What is the legal consequence if a non-Muslim husband has contracted marriage but not consummated it with a non-Muslim wife, and then one of them converts to Islam?
Chapter on Marriage of Polytheists
Al-Mughni
Book of Marriage
Primary text
If one of two pagan or Magian spouses, or a People of the Book married to a pagan or Magian woman, converts to Islam before consummation, separation between them occurs immediately upon the conversion of one party. This separation is a dissolution (Faskh) and not a divorce (Talaq). This view is held by Al-Shafi'i. The evidence rests on the principle that the difference in religion prevents the continuation of the marriage contract, thus mandating immediate separation before consummation, similar to apostasy (Riddah). Furthermore, if the husband is the one who converted, he is prohibited from keeping a disbelieving wife, based on the verse: {And do not hold fast to the bonds of marriage with disbelieving women} (Quran 60:10). If the wife is the one who converted, it is impermissible to keep her married to a polytheist.
Supporting text
Abu Hanifa holds that separation is not immediate. If they are in the Abode of Islam, Islam is offered to the other spouse; if refused, separation occurs then. If they are in the Abode of War, the matter is suspended until the end of the waiting period ('Iddah); if the other spouse does not convert, separation occurs. If the refusal comes from the husband, it constitutes divorce because the separation originates from him, similar to an explicit pronouncement. If it comes from the wife, it is a dissolution because a woman does not possess the right to divorce. Malik holds that if the wife converts, Islam is offered to the husband; if he converts, the marriage continues, otherwise separation occurs. If the husband converts, separation is immediate, citing the verse: {And do not hold fast to the bonds of marriage with disbelieving women} (Quran 60:10).