no right to maintenance as the husband cannot take her back or rectify the marriage. If the husband is the apostate, he owes her maintenance for the waiting period because he has the means to embrace Islam and salvage the marriage, making maintenance obligatory upon him, similar to a revocable divorce.